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George Rose Smith, J.
Tliis suit grows out of a collision between a gravel truck owned by the appellee Martin, and a truck and trailer owned by the appellants, a partnership doing business as Dr. Pepper Bottling Company. Loyce Nutt, who was driving Martin’s truck, was killed in the collision, and this suit was brought by his widow against the Bottling Company. The latter brought Martin into the case, and the owners of the two vehicles asserted claims against each other for their property damage. Carl Wagner, who was riding with Nutt when the accident occurred, intervened to assert a claim against the Bottling Company for personal injuries. The jury returned verdicts for Mrs. Nutt for $15,000 and for Martin for $800. The Bottling Company appeals, and Wagner, having failed to receive a verdict, cross appeals.
Upon the direct appeal the Bottling Company’s principal contention is that it was entitled to a directed verdict. The testimony as to the cause of the collision, which occurred at night, is in direct conflict. Wagner testified that he observed, the Bottling Company’s truck and trailer approaching at about fifty miles an hour. Nutt dimmed his headlights, but the driver of the other vehicle failed to dim his, which were of blinding intensity. According to Wagner the oncoming vehicle was weaving back and forth across the center of the highway, and just before the collision the Bottling Company’s truck crossed the black center line and struck the gravel truck. Nutt had applied his brakes and brought his vehicle almost to. a stop when the collision took place.
This testimony was sufficient to make a case for the jury. It is true that other witnesses testified positively that it was the gravel truck that was on the wrong-side of the highway, but this dispute merely raised an issue of credibility for tlie jury. Nor cau we accept the appellants’ insistence that the uncontroverted physical facts are so contrary to Wagner’s testimony as to destroy its force. The appellants rely strongly on several photographs taken soon after the accident, all indicating that the gravel truck was then slightly across the center line, whereas the appellants’ truck came to rest in the ditch on its own side of the highway. We have pointed out, however, that unlooked for results often attend a collision as violent as this one must have been. Alldread v. Mills, 211 Ark. 99, 199 S. W. 2d 571. The appellants’ deductions from the photographs and from the condition of the damaged vehicles are very persuasive, but they do not reconstruct the train of events so indisputably that reasonable men could not have accepted Wagner’s version.
It is also contended by the Bottling Company that there was a fatal defect of parties plaintiff. Our statute provides that actions for wrongful death shall be brought by the decedent’s personal representative, but if there be none the suit may be brought by the widow and heirs. Ark. Stats. 1947, § 27-904; St. L., I. M. & S. Ry. Co. v. Watson, 97 Ark. 560, 134 S. W. 949. In this case there was neither allegation nor proof as to whether a personal representative had been appointed for Nutt’s estate. The complaint was filed in the widow’s name alone and alleged that Nutt was survived by the plaintiff and by a two-year-old son. It was further averred that “this plaintiff and her infant son” had been damaged in various sums for loss of support, companionship, etc. It was clearly the pleader’s intention to assert both causes of action, and by its terms the jury’s verdict compensates both the widow and the child.
The objection now urged, that the child was not a plaintiff, comes too late. Mrs. Nutt, as her child’s next friend and natural guardian, was entitled to act for him, even though the strict rules of pleading required the child to be named in the style of the complaint. The Bottling Company could have raised its present point by demurrer, plea in abatement, or answer, but instead it pleaded to tlie merits. The case was tried and submitted to the jury upon the tacit assumption that the child would be bound by a favorable or adverse verdict. Had the objection been made at any time during the trial it would have been a simple matter for Mrs. Nutt’s attorney to interline the infant’s name in the complaint, especially as the mother had the power to act for her son. Not even in its motion for new trial did the Bottling Company complain that the child, though tacitly recog-nized as a party, was not named in the style of the pleadings. In these circumstances the point was waived. Of course even now the Company has the right to demand that a guardian be appointed to receive the amount awarded by the jury for the child’s benefit.
It is also insisted that abstract instructions were given and that incompetent evidence was admitted. As to the former, inferences could have been drawn from the testimony to support the giving of the instructions, and in any event we do not see how the jury could have been misled or confused. Equity Mutual Ins. Co. v. Merrill, 215 Ark. 483, 221 S. W. 2d 2.
As to the evidence, the main complaint is directed against the appellees’ Exhibit C — a photograph, taken in daylight, that shows the highway in question for a considerable distance.. This picture was offered in evidence while Wagner was on the witness stand. A little earlier in the trial there had been received in evidence another photograph, designated Exhibit B, which showed the position of the gravel truck immediately after the collision. When Exhibit C was offered the appellants objected on the ground that the witness had not compared the two pictures, the theory being that without such a comparison Exhibit C had not been shown to depict the conditions that existed immediately after the accident. Of course the picture would not be admissible unless it correctly represented the scene of the collision. LaGrand v. Ark. Oak Flooring Co., 155 Ark. 585, 245 S. W. 38. Upon the appellants’ objection the court at first excluded the picture.
Wagner was tlien asked to compare certain stains of oil and blood that appeared in both pictures, and he identified the same stains as appearing in both exhibits, explaining them to the jury. He also testified that except for the fact that the trucks had been removed Exhibit C was the same picture as Exhibit B, which had been admitted at the appellants’ request. This testimony fully met the appellants’ objection, and the trial court correctly admitted Exhibit C.
In the daylight picture there appear certain tire marks on Nutt’s side of the highway, extending for a much greater distance than could have been shown on Exhibit B, which had been taken at close range. Wagner was asked to state which vehicle made these marks, and after a general objection by the appellants the witness answered that Martin’s truck had made them. It is now argued that Wagner should not have been permitted to answer the question, “for Wagner himself did not contend that he ever examined the tire marks at the scene of the accident. ’ ’ Apart from the fact that this basis for objection was not brought to the trial court’s attention while Wagner was available for further interrogation, the appellants are in error in contending that Wagner liad not examined the scene. Wagner had already testified that immediately after taking Nutt to the hospital lie had gone back and examined the scene of the collision.
Also bearing upon the admissibility of Exhibit 0 is the testimony of Martin, who owned the gravel truck. • Martin stated that he went to the scene soon after the collision and examined the tire marks. He described the marks on Nutt’s side of the center line as grip marks rather than skid marks, being the marks made when the brakes are applied. Martin examined these grip marks with a light and found that the tread corresponded exactly with those on his truck, which had almost new tires with a clearly discernible tread. He described these marks, which he pointed out on Exhibit C, as being perfectly straight and as not crossing the center line at any point in that vicinity. In view of this testimony and that given lay Wagner we cannot agree with the appellants ’ insistence that Exhibit C was inadmissible.
Upon Wagner’s cross appeal the only complaint is that the jury failed to return a verdict either way upon his claim. What happened was that among the forms of verdict handed to the jury were three separate forms for a finding in favor of Mrs. Nutt, Martin, and Wagner, but there was no form enabling the jury to find in favor of the first two and against Wagner, whose injuries required first aid only. There was also a single form for an inclusive finding against all three. The jurors solved their problem by completing and signing the forms for Mrs. Nutt and for Martin and by returning the others incomplete and unsigned. For two reasons we think the trial court was right in refusing a new trial. First, the jury evident^ intended to find for the Bottling Company in Wagner’s case but had not been'given an appropriate form to use. It is the court’s duty to cany out the jury’s intention when the meaning of the verdict can be fairly interpreted. Sledge & Norfleet Co. v. Mann, 166 Ark. 358, 266 S. W. 264. Second, as stated in the case just cited, an objection that goes merely to the form of the verdict must be made before the jury has been discharged. If Wagner thought that the jury meant to find in his favor but somehow overlooked both the signing of the verdict and the insertion of the amount of his damages, it was his duty to demand a clarification while the jurors were still present and in a position to explain their intention. We cannot permit him to let the jury separate without complaint on his part and then insist that a highly doubtful speculation should be resolved in his favor.
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Robert H. Dudley, Justice.
This appeal raises issues of sentencing in criminal cases. On February 9, 1982, the State filed an amended petition alleging that appellant had violated the terms of his probation in three cases and that he should be sentenced to imprisonment. A hearing was held on the petition and the trial court found that in each of the three cases the petition to revoke should be granted. It is the court’s sentencing of appellant in these cases that serves as the basis of this appeal. The Court of Appeals certified the matter to this Court since it involves interpreting acts of the General Assembly. Rule 29 (1) (c).
The appellant contends that he is entitled to know the effect of his multiple sentences and that the trial court has entered such inconsistent and unauthorized sentences that no one knows what his sentences are and, he argues, we must void all sentences. The argument is meritorious but we decline to void all of the sentences.
Review is difficult in this case because of the failure of the trial court to enter orders as required by statute. In some of the sentences from which appellant now appeals there is no evidence of an original judgment of conviction and sentence and we are not afforded a transcript of the original pronouncement of sentence. In one of the cases the docket sheet reflects one sentence, the written statement given by the trial court to the appellant reflects another, the certified copy of the order of commitment reflects yet another and an instrument executed by the trial judge and styled “Statement of the Evidence — Petition to Revoke Hearing” reflects still a different sentence.
The appellant is correct in contending that he is entitled to know the effect of his sentences. Ark. Stat. Ann. §§ 43-2305, 43-2602, 43-2608 and 41-1203 (Repl. 1977) specifically require that the trial court make clear the judgment of sentence. Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980). Sentencing procedures are governed by statute. Holden v. State, 156 Ark. 521, 247 S.W. 768 (1923). No one may be sentenced other than in accordance with the criminal code. Ark. Stat. Ann. § 41-803 (Repl. 1977); Culpepper, supra. A trial court is to follow Title 43, Chapter 23 of the Arkansas Statutes in pronouncing sentence and judgment. See also A.R.Cr.P. Rule 36.4. The disposition of an adult offender is governed by Title 41, Chapter 8 of the Arkansas Statutes and suspension and probation are governed by Title 41, Chapter 12. A judgment of conviction and sentence is required to be entered in each case. Ark. Stat. Ann. § 43-2301 (Repl. 1977). Such a judgment is a final judgment, not an interlocutory order which is subject to change. The statute in effect on the date of the commission of the crime is the statute governing sentencing. Ark. Const, art. II, § 17; Easley v. State, 274 Ark. 215, 623 S.W.2d 189 (1981).
Appellant contends that in case number CR 81-21 the trial court gave him one sentence and then erroneously superimposed an additional sentence. The contention is correct.
In case number CR 81-21 the record contains the Penitentiary Commitment which is a certified copy of the original judgment of conviction and sentence dated April 9, 1981. It provides:
This day comes the State of Arkansas by Ron Fields, Prosecuting Attorney, and comes the Defendant in proper person, in custody of the Sheriff and by his attorney, Sam Hugh Park and said Defendant having been arraigned and informed of the nature of the Information filed against him and of each charge contained therein the same being: BURGLARY (41-2002) CLASS B FELONY
Date of Offense JANUARY 5, 1981
entered a plea of (guilty) to each charge against him, and the Court having found the Information stated an offense, accepted his plea and found the Defendant guilty as charged. The Defendant was then asked if he had any legal cause to show why judgment should not then be pronounced, and none being shown:
It is therefore, considered, ordered and adjudged by the Court that the Defendant be remanded into the custody of the Arkansas Department of Correction to be confined at hard labor for the period of: THREE (3) YEARS.
Defendant is hereby given credit for 47 days as jail time and that the State of Arkansas do have and recover of said Defendant all the costs of this prosecution and have execution therefor . ..
On the same day the judge made the following docket entry: “Sentenced to three years, Arkansas Department of Correction withholding imposition of sentence for a period of four years.” On the same date the appellant was given a statement informing him of the terms of his suspension as follows: “You have been given a term of seven years with four suspended.” Eleven months later the court executed and placed of record an instrument entitled, “Statement of the Evidence — Petition to Revoke Hearing”, and it recites, “In CR 81-21, the defendant was sentenced to seven (7) years in the Department of Correction and imposition of additional sentence was withheld for an additional five (5) years. A certified copy of a second judgment of conviction and sentence reflects that on March 7, 1982, appellant was sentenced to seven years of imprisonment.
Between these inconsistent indications of the judgment of sentence, the certified copy of the original judgment is conclusive. While a docket notation is prima facie evidence of a judgment, Dupree v. State, 271 Ark. 50, 607 S.W.2d 356 (1980), it is not the entry of a final judgment. Reeves v. State, 263 Ark. 227, 564 S.W.2d 503 (1978). Thus the docket entry does not have the dignity of the certified copy of the judgment and, between them, the certified copy prevails. The statement given to appellant was given in an attempt to comply with the statute requiring that a defendant be notified of the conditions of suspension or probation, Ark. Stat. Ann. § 41-1203, and was never intended as a judgment. It is not shown to have been entered of record. Clearly the certified copy of the judgment prevails between these two instruments. The original 1981 judgment provided for a three year imprisonment and nothing more. Appellant went to the penitentiary and served his sentence. 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 attempt in 1982 to increase punishment at a second sentencing was void. Easley v. State, supra. The appellant is correct in contending that the second sentence in case number CR 81-21 is void and must be reversed and dismissed.
Appellant next argues that the trial court erred in assessing a second sentence in case number CR 80-197. Again, the argument has merit. On August 26, 1980, after a plea, the docket notation is “Sentenced to Arkansas Department of Correction for a period of two years; two years suspended on condition to be admitted to the Board of Training School for an indefinite period of time. Sentenced under 46-910. To be released until time to be transported. $1,500 cash bond.” The court statement given to appellant provides: “Imposition of sentence is suspended for a period of two years.” On the same day, August 26, 1980, an instrument labelled “Order of Commitment” was issued under the style of the Circuit Court of Sebastian County and provides:
It is THEREFORE ORDERED, CONSIDERED, AND ADJUDGED BY THE COURT that William Claude Hunter, is a delinquent juvenile within the meaning of Act 451 of the Acts of Arkansas, 1975 because of the following reasons: Theft By Receiving (41-2206) Class C Felony.
Date of offense: April 29, 1980
Further, that said minor should be and hereby is committed to the Arkansas Division of Youth Services and said minor shall be under the exclusive custody and control of said Division until discharged.
The instrument is not signed by the judge but by a deputy clerk. The docket notations reflect that a Certificate of Assignment to the Youth Services Center, Pine Bluff, was entered on September 24, 1980, and that on November 24, 1980, a Notice of Eligibility Release from the Department of Human Services was received. In the instrument styled “Statement of the Evidence— Petition to Revoke Hearing” the trial court recited: “On August 26, 1980, the imposition of sentence for that offense [CR 80-197] was suspended for a period of two years. The defendant also received an indefinite term in the Boys Training School.” There is no evidence before us that a judgment was entered.
From all of the above it appears that appellant was given an indefinite sentence to the Arkansas Juvenile Training School and, at the same time, the trial court attempted to suspend imposition of sentence. The crime was committed on April 29, 1980, and the statutes then in effect, Ark. Stat. Ann. §§ 41-803 (4) and 41-1204 (Repl. 1977) did not authorize a concurrent imposition of an indefinite sentence along with a suspension of imposition of an imprisonment sentence. The trial court could have provided for a sentence to imprisonment followed by suspension as to an additional term of imprisonment, Ark. Stat. Ann. § 41-803 (4) (Repl. 1977) or it could have provided for suspension of an imposition of a sentence of imprisonment and as an additional condition require confinement in a detentional facility for up to 90 days. Ark. Stat. Ann. § 41-1204 (1), (3) (Repl. 1977). However, the trial court could not give an indefinite sentence coupled with a suspension of imposition of sentence. Thus, the court could validly grant one judgment or the other but not both. One judgment was the imposition of a sentence and the other was the suspension of the imposition of a sentence. The sentence imposed was served. We hold that when a court grants unauthorized dual judgments of sentence and one is imposed and served, and the other is the suspension of a sentence, there is an election by operation of law and the sentencing court has elected to order the sentence actually imposed. The other is void. Thus, the definite sentence to the Training School was valid and the suspension of the imposition of the sentence of imprisonment was void. Then, almost two years later at the revocation hearing, the trial court sentenced the appellant to three years additional imprisonment. This second sentence was also void. Easley v. State, supra. The second judgment of sentence in CR 80-197 is reversed and dismissed.
In case number CR 79-454 the appellant entered his plea and was given a statement which provides: “The court has not accepted your plea and instead has placed you on probation with all further proceedings postponed for three years conditioned upon your good behavior.” The court, as a matter of law, did accept the plea because the statutory form of probation ended local forms of court probation. English v. State, 274 Ark. 304, 626 S.W.2d 191 (1981). The docket notation is “Def. is placed on three years probation and to pay restitution of $1,355.00 and is placed on Juvenile restituation program.” The record contains no evidence that a judgment of conviction and probation was pronounced or entered. There was no objection by appellant to the combining of probation and a juvenile program. In 1982, the trial court revoked the probation and sentenced the appellant to three years imprisonment. Appellant tacitly admits this sentence is valid in form but asks that we reverse it because, he argues, he was denied effective assistance of counsel. We decline to so hold. In order to raise this issue on direct appeal, evidence on the allegation must be contained in the record and the trial court must have been given the opportunity to rule on the issue. See, e.g., Hoover v. State, 270 Ark. 978, 606 S.W.2d 749 (1980); Hilliard v. State, 259 Ark. 81, 531 S.W.2d 463 (1976). Appellant is aware of our cases and asks that we overrule them. We have recently reconsidered these cases and we are firmly convinced they are correct. Knappenberger v. State, 278 Ark. 382, 647 S.W.2d 417 (1983). We affirm the judgment of conviction and sentence in case number CR 79-454.
Affirmed in part and reversed in part. | [
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Per Curiam.
Appellant, Trayvon Lavell Scott, by his attorney has filed for a rule on the clerk.
His attorney, William M. Howard, Jr., admits that the failure to file the record in time was 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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Frank Holt, Justice.
Appellant was convicted of the crime of rape in 1964 and his punishment was fixed at life imprisonment. We reversed in Henson v. State, 239 Ark. 727, 393 S.W.2d 856 (1965). Upon a change of venue and a retrial in 1966, a jury again found appellant guilty of rape and assessed his punishment at life imprisonment. From a judgment on that verdict comes this belated appeal permitted by our per curiam order dated January 29, 1973. Present counsel was appointed for appeal purposes.
Appellant first contends for reversal “the court erred in allowing the testimony of Dr. Walter P. Harris to be admitted because his opinion was formed by using information obtained through a doctor-patient relationship which is privileged.” Dr. Harris examined appellant on two occasions during the time he was awaiting trial and incarcerated. The first examination was at the behest of appellant’s wife that he be examined by the state hospital authorities as to his mental condition. The court ordered two local doctors, including Dr. Harris, to conduct the requested mental examination. Before the petition was withdrawn, Dr. Harris examined the appellant and diagnosed him as a sexual psychopath and not insane. In the former appeal, Henson v. State, supra, we held that Dr. Harris’ examination as to appellant’s mental condition was not violative of the doctor-patient relationship. In the case at bar it clearly appears that Dr. Harris did not rely in any manner whatsoever upon the second examination, based upon a physical complaint by appellant, in forming his opinion concerning appellant’s mental state. We perceive no violation of the doctor-patient relationship.
Appellant next contends “the court further erred in allowing Dr. Harris to testify as to the defendant’s sanity as he was not qualified to render such opinion and because such testimony, since there was no plea of insanity, served only to prejudice and inflame the senses of the jury.” We first observe that it appears the doctor’s qualifications as a physician were admitted by the appellant’s trial counsel on two occasions. Further, there was no objection as to his qualifications raised at the trial. We cannot consider an issue raised the first time on appeal. Nash v. State, 248 Ark. 323, 451 S.W.2d 869 (1970). When the doctor testified as to appellant’s psychopathic mental condition, an objection was made stating “***if we are talking about generally. This defendant is who we are trying. We are here on a specific case for a specific defendant.” The court answered “[W]ith reference to the specific offense it will be sustained. Lay the proper foundation.” The doctor then proceeded to give his opinion as to appellant’s mental condition and no objection was renewed. Thereafter, appellant’s counsel proceeded to cross-examine the doctor with reference to the mental examination. We cannot say in the absence of proper objections that reversible error occurred.
Appellant next contends for reversal that the “court erred in failing to grant a mistrial of the case after each of several highly prejudicial remarks were made by witnesses for the prosecution.” The prosecuting witness testified that after raping her appellant assaulted her again a short time thereafter. The court sustained appellant’s objection and admonished the jury to disregard the prosecutrix’s statement that “[H]e attacked me again.” The sheriff testified that upon arresting the appellant he told him “he was under arrest for the rape of this girl, and there was two girls — one living over here and one — .” He was interrupted by an objection from appellant’s counsel. The trial court sustained the objection and, as requested, admonished the jury to disregard this testimony. Appellant also complains that the testimony of an aunt of the prosecutrix was prejudicial when she testified that her niece (prosecutrix) was “[Cjrying, screaming she was scared to death. *** I went to the phone and called the sheriff’s office. And she said, ‘If you do that, he will come and kill us every one.’ ” The court again sustained the objection of appellant’s counsel and, as requested, admonished the jury to disregard the prosecution’s statement that “he will come out here and kill us every one.” In each of these enumerated three instances, the asserted error was corrected by the cautionary instructions given by the court. Stepps v. State, 242 Ark. 587, 414 S.W.2d 620 (1967).
Nor do we find any prejudicial error in the state trooper’s testimony that the defendant, when arrested, stated that “I won’t go with the son of a bitch [another officer], but I will go with you.” We cannot perceive how this remark by the witness was prejudicial as to appellant’s guilt or innocence of the alleged offense.
Appellant further contends that the "court erred in failing to strike and strongly admonish the jury not to consider testimony of Cora Williams when she related the statement of her niece as told to her by her daughter.” The prosecutrix went to Mrs. Williams’ house immediately following her ordeal with appellant. The prose-cutrix went in the bathroom with her sister and Mrs. Williams’ daughter. It appears that the aunt overheard their conversation. Mrs. Williams testified “[S]he told my daughter, that she had been attacked and when I told them to come out, if they didn’t I would tear the door off the hinges, and when they come out, Wanda was crying.” Appellant’s attorney objected saying "[T]hat is not a spontaneous statement — that is too remote.” Thereupon, the trial court sustained the objection. It does not appear that appellant requested a cautionary instruction or that the prosecutor continued interrogating the witness further as to the asserted hearsay testimony. Also, let it be remembered the prosecutrix had previously testified that she had been attacked by appellant. We perceive no prejudicial or reversible error.
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McHaney, J.
In the year 1899, appellant and his two brothers, W. J. and George A. Shelby, acquired a tract of land in, or adjacent to, the town of Wabbaseka, containing approximately 3.71 acres, and including the strip of land in controversy, containing about 1.25 acres, or the north 1/3 of the tract. In about 1901, they built a house on the south part of the tract for appellant, and some two or three years later they built a house on the north end of the tract, behind which, and on the land in controversy, a bam was built. In 1909 they decided to divide the land, and W. J. and George A. deeded to appellant a portion of the tract, describing it by metes and bounds, but oinitting the township, the range, the county and State in which the land is located.
It is conceded that there was no intention to convey to appellant the whole of the 3.71-acre tract, but only a part thereof. Twelve years later,-in 1921, appellant, conceiving that his deed was void for lack of description, secured from George A. and his wife, the appellee, and Nannie, who1 is, and was at that time, the widow of W. J., a correction deed, supplying the supposed defects in the former deed. This latter deed contained the same metes and bounds description as the former, and recited that it conveyed 2.52 acres of land, which in fact constituted the south 2/3 of said tract. W. J. and George A. Shelby went into possession of the north 1/3, including the land in controversy, and .built a fence between their property and that deeded to appellant. In 19101 W. J. Shelby died testate, leaving his wife, Nannie, and his brother, George A, each a one-half interest in this property. Later Nannie sold all her interest therein to George A., who continued in exclusive possession thereof to his death in 1902, leaving surviving his widow, the appellee, who continues to the present time in possession thereof as a homestead. In '1926, appellant sought to build a fence on what he claimed to' be the correct line according to the description in his deed, but appellee prevented him from so doing. He thereupon instituted this action against her to enjoin her from interfering with his right to the land and his’ right to- build the fence, and to quiet title to said strip of land in him.
Appellee answered that the first, deed appellant obtained from his brothers was void for want of proper description; that the second or correction deed was-obtained through misrepresentation and fraud, in that he told the grantors that the description conveyed only the south two-thirds of the tract, and that it was void because executed and delivered on Sunday; and that she had acquired title to the north one-third thereof by adverse possession. On a trial the court, found for' appellee and that she “is the owner of all the land now held in possession by her, extending as far south as the division fence now located.” Decree was entered quieting title thereto in her and dismissing appellant’s complaint for want of equity.
We find it necessary to discuss only one question, that of adverse possession, to a proper determination of this case. We think the trial court reached the correct conclusion in finding" the issues of both law and fact against appellant. If the line should he established where appellant contends it should (be, he would have more than three-lfourths of the acreage. Was any such result intended by the three brothers in 1909 when they divided it? We think not, and that the preponderance of the evidence, when all the attendant circumstances are considered, support the court’s finding to the contrary. Two of the brothers are now dead and were long before'this suit was instituted. Their mouths are closed, but their acts and deeds are still living witnesses.- The fact that W. J. and George A. immediately took possession of exactly one-third of the land; that they built a fence on the division line where no fence had been before; that they thereafter paid the taxes on 1.25 acres of this land; that when W. J. died, he left one-half olf it to his widow and one-half to his brother George A; that thereafter the widow conveyed her one-half to George A. by deed; that they remained in possession of the north one-third from 1900 to 1926 without question of right, during which time they made valuable improvements—all speak more eloquently than mere witnesses. We cannot escape their effect, as they are all inconsistent with appellant’s claim of title to any part of said land north of said division-fence.
Appellant contends, however, that appellee is in the situation of a g’rantor who remains in possession after executing a deed of conveyance, that is, that limitations will not begin to run against the grantee until notice of - the hostility of the grantor ’s claim. But, conceding that she is a grantor in possession and that there was no mutual mistake, or no mistake on her part accompanied by fraud or other inequitable conduct on the part. of the - ■grantee in the procurement of the deed, still the possession of appellee and those under or through whom she claims continued for such a length of time as to overcome and rebut the presumption that she was holding in subordination to the title conveyed. In Stuttgart v. John, 85 Ark. 520, 109 S. W. 541, one o-f the cases cited and relied on by appellant, this court said: “Where a vendor, after having executed a deed, remains in possession of the premises conveyed, he is presumed to hold in subordination to the title conveyed, unless there is affirmative evidence of a contrary intention; and, where his occupancy and use are not manifestly inconsistent with the right of his grantee, notice of the hostility of his claim must in some way be brought home to his grantee before the statute of limitations will begin to run.” An exception to that rule is stated in Tegarden v. Hurst, 123 Ark. 354, 185 S. W. 463, where it was said:
“We are also of the opinion that the evidence shows very clearly an intention on the part of Hurst to hold the land in hostility to any other claim, and that, even if there was no right to reformation, that Hurst’s occupancy ripened into a title by adverse possession for the statutory period. On that branch of the case, the defendants invoke the doctrine that where a grantor remains in possession, there is a presumption that he does so in subordination to the title he has granted, and not in hostility thereto'. While that is true, there is an exception where the occupancy continues unexplained for an unreasonable length of time, and under those circumstances the presumption is gradually overcome by lapse of time. American Building & Loan Assn. v. Warren, 101 Ark. 163, 141 .S. W. 765. The fact that Hurst remained in undisputed possession of the land, openly and notoriously, for a period of fourteen years is sufficient to overcome the presumption that he was holding in subordination to his original grant. Such occupancy was, under the circumstances, sufficient notice to • Tegarden as to the hostility of the possession. He admits in his testimony that when he was negotiating a purchase from Estes, he was told that the line went right across the river, and to some extent into Hurst’s field, and he was therefore put upon- notice that there was an adverse occupancy which had at that time continued for a period of about nine years. He is therefore in no better attitude than was his grantor, Nathaniel Estes, (for he had notice of the adverse claim, and had no right to rest upon a presumption that Hurst, the original grantor, was holding possession in subordination of his conveyance to Estes.”
Moreover there were many definite acts of ownership of the strip in controversy after the conveyance which were sufficient to bring notice home to appellant that title was being claimed to the division fence in hostility to the claim now asserted, and “much affirmative evidence of a contrary intention” to hold subordinate to the title described in the deed. When all is considered, together with the length of time which has elapsed in which undisputed possession was had, seventeen years, openly and notoriously, the court was correct in holding that the presumption that she was holding in subordination to the original grant was overcome. Her occupancy and those through whom she claimed, was, under the circumstances already related, sufficient notice to appellant of the hostility of the possession.
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Holt, J.
March 20, 1940, appellee, Porter John, filed suit (Ex parte) to confirm his title, based on a State tax deed April 17, 1939, to the SE14 of the SE% of section 28, township 4 south, range 4 west, 40 acres, in Arkansas County, which was forfeited and sold to the State for the delinquent taxes in 1931.
Appellant, James Bass, intervened, alleging that he was the owner of the land in question, that the tax sale and forfeiture to the State were void for numerous reasons, that appellee is the son of Dr. John, and that: ‘ ‘ Several years ago, Dr. John entered into a lease agreement with intervener’s co-owner of above land, under which agreement Dr. John agreed to maintain repairs on the land for the use of same as pasturage and at the time of the pretended tax sale (was) and is still occupying said land as tenant under the said arrangement. At the time of the pretended tax sale in June, 1931, at the time said land was forfeited, at the time the state land commissioner executed his deed to petitioner, Porter John, this inter-vener, James Bass, was a minor.”
He prayed that he he allowed to redeem and that appellee should be denied any rights in the property. Appellee and his father, Dr. John, answered (separately) appellant’s intervention with general denials. Appellee also alleged that he had made valuable improvements on the 40-acre tract which materially increased its value.
The trial court found that appellant, Bass, had the right to redeem and that appellee’s tax deed should be cancelled and set aside, but that appellee should recover for improvements in the amount of $3,275 and declared a lien against the land for this amount.
The cause is here on appellant’s direct appeal and appellee’s cross appeal.
The record reflects that the tract of land involved was on the 2nd Monday in June, 1931, forfeited and sold to the State of Arkansas for nonpayment of taxes due thereon. Thereafter, on April 17, 1936, the State issued its deed to appellee, Porter John, to this property for a consideration of $41. Appellee immediately fenced the tract and made substantial improvements within the period of about sixteen months after his purchase.
Appellant, James Bass, was born May 8, 1916, and reached the age of 21 May 8, 1937. The present suit, as indicated, was filed March 20, 1940, and appellant, Bass, filed his intervention May 7, 1940, which was one day short of three years after lie, Bass, had reached his majority. We hold that appellant’s right to redeem was limited to two years from and after the. expiration of his disability. Ark. Stats. 1947, § 84-1201 (Pope’s Digest, § 13860) so provides: “Period for redemption, * * * All lands, towns or city lots or parts thereof, which may hereafter be sold for taxes at delinquent sale, under the laws of this State, may be redeemed at any time within two (2) years from and after the sale thereof; and all lands, city or town lots, belonging to insane persons, minors or persons in confinement, and which have been or may hereafter be sold for taxes, may be redeemed within two (2) years from and after the expiration of snch disability,” etc.
We have many times construed this section, and in George v. Hefley, 182 Ark. 678, 32 S. W. 2d 445, we said: “The court lias frequently construed this statute (§ 84-1201) to give minors the right to redeem from and after the sale until the expiration of two years after they have reached their majority. The court lias said that the minor’s right to redeem commences from and after the sale, and that the right to redeem continues until two years after he should come of age. Bender v. Bean, 52 Ark. 132, 12 S. W. 180; Seger v. Spurlock, 59 Ark. 147, 26 S. W. 819; Moore v. Irby, 69 Ark. 102, 61 S. W. 371; and Crowley v. Spradlin, 11 Ark. 190, 91 S. W. 550.
“Later decisions of the court have recognized that the statute does not suspend the right of redemption during the minority of the owner, but it may be exercised as well before as after the removal of the disability of minority. Hisey v. Sloan, 180 Ark. 797, 22 S. W. 2d 1005, and cases cited. ”
Our holding in the George v. Hefley case was recently reaffirmed in Sahuman v. Westbrook, 207 Ark. 495, 181 S. W. 2d 470.
Any rights, therefore, to redeem that appellant, might have had in.the land here in question were lost and precluded by his failure to intervene or assert such rights within the two years allowed to him after he reached his majority, and the trial court erred in cancelling and voiding appellee’s tax deed and in holding that appellant had the right to redeem in the circumstances.
Appellant’s contention that at the time of the tax sale to appellee, appellee and Dr. John, his father, as partners and acting in unison, held and occupied the land in question as tenants under an alleged lease agreement with appellant’s “co-owner” and that “appellee’s purchase was in equity and effect a redemption” is without merit, for the reason that even though appellee were a tenant in possession (which the preponderance of the evidence fails to support) there being no evidence that ap-pellee agreed to keep the taxes paid, he was within his rights in purchasing at the tax sale.*
In the recent case of Billingsley v. Lipscomb, 211 Ark. 45, 200 S. W. 2d 510, we held: (Headnotes 3 and 4) “A tenant who is under no obligation to pay the taxes on the land he occupies may purchase at a tax sale the lands of which he is in possession and maj'' set up such title, and the sale, if otherwise valid, extinguishes the landlord’s title and terminates the lease. 4. Quieting Title. — Appellant, tenant of appellee, and who was under no obligation to pay the taxes on the land leased and who purchased the land from the state after a sale for delinquent taxes was entitled to have his title quieted as against appellee the original owner. ’ ’
Finally, appellant questions appellee’s right to cross-appeal, contending that appellee is estopped by his election to purchase at the Commissioner’s sale for the exact amount awarded him (appellee) in the decree for improvements. It appears that pursuant to the decree, the Commissioner sold the property and appellee was the purchaser. We cannot agree that by so doing appellee has lost his right to cross-appeal.
The trial court, after erroneously declaring appel-lee’s deed from the State void, allowed him $3,275 for improvements, and a lien on the property for this amount. When appellant failed to reimburse appellee for said improvements, appellee, as was his right, bid the amount of his lien at the sale to protect his interest. This action of appellee did not irrevocably bind him to the one course of action which he pursued and was in no sense inconsistent with appellee’s claim throughout that he was the owner of the land by virtue of his State deed, a claim which we are now holding must be upheld. Had appellant paid appellee the amount awarded for betterments, then a different situation similar, in effect, to that in Bolen v. Cumby and Another, 53 Ark. 514, 14 S. W. 926 (relied upon by appellant) would be presented.
I'd the Bolen case, Bolen claimed the land under a tax sale. The trial court held the sale void but allowed for improvements and a lien on the property. Bolen appealed. Subsequently, Cumby paid to Bolen the amount allowed for improvements and Cumby then moved to dismiss Bolen’s appeal. This court there held that, in the circumstances, Bolen’s appeal should be dismissed because he had accepted a benefit under the judgment inconsistent with his appeal. It was there said: “A party may prosecute his appeal from a judgment, partly in his favor and partly against him, even after accepting the benefit awarded him by the judgment, provided the record discloses that what he recovers is his in any event— that is, whether the judgment be reversed or affirmed. But he waives his right to an appeal by accepting a benefit which is inconsistent with the claim of right he seeks to establish by the appeal,” and in Kelley v. Laconia Levee District, 74 Ark. 202, 85 S. W. 249, 87 S. W. 638, this court held: (Headnote 1) “One who accepts the benefit of so much of a decree as is favorable to him is not estopped thereby to appeal from the remainder of the decree, if the part accepted and that appealed from are independent.” See, also, McIlroy v. Mcllroy, 191 Ark. 45, 83 S. W. 2d 550, and Hutton v. Pease, 190 Ark. 815, 81 S. W. 2d 21.
Here, appellee has not voluntarily received any money from appellant but merely purchased at the sale to protect his interests.
We regard any statements in Brookfield v. Martin, 201 Ark. 475, 145 S. W. 2d 727 (cited by appellant) that might appear to be in conflict herewith as dictum merely.
Accordingly, the decree must be, and is reversed, on appellee’s cross-appeal and the cause remanded with directions to dismiss appellant’s intervention for want of equity and for further proceedings consistent with this opinion.
Since appellant, on direct appeal, questions only the amount allowed appellee for improvements or better-ments, it becomes unnecessary to consider this issue. | [
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Robert H. Dudley, Justice.
The sole issue in this car-wreck case is whether an instruction on failure to give a turn signal was abstract. We hold there was sufficient evidence in the record which justified giving the instruction.
There is substantial evidence that the appellant, plaintiff below, was driving his pickup truck in a westerly direction in the inside lane of East Broadway Street in North Little Rock. He stopped to make a left turn onto Omega Street but did not give a turn signal. He was followed by an unknown person in a Buick who swerved suddenly to the outside lane, apparently to avoid hitting the appellant. About 50 to 60 feet behind the Buick, in the inside lane, was the appellee, the defendant below. As the Buick swerved to the outside lane, the appellee saw the appellant about 50 to 60 feet ahead, and began to slow her car. She looked to see if she could also swerve to the outside lane like the Buick had done, but there was a car in that lane. It was raining, the road was wet, and the appellee was unable to bring her car to a complete stop before hitting the rear bumper of appellant’s truck. If she had only a little more space she would have stopped before hitting the appellant.
The appellant argues that giving the instruction on failure to give a turn signal was error because it would not have made any difference if the appellant had given a turn signal, or, stated differently, there was no causation. The argument is without merit for at least two reasons.
First, the jury could have concluded from the evidence that if the appellant had given a turn signal, the unidentified driver of the Buick could have known that appellant was stopping in order to turn left and that driver could have made a timely stop instead of suddenly swerving to the other lane. If the Buick had made a timely stop, the appellee, following behind, could have, in turn, done the same.
Second, appellee testified that there were no lights on appellant’s car indicating either a stop or turn. If the appellant had given a turn signal the appellee would have known the appellant was stopped in order to turn left, and the appellee could have immediately started to brake hard rather than simply “slow my vehicle down.” Since appellee had almost gotten her car stopped before it hit appellant’s truck the jury could have concluded that the different braking actions could have been a contributing cause of the accident. Accordingly, the instruction was not abstract.
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Frank Holt, Justice.
The appellant was convicted by a jury of two counts of aggravated robbery and two counts of theft of property. Punishment was fixed at 35 years imprisonment on each robbery count and 15 years on each theft count, resulting in 50 year concurrent sentences as an habitual offender. He appeals from that judgment and denial of a motion for a new trial. We affirm.
Appellant first asserts that the jury’s verdict was not supported by sufficient evidence to establish the identity of the appellant. It is argued that the testimony of the witnesses, who identified the appellant, was so contradictory, implausible and unreliable as to be insufficient to support the verdict. On appeal we review the sufficiency of the evidence to ascertain whether the verdict is supported by substantial evidence; i.e., whether the evidence is sufficient to enable the jury to reach its verdict without resort to speculation and conjecture. Cassell v. State, 273 Ark. 69, 616 S.W.2d 485 (1981). On appellate review we look only at the evidence most favorable to the appellee. Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982).
Here, two of the four victims, Mr. and Mrs. Hughes, identified the appellant from photographs and a show-up at jail three weeks after the alleged offenses as one of the persons who committed the robbery and theft upon them. At trial they were certain of appellant’s identification as the person who grabbed Mrs. Hughes by her hair and held a shotgun to her “throat,” threatening to shoot her. Both testified that the camper tent, where they were awakened and robbed about 2 a.m., was well lit after the robbery began. Although the appellant wore a light colored woman’s stocking over his face, it did not change his facial features. One of Mrs. Hughes’ hobbies was art and drawing. The first thing she was taught in art school was to focus on and recognize facial features. She testified that his face was very close to hers and at one time touched hers during the threats on her life. Appellant was “mean looking, his eyes were just like the pure devil himself... I’ll never forget his face.” Mr. Hughes testified that, although appellant wore a “real light colored hose,” you could “see his face good.” Mr. Hughes was escorted outside to his car by other participants to get his money and was returned to the tent where he observed the appellant holding a gun to his wife’s throat. Mr. Hughes was then taken to the nearby trailer of the Isbells, who were also robbed. There appellant stood guard over Mr. Hughes during which time he further observed appellant’s physical appearance. We hold there is substantial evidence to support the jury’s verdict.
Appellant next argues that the trial court erred by allowing the state, in its closing argument, to place the burden of proving innocence on the appellant and by calling attention to the appellant’s failure to testify. The appellant’s girl friend had testified as an alibi witness that the appellant had spent the night with her on the date of the robbery and that two other persons were present with her and the appellant on that evening. In the closing argument, the prosecutor attacked the credibility of this witness, the plausibility of her testimony, and, in the course of that portion of the argument, remarked that neither of the other two persons allegedly present with appellant had been called to testify. Defense counsel objected saying, “I think this is going a little too far.” His objection was overruled.
In order to preserve a point for appellate review, “[a]n objection must be sufficiently specific to apprise the trial court as to the particular error complained of in order to preserve the right to appellate review.” Crafton v. State, 274 Ark. 319, 624 S.W.2d 440 (1981). A.R.Crim.P., Rule 36.21. Here, that requirement was not met. Obviously, the trial court was not afforded an opportunity to rule on the arguments now presented on appeal.
Appellant next contends that the use of standard verdict forms in this bifurcated trial violated his Fifth Amendment right not to testify against himself. The argument is that experienced jurors know that punishment is fixed at the same time as guilt, except in habitual offender proceedings, where guilt alone is determined in the first phase of the jury’s deliberation and punishment is fixed in subsequent deliberations after considering the number of prior felony convictions. Ark. Stat. Ann. § 43-2330.1 (Repl. 1977). Therefore, experienced jurors, having this knowledge, will be able
to deduce that the defendant in a habitual offender proceeding has prior felony convictions, even though the prior convictions are not admissible to prove guilt. Appellant’s argument was rejected in Woods v. State, 260 Ark. 882, 545 S.W.2d 912 (1977). Furthermore, the issue was not properly before the trial court. No objection was made to the verdict forms and the bifurcated procedure until after the trial had been concluded at which time it was raised in a motion for a new trial. We have often held that objections to a jury instruction must be made before the jury retires and objections made after the jury retires to deliberate are not timely. Hickory Springs Mfg. Co. v. Emerson, 247 Ark. 987, 448 S.W.2d 955 (1970); Sunray Sanitation v. Pet, Inc., 249 Ark. 703, 461 S. W.2d 110 (1970); and Golden v. State, 265 Ark. 99, 576 S.W.2d 955 (1979).
Finally, appellant argues that the trial court erred by admonishing the entire jury panel, in an orientation procedure earlier in the day of the trial, to attempt to avoid a hung jury. This so-called “Allen” or “dynamite” charge, which parallels AMCI 6004, was not repeated to the trial jury. No objection was made to the orientation procedure until the trial had been concluded. It was then alleged as error in a motion for a new trial. An objection, to be timely, should be made when the trial court is afforded an opportunity to correct the asserted error. Crafton v. State, supra. A litigant may not await the outcome of the case before bringing alleged errors to the attention of the trial court.
At a posttrial hearing, one juror testified that the court’s “Allen” charge, upon impanelment of the entire jury, affected her vote during deliberations. This testimony was impermissible and clearly violated Ark. Stat. Ann. §28-1001, Rule 606 (b) (Repl. 1979). Veasey v. State, 276 Ark. 457, 637 S.W.2d 545 (1982); and Sanson v. Pullum, 273 Ark. 325, 619 S.W.2d 64 (1981).
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George Rose Smith, Justice.
This cases arises under the Medicaid Program, created by federal law but administered in part by the state. The program provides free medical assistance for indigent persons who are disabled within this definition of disability: “Physical or mental impairment which prevents the individual from doing any substantially gainful work . . . and which has lasted or is expected to last for at least 12 months.” Medical Services Manual, § 3320 (1) (c), as quoted in the record.
The appellant, Minnie Williams, applied for medical benefits under the program. Her application was approved in May, 1980, but when her case came up for review in April, 1981, she was found to be ineligible for benefits. She was given an administrative hearing, but the Medical Review Team, consisting of a doctor and a social worker, again found her to be ineligible. That decision was affirmed by the circuit court. The appeal comes to us under Rule 29 (1) (c).
The significance of the various pertinent facts can be better appreciated if we first outline the principles that govern our review of the case. Under the Administrative Procedure Act an administrative decision can be reversed if it is not supported by substantial evidence or is arbitrary, capricious, or characterized by abuse of discretion. Ark. Stat. Ann. § 5-713 (h) (Repl. 1976). At the outset we stress the fact that this particular administrative proceeding is not a truly adversary one; that is, there is no burden on the Department of Human Services to investigate the appellant’s claim and introduce rebutting proof. Instead, much as in the instance of a person seeking a license of some kind, the burden is on the applicant to prove her eligibility to the satisfaction of the administrative agency. See Gray’s Butane Wholesale v. Ark. Liquefied Petroleum Gas Bd., 250 Ark. 69, 463 S.W.2d 639 (1971).
An administrative agency, like a jury, is free to believe or disbelieve any witness. Meyer v. Seismograph Service Corp., 209 Ark. 168, 189 S.W.2d 794 (1945). We give the evidence its strongest probative force to support the administrative decision. Franks v. Amoco Chemical Co., 253 Ark. 120, 484 S.W.2d 689 (1972). To establish an absence of substantial evidence to support the decision the appellant must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded men could not reach its conclusion. Ibid. Finally, the question is not whether the testimony would have supported a contrary finding but whether it supports the finding that was made. Campbell v. Athletic Mining & Smelting Co., 215 Ark. 773, 223 S.W.2d 449 (1949).
The facts, viewed most favorably to the appellee, are these: The claimant, now age 60, never married and has depended upon members of her family for support. She can read and write a little, but is functionally illiterate. The only work she has done outside the home was agricultural field labor. Some 15 to 20 years ago she discontinued that work to take care of her mother. In March, 1979, her mother had a stroke and eventually became blind and an invalid. The claimant cared for her mother until her death in November, 1979. Since then she has lived with her brother. A social worker reported in August, 1981, that the claimant “takes care of her personal needs. She is not bed, chair or house bound. [She] has charge of the homemaker chores. She spends her days doing her housework and visits her neighbors.....[She] is friendly and cooperative.” Upon the nonexpert proof we think a fair-minded person could reach the conclusion that the claimant is not physically disabled.
Nor can it be said that the expert proof is conclusive. In April, 1980, when the claimant first applied for Medicaid, her physician, Dr. Ashley, filled in a form with information that is more favorable to the claimant than anything else in the record. He wrote that she had migraine (headaches), goiter, generalized arthritis, otitis (inflammation of the ear), anxiety reactions, and perhaps other ailments not made clear by the record. In his comments Dr. Ashley referred to the claimant as totally illiterate and concluded that she was totally disabled, unemployed, and unemployable. In May, 1980, the Medical Review Team found the claimant eligible for benefits. Their report ended by requiring a re-examination in May, 1981.
On April 9,1981, another doctor filled in the same form with information less favorable to a finding of disability. This time the Medical Review Team found the claimant ineligible, on May 1. Dr. Ashley then submitted a new evaluation on May 11, in which he said: “This lady is unemployed and unemployable. [Dr. Ashley’s italics.] In 58 yrs. has no work experience except caring for her mother, who died on 28 Nov. 1979. . . . Her brother is now ‘kicking her out’ in favor of a girl he wants to marry.” On October 5 there was a hearing at which the claimant testified but offered no other evidence to support her claim. The Medical Review Team again found her to be ineligible for benefits.
We find it impossible to say that fair-minded persons could not conclude that the claimant failed to establish her entitlement to medical assistance. Dr. Ashley, quite evidently an advocate for his patient, did not limit his opinion to the claimant’s physical disability to work, for he stressed her illiteracy and her lack of work experience. Medicaid, however, is not available for the unemployed and unemployable; it is for the aged and the physically disabled. Dr. Ashley did not attempt to pinpoint any one or more of his patient’s ailments that were actually disabling. The Medical Review Team, selected for their expertise in such matters, did not consider the claimant’s several ailments, most if not all of which had afflicted her for many years, to be totally disabling. With the evidence in conflict, we cannot say that the Team acted without substantial evidence or arbitrarily and capriciously.
Affirmed.
Purtle and Hays, JJ., dissent. | [
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George Rose Smith, Justice.
Reed was convicted of burglary and grand larceny and was sentenced to 15 years in prison upon each charge. For reversal he contends that his confession should not have been admitted in evidence, because the officers who obtained the confession did not fully inform him of his constitutional rights.
That contentiom must be sustained. Before questioning Reed one of the officers read a statement of rights from a printed form, which included this declaration: “You have the right to consult an attorney before making any statement or answering any question, and you may have him present with you during questioning.” Reed was also told that the court would appoint an attorney for him if he could not afford one, but the officer readily admitted that by the latter statement he merely indicated to Reed that if he did not have an attorney before he went to trial the court would appoint one for him.
The officer’s statement of Reed’s rights was fatally defective in that it failed to inform Reed that he was entitled to the services of an appointed attorney at the time of the interrogation. That precise point was carefully explained in Miranda v. Arizona, 384 U.S. 436 1966):
In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a láwyer if he has one or has the funds to obtain one.
* # # #
This does not mean, as some have suggested, that each police station must have a “station house lawyer” present at all times to advise prisoners. It does mean, however, that if police propose to interrogate a person they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any interrogation.
See also Moore v. State, 251 Ark. 436, 472 S.W. 2d 940 (1971).
Reversed. | [
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Ed. F. McFaddin, Justice.
Appellant was convicted and fined for permitting Ms livestock to run at large in violation of the 1948 Initiated Act No. 1 of Jefferson County; and this appeal ensued.
The case Avas tried on facts stipulated as follows:
“. . . that on May 1, 1949, Lonzo McGarity, a resident of Jefferson County, permitted his hogs, 14 in number, to run at large in Jefferson County, Arkansas, after having first been notified by Douglas Riley to put up and confine said hogs,-and after such notice defendant refused to do so.
“It is further understood and agreed that there is no county-Avide stock law in Pulaski County.”
The said Initiated Act No. 1 — adopted by the voters of Jefferson County at the 1948 General Election — reads in part:
“That, from the effective date of this act, it shall be unlawful for any livestock to run at large in Jefferson County, and whenever any livestock are (is) running at large, it shall be the duty of the owner thereof, within twenty-four hours after verbal or written notice of such fact, to take up such livestock and confine them; and in case of such owner’s failure or refusal to do so, he shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined a sum of not less than $10 nor more than $50 for each offense, and each day the said livestock shall run at large after such notice shall constitute a separate offense.”
Appellant relies on the Florida case of Thomas v. Mills, 107 Fla. 385, 144 So. 882, as authority for reversal. The Flo'rida law required a County to fence its boundaries before putting a County stock law into effect. We have no such requirement in Arkansas; so the Florida case is not ruling. The stipulated fact — that Pulaski County (adjoining Jefferson County), has no law prohibiting cattle from running at large — is of no benefit to the appellant, because he is a resident of Jefferson County. See Linehart v. Bruton, 207 Ark. 536, 181 S. W. 2d 468. Furthermore, one residing outside the affected territory is guilty of law violation if he knowingly allows his cattle to cross the boundary into a prohibited territory in violation of a stock restraint law. See DeQueen v. Fenton, 100 Ark. 504, 140 S. W. 716.
In view of the stipulated facts in this case, and our holdings in the case of Smith v. Plant, 179 Ark. 1024, 19 S. W. 2d 1022, and Turnage v. Gibson, 211 Ark. 268, 200 S. W. 2d 92, this case must be affirmed, since we are unable to perceive any reason why these cases are not ruling in the case at bar.
Affirmed.
Authority for such a County law as this is found in Initiative and Referendum Amendment No. 7 to our Constitution. See, also, Dozier v. Ragsdale, 186 Ark. 654, 55 S. W. 2d 779, and Tindall v. Searan, 192 Ark. 173, 90 S. W. 2d 476. | [
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David Newbern, Justice.
This appeal is from five instances in which a Chancery Court, Juvenile Division, held the Arkansas Department of Human Services (DHS) liable for court costs, probation fees, and restitution to victims as a delinquent juvenile’s custodian pursuant to Ark. Code Ann. § 9-27-330(5) & (6) (Supp. 1991). The cases have been consolidated on appeal because all involve that issue. DHS argues it is not a “custodian” of juveniles in its care as that term is used in the Statute and, even if it is a custodian, sovereign immunity protects it against assessment of the costs and restitution awards in actions it does not initiate. We hold DHS is a “custodian” as that term is used in the Statute, but the doctrine of sovereign immunity precludes the assessment of costs and restitution against DHS in the circumstances presented.
In the first of the cases a juvenile was committed to the Youth Services Center in 1989,' 1990, and 1991 for several delinquent acts. When the juvenile’s parents filed a petition to terminate their parental rights, DHS sought emergency custody. DHS was given custody on August 27,1991, and the juvenile was placed in the foster care system.
In December of 1991, the State filed a delinquency petition alleging the juvenile stole several items from her foster mother. The juvenile was again found delinquent and committed to the Youth Services Center. The Juvenile Court required DHS, as the juvenile’s custodian, to pay $35 in court costs and $500 in restitution to the victim.
In the second case, DHS filed a petition seeking emergency custody of a dependent-neglected juvenile in July of 1989 which the Court granted. In May of 1991, DHS filed a petition to terminate parental rights. The Juvenile Court granted the petition and gave DHS the authority to consent to the juvenile’s adoption without the necessity of parental notification. The juvenile was continued in DHS’s custody.
In October of 1991, a delinquency petition was filed against the juvenile for a theft offense. The juvenile was found delinquent and placed on indefinite probation. The Juvenile Court assessed $35 in court costs and a $20 monthly probation fee against DHS in connection with the delinquency proceedings.
In a third case, a juvenile was placed in the Youth Services Center in 1989 for several felonies and misdemeanors. Upon release, the Juvenile Court ordered DHS to open a protective services case on the juvenile and his family. In September of 1990, the juvenile was again committed to the Center, and DHS was awarded custody upon his release. After leaving the Center and while in DHS’s custody, the juvenile perpetrated several delinquent acts causing him to be placed in the Center again. The Juvenile Court required DHS to pay $530.02 in restitution to the victim.
In the fourth case before us, DHS was ordered to open a protective services case on a juvenile and his family in 1989. In April of 1990, the juvenile was committed to the Youth Services Center for several delinquent acts, and upon release, custody was awarded to DHS. In November of 1991, the juvenile was again adjudged delinquent for theft by receiving and assault in the first degree. The Juvenile Court required DHS to pay $1226 in restitution to the victims of the offenses.
The fifth case before us is slightly different only because the juvenile was found to be delinquent for committing an offense while in custody of the Youth Services Center. The Juvenile Court required DHS to pay $2000 in restitution to the victim and $35 in court costs. The Juvenile Court found no difference between a delinquent act committed while in DHS custody and a delinquent act committed while in the custody of the Center which is established under the Youth Services Board. Ark. Code Ann. § 9-28-204 (1987).
DHS moved to vacate the orders imposing court costs, probation fees, and restitution in each of the five cases. DHS argued the Juvenile Court was without subject matter jurisdiction to impose awards in violation of sovereign immunity, contending exclusive jurisdiction over these claims was vested in the Arkansas Claims Commission. The motions were denied.
The Trial Court first determined that the definition of “custodian” in Ark. Code Ann. § 9-27-303(9) (1987) is clear and unambiguous and included DHS. As DHS was a custodian under the clear definition of that term, subsections (5) and (6) of § 9-27-330 apply to it. With respect to the sovereign immunity issue, the Court first held the payment of costs, fees, and restitution in delinquency proceedings was not a “claim” against the State in the traditional sense of the words thus sovereign immunity did not apply. Second, the Court held DHS voluntarily waived its immunity by entering its appearance in the dependency-neglect proceedings and becoming a custodian and a defendant in the delinquency proceedings.
1. Statutory interpretation
The Juvenile Code provides that when a juvenile is adjudged delinquent the court may, among other things: (1) assess a court cost of no more than thirty-five dollars to be paid by the juvenile or his parent, guardian, or custodian; (2) order restitution to be paid by the juvenile or his parent, guardian, or custodian; or (3) order a fine of not more than five hundred dollars to be paid by the juvenile or his parent, guardian, or custodian. Ark. Code Ann. § 9-27-330(5) & (6) & (7) (Supp. 1991). Restitution may only be ordered if the loss caused by the juvenile is proven by a preponderance of the evidence, and the amount may not exceed two thousand dollars. Ark. Code Ann. § 9-27-331(d) (Supp. 1991).
The Code defines “custodian” in part as “a person, agency or institution to whom a court of competent jurisdiction has given custody of a juvenile by court order.” § 9-27-303(9) (emphasis added). In view of the clarity of this provision we need not discuss all of DHS’s arguments on this point. DHS is an agency which has been given custody of the four juveniles discussed in the first four cases recited above, thus it is a custodian for purposes of the provisions assessing costs and restitution. When the language of a statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation. See, e.g., Patrick v. State, 265 Ark. 334, 576 S.W.2d 191 (1979); Southern Surety Company v. Dardanelle Road Imp. Dist. No. 1, 169 Ark. 755, 276 S.W.2d 714 (1925).
It was clearly wrong for the Trial Court to assess a probation fee against DHS. Section 9-27-330 does not authorize the assessment of a probation fee against a custodian. A juvenile court’s authority to assess a probation fee is based upon Ark. Code Ann. § 16-13-326(a) (Supp. 1991). This Statute is silent on assessing a probation fee against a custodian.
2. Sovereign immunity
The Statute authorizes the Court to order a custodian such as DHS to pay costs and restitution. The fundamental question is whether that violates the sovereign immunity provision in Ark. Const, art. 5, § 20: “The State of Arkansas shall never be made defendant in any of her courts.” To answer this question, we must first decide whether the Trial Court’s orders constitute a claim or claims against the State. Second, we must determine whether DHS has waived its immunity by entering an appearance.
a. Claim against the State
The Trial Court ruled as follows on the issue of whether there was a claim against the State:
It is not a lawsuit against the State in the traditional sense of the word. The State, by assuming custody of the juvenile, thereby becomes responsible for the actions of the juvenile and must provide for the well-being and care of that juvenile. When that juvenile is hailed into Court they must appear as the responsible parents, they must partake in the intake process, appear in Court and abide by the Court’s decision as parents normally would.
In Commission on Judicial Discipline & Disability v. Digby, 303 Ark. 24, 792 S.W.2d 594 (1990), Gannett Publishing Company brought a declaratory judgment action seeking to require the Judicial Discipline and Disability Commission to release information from its files to the public. Gannett sought costs and expenses. The Commission argued the Circuit Court was, on the basis of sovereign immunity, without jurisdiction to hear the action. We held the declaratory judgment action could proceed only to the extent the State would incur no financial liability. We granted prohibition to prevent the exercise of jurisdiction with respect to costs and expenses against the State.
In Beaulieu v. Gray, 288 Ark. 395, 705 S.W.2d 880 (1986), Beaulieu sued administrators and engineers of the Arkansas Highway and Transportation Department for injuries sustained in a car accident. We held sovereign immunity prevented what was, in reality, a suit against the State and stated:
Accordingly, it is well settled, as a general proposition, that, where a suit is brought against an officer or agency with relation to some matter in which the defendant represents the state in action and liability, and the state, while not a party to the record, is the real party against which relief is sought so that a judgment for plaintiff, although nominally against the named defendant as an individual or entity distinct from the state, will operate to control the action of the state or subject it to liability, the suit is in effect one against the state and cannot be maintained without its consent.
citing Page v. McKinley, 196 Ark. 331, 118 S.W.2d 235 (1938). Because the State would be required to pay any judgment, sovereign immunity prevented the claim.
Most cases which address sovereign immunity involve some type of lawsuit being filed against a state agency or officer. See, e.g., Department of Human Services v. Crunkleton, 303 Ark. 21, 701 S.W.2d 704 (1990); Arkansas State Highway Comm. v. Lasley, 239 Ark. 538, 390 S.W.2d 443 (1965); Roesler v. Denton, 239 Ark. 462, 390 S.W.2d 98 (1965). In this case, no one has filed a lawsuit against DHS seeking costs and restitution. Instead, the Court has imposed, under statutory authority, costs and restitutionary awards against a state agency in connection with delinquency proceedings when the agency acts as a custodian of a juvenile.
While no suit, in the traditional sense, has been brought against the State, the State will no doubt have been coerced to bear the financial obligation to pay costs and restitution if the orders are upheld. Any suit, whether in law or equity, which has for its purpose and effect, directly or indirectly, coercing the State, is one against the State. Watson v. Dodge, 187 Ark. 1055, 63 S.W.2d 993 (1933).
We recognize there is authority for the proposition that a court may impose fines against DHS for contempt. For example, in Arkansas Department of Human Services v. Clark, 305 Ark. 561, 810 S.W.2d 331 (1991), the Juvenile Court assessed a $250 contempt fine when DHS failed to comply with a court order. See also Arkansas Department of Human Services v. Gruber, 39 Ark. App. 112, 839 S.W.2d 543 (1992) (court assessed a $150 fine when DHS representative failed to appear at scheduled hearing).
No doubt a fine assessed against DHS is coercive of the State. DHS attempts to distinguish the Clark case by arguing that the Trial Court there clearly had the authority to issue the orders found to have been violated by DHS employees. That misses the point because the order to which the sovereign immunity issue was relevant was the order requiring DHS to pay a fine rather than the orders DHS agents violated which resulted in the fine.
Criminal contempt cases constitute an exception to the sovereign immunity doctrine. The power to punish for contempt is an inherent power of the court. Gatlin v. Gatlin, 306 Ark. 146, 811 S.W.2d 761 (1991). While we agree the State cannot be coerced as the result of a judgment in favor of a litigant, we recognize that a court must have the authority to control the parties and other persons before it. A state agent or agency having full knowledge of a court order and its import cannot disregard it and claim entitlement to sovereign immunity in response to a contempt citation. See Cammack v. Chalmers, 284 Ark. 161, 680 S. W.2d 689 (1984), as well as other cases cited in Commission on Judicial Discipline and Disability v. Digby, supra, in which we held an agent of the State is subject to being enjoined for an illegal, unconstitutional, or ultra vires act.
b. Waiver of immunity
The second issue is whether DHS has waived sovereign immunity by obtaining custody of each juvenile and appearing in the delinquency proceedings. The Juvenile Court ruled these actions constituted a waiver by appearance.
The leading case on this issue is Arkansas Game & Fish Comm’n v. Lindsey, 299 Ark. 249, 771 S.W.2d 769 (1989). There, the County Court granted Lindsey a right of access across lands owned by the Game & Fish Commission. The Commission argued sovereign immunity prohibited the action against a state agency. We disagreed, stating the Commission waived sovereign immunity by voluntarily entering its appearance and seeking affirmative relief. We noted the Commission was under no obligation to appear and defend, but upon voluntarily doing so, it submitted to judgment. When the State is the moving party seeking affirmative relief, it is prohibited from raising sovereign immunity as a defense. Fireman’s Ins. Co. v. Arkansas State Claims Comm’n, 301 Ark. 451, 784 S.W.2d 771 (1990).
In none of the proceedings now before us was DHS the initial moving party. Its appearances subsequent to the com plaints being filed against the juveniles was pursuant to DHS’s obligation to obtain custody of the juveniles in the dependency-neglect proceedings and appear in the delinquency proceedings. The Juvenile Court recognized this by stating, “In order for them [DHS] to carry out their assigned responsibilities they must initiate Petitions in Juvenile Court and thus voluntarily subject themselves to the jurisdiction of that Court.” Unlike the Commission in the Lindsey case, DHS was under an obligation to appear. It thus did not voluntarily waive sovereign immunity.
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George Rose Smith, Justice.
W. A. Cluck died intestate in 1960, survived by his widow, Blanche Cluck, and by four daughters and two sons. The decedent’s property has been the subject of at least four family lawsuits, two of which have previously reached this court. Mack v. Cluck, 262 Ark. 12, 554 S.W.2d 325 (1977); Cluck v. Mack, 264 Ark. 842, 576 S.W.2d 930 (1979). There was also litigation about an insurance policy. Cluck v. Mack, 253 Ark. 769, 489 S.W.2d 8 (1973).
The present suit was brought in 1981 by the widow and three of the daughters to cancel four 1970 deeds by which they had conveyed certain property to the fourth daughter, Margaret Ann Mack, in return for the grantee’s promise to take care of the widow for the rest of her life. The grantee was killed in 1980. The four plaintiffs then brought this suit against the estate of the deceased daughter, Margaret Ann Mack, asserting principally that Margaret Ann had been guilty of fraud and forgery in obtaining the deeds, that she had never performed her promise to support her mother, and that she had failed to account for the rents collected upon the farm property conveyed by the four deeds. The chancellor refused to cancel the deeds, but did award the widow a judgment for $44,177.95 for rentals due the widow during the five years preceding the institution of the suit. An appeal and cross appeal bring certain aspects of the case up for review. The Court of Appeals transferred the case under Rule 29(1) (p).
The issues hinge essentially upon questions of fact, most of which turn upon the credibility of the witnesses. A prolonged discussion would be of no real value as a precedent. Consequently we comment only very briefly upon the various contentions urged by the parties to the appeal.
The chancellor’s finding that Margaret Ann did not forge the signature of her sister Doris Swang to one of the deeds is amply supported by the convincing testimony of a handwriting expert, Linton Godown, who testified that the signature was genuine. Blanche Cluck testified that she did not sign a comparatively unimportant deed apparently executed by her in 1975, conveying 1.05 acres to Margaret Ann, but the chancellor evidently did not accept her unsupported testimony, given years later. Moreover, the chancellor had signatures available to him for comparison, but those exhibits have not been reproduced for our examination, as might have been done under Rule 9 (d).
We are not persuaded by the appellants’ argument that Margaret Ann defrauded her mother and sister by procuring their signatures with no intention of supporting Mrs. Cluck. Shortly before the sisters’ deeds were executed in 1970, Margaret Ann’s attorney wrote a letter to them saying that if any of the other three daughters would take over the farm and the personal day-to-day care of Mrs. Cluck for the rest of her life, Margaret Ann would gladly deed her interest in the property to the daughter assuming the responsibility. That offer was not accepted by any of the others, who instead executed deeds to Margaret Ann. She did assume the responsibility for looking after her mother and did so until her own death about ten years later. The chancellor evidently did not give credence to Mrs. Cluck’s complaints, after Margaret Ann’s death, about her mistreatment. We think it significant that in 1976, while Margaret Ann was living, Mrs. Cluck testified in an earlier case that Margaret Ann had looked after her continuously and that she herself could think of nothing Margaret Ann should be doing that she had not done since the deeds were executed. Quite obviously the chancellor did not accept Mrs. Cluck’s testimony that for ten years she was so afraid of Margaret Ann that she dared not complain of mistreatment.
In the circumstances of this case Margaret Ann’s death is not in itself a basis for canceling the four deeds. In the first place, in 1971 the chancellor found in an earlier case that Blanche Cluck was in effect a life tenant of the property, entitling her to possession and to the exclusive authority to rent the land. See the 1979 Cluck v. Mack opinion, supra. Margaret Ann’s death did not affect that situation. And second, although Mrs. Cluck might argue that she conveyed her interest to Margaret Ann because she relied upon that particular daughter’s personal ability to look after her, it is evident that the other three sisters were not similarly motivated. The dedication of the rentals to their mother’s support satisfied their expectations, even though someone else must take care of Mrs. Cluck after Margaret Ann’s death. Margaret Ann’s son and his wife, appellees, have offered to do that.
We have considered the appellants’ various arguments for reversal and are unanimously of the opinion that the chancellor’s decision was not clearly erroneous.
On cross appeal the administrator of Margaret Ann’s estate does not question the accounting by which the chancellor awarded Mrs. Cluck $44,177.95 for past rentals, but he argues that Mrs. Cluck accepted Margaret Ann’s performance of her promise for ten years and should now be barred by waiver, estoppel, and laches from seeking an accounting. There was no conscious waiver of Mrs. Cluck’s rights, and both laches and estoppel rest upon some change of position detrimental to the person asserting those defenses. We perceive no injustice in requiring Margaret Ann’s estate to account for the profits she accumulated in looking after her mother’s property. The administrator also argues, without citation of any authority except the three-year statute of limitations, Ark. Stat. Ann. § 37-206 (Repl. 1962), that the accounting should have gone back only three years instead of five. Margaret Ann’s obligation arose from the written deeds, not from an oral or implied promise; so the chancellor was right in applying the five-year statute. Section 37-209; Parker v. Carter, 91 Ark. 162, 120 S.W. 836, 134 Am. St. Rep. 60(1909).
Affirmed on direct and cross appeal. | [
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Kirby, J.
Appellee bank brought this suit to charge appellant with liability to the payment of a certain note sued on executed by his father to the bank, upon the allegation that the father had conveyed certain lands to appellant charged with a trust for payment of his debt to the bank.
Appellant demurred to the complaint and answered denying that D. C. Fenter had executed the note for the amount as alleged to the bank on November 5, 1926, and denied that the Exhibit A to the complaint was a copy of the note; admitted that on August 6, 1924, his father executed and delivered to him two deeds conveying certain of the lands, 70 acres, and on October 1, 1924, executed and delivered to him another warranty deed conveying to him the other 40 acres; denied that there was any consideration expressed in said deeds or that there was any verbal understanding or agreement between the grantor and him that he was to assume and pay the note to the plaintiff or any other indebtedness that might become valid claims against the estate of D. C. Fenter; alleged that, after the execution and delivery of the deeds, he took possession of the lands, lived on them and paid the faxes for more than two years before the execution of the note sued on; denied that he was trustee for the bank or that he held the lands otherwise than as his own, and adversely to every one else after the execution of the deeds; denied that plaintiff had asked for an administration on the estate of D. O. Fenter as one of the creditors, notwithstanding Fenter had been dead for more than two years.
It appears from the testimony that the deeds, ordinary warranty deeds, were made by D. C. Fenter, the father of appellant, upon the dates alleged, each reciting a consideration of $5. Appellant stated he took possession of the lands after the conveyance, took care of his father and supported him from that time until his death, and agreed when the deeds were delivered to pay two debts, one the individual debt of' his father to the appellee bank for $200 and $200 due to John A. Cunningham, the note to Cunningham being secured by a mortgage on some of the lands; that he thereafter paid or arranged to pay these debts; that he agreed to pay and took care of and supported his father during the remainder of his life. He denied that there was any agreement on his part to pay the note or debt sued on by the bank, evidenced by the note dated nearly two years after the execution of the deeds to him by his father.
The cashier of appellee bank testified that the note sued on was executed by H. F. 'Cloud, D. C. Fenter and A. R. Nichols dated November 5, 1926, but that it was a renewal note for a note executed November 5, 1925. He then gave a history of the note claiming the first note, of which he said this was a renewal, was given to the bank in November, 1920, for $165, and that it had never been paid except by renewals. He was not able to explain why the note sued on did not show on its face that it was a renewal note, but said that it was not necessary that it should, since the bank’s books showed that it was such a renewal.
Nichols, one of the parties to the note, testified that it had been given and renewed several times; that, after it was due the last time, he had had a conversation with appellant, having heard that his father had deeded him certain lands charged with the payment of his debts, about the payment of this note, and appellant denied that he had agreed to pay this note at all, and refused to renew it or pay it before the suit was brought; said he would not have renewed this note when it was presented to him the last time if D. C. Fenter had not represented to him that he had deeded his lands to appellant in consideration that he would pay all his obligations and debts.
The justice of the peace who prepared the deeds for execution testified that Fenter said to him when he made the deeds; “I want to deed Gilbert my place. I have some debts which Gilbert is going’ to have to pay if they are ever paid, and of course I want them paid. It looks like I am not going to be able to work any more, and it would not be right for Gilbert to pay my debts and the other children come in and share equal.” Witness said he did not think Mr. Fenter deeded his lands to Gilbert for the purpose of defrauding his creditors. He did not know what debts he expected Gilbert to take care of, but said he had some debts that Gilbert would have to pay if they were paid.
Appellant stated that he did not consider that he owed the Cloud note, the one sued on, that he did not assume the obligation, took care of the funeral expenses, the doctor ¡bills and all the personal indebtedness his' father told him about, and that he never told him anything about this Cloud note; that he never heard of it until after his father’s death, when some one came to him asking him to pay it off or renew it, and that he refused to do so, and it was not part off the consideration he was to pay for the lands.
It appears that he paid out about $1,100 for his father’s indebtedness and funeral expenses, and this was about the value of the lands as some witnesses testified.
The conveyances of the lands to appellant make no mention of any trust for the payment or security of any debts of the grantor by the grantee, appellant, as attempted to be proved by appellee to charge appellant with the payment of the debt sued on. An express trust cannot be proved by parol evidence, and neither will such evidence be heard to graft an express trust upon a deed absolute in its terms. Salyers v. Smith, 67 Ark. 526, 88 S. W. 753 ; Harbour v. Harbour, 103 Ark. 273, 88 S. W. 589.
Appellee attempted to prove as a consideration for the conveyance olf the lands by D. C. Fenter to his son, appellant, an agreement on his part to pay the indebtedness of the grantor to the bank evidenced by his signature to the note sued on; and, if such conveyances had been made without a valuable consideration, the want of such consideration would not of itself have created a presumption that the grantee was the trustee of the grantor. The burden of proof was upon the appellee bank to displace the title or right of the appellant to the enjoyment of the beneficial interest in the lands by such evidence of intention on the part of the grantor to create a trust, and this burden cannot be discharged by a mere preponderance of the testimony. The evidence required must be ¡full, clear and convincing. Eaton’s Equity, p. 404; Tiller v. Henry, 75 Ark. 446, 88 S. W. 573 ; McNutt v. McNutt, 76 Ark. 14, 88 S. W. 589.
The conveyances to appellant -were by no means voluntary conveyances without consideration, it. appearing- from the testimony that there was an adequate consideration money actually paid out equal to about the value of the lands conveyed. The conveyances were not attempted to be set aside as made in fraud of creditors, and there was no testimony offered to show that they were voluntary conveyances nor to impress the lands with a trust for the payment of the note or debt sued on. The decree is not supported by such testimony as the la.w requires shall be furnished or produced in such cases, and the chancellor erred in so holding and in not dismissing the cause for want of equity.
The decree is reversed, and the cause remanded, with directions to enter a decree in accordance with this opinion. | [
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Robert H. Dudley, Justice.
In Allton v. Sumter, 274 Ark. 448, 625 S.W.2d 502 (1982), we remanded this case to the trial court to conduct a hearing on whether a decree of adoption should be set aside on the basis of fraud. The trial court set aside the decree and we affirm. The issue presented is whether, under our prior adoption law, the fraud involved was of the extrinsic type which tolled the statute of limitations. Jurisdiction is in this Court pursuant to Rule 29 (1) (j), the subsequent appeal rule.
On June 15,1977, appellant Donald Ray Sumter filed a petition to adopt Christopher Charles Allton. Appellant Sue Ann Sumter, the biological mother and the wife of Donald Ray Sumter, joined in the petition and gave her consent to the adoption. They falsely alleged that the biological father, appellee William C. Allton, had abandoned Christopher. As a result, no notice was given to the biological father and he did not appear to contest the proceeding. The final order of adoption was granted in 1978 but appellee did not learn of it until 1980. He immediately filed suit to set aside the final order of adoption. The probate judge held that the action was governed by the Revised Uniform Adoption Act which bars a challenge to an order of adoption for any reason more than one year after the final decree. However, the effective date of the Revised Act was July 5, 1977, which was after the petition in this case was filed. The biological father filed the first appeal and we reversed. We held that the proceeding was governed by the statutes in effect on the date the petition was filed. In that opinion we stated:
The appellant [biological father] made a proffer of proof that in our judgment was a prima facie showing that the appellant’s former wife did conceal the adoption proceedings from the appellant and did commit fraud in obtaining the decree. It will be up to the trial judge to conduct a hearing to see if fraud actually existed and if it was the kind and nature that would entitle the appellant to set aside the decree. In Olney v. Gordon, 240 Ark. 807, 402 S.W.2d 651 (1966) and Hughes v. Cain, 210 Ark. 476, 196 S.W.2d 758 (1946), we found that a natural parent wrongfully deprived of a notice and opportunity to participate in an adoption proceeding has standing to petition to set aside the adoption decree. Furthermore, in Olney, we held that the statute of limitations was tolled when fraudulent concealment of the parent’s cause of action existed. The issue of fraud is critical because this suit was filed beyond the two year statute and without such proof the appellant’s claim could possibly fail. But see Armstrong v. Manzo, 380 U.S. 545 (1965); Hughes v. Cain, supra.
If the appellant succeeds in his claim of fraud, then the proceedings will be conducted as though no temporary order had been entered, and in accordance with the law in effect when the petition to adopt was filed. The question of whether the appellant abandoned his child will be an issue to be relitigated.
Allton v. Sumter, 274 Ark. at 451, 625 S.W.2d at 504.
Upon remand the trial judge held that appellants had perpetrated a fraud upon the court by alleging that appellee had abandoned his son when, in fact, he had not. The probate judge found that such action constituted an extrinsic fraud which tolled the applicable statute of limitation. Ark. Stat. Ann. § 56-112 (Repl. 1971), repealed by 1977 Ark. Act 735, § 22. He then set aside the decree of adoption and, as a result, this case is before us for the second time.
The appellants contend that abandonment was an issue to be resolved in the original action and therefore the matter is intrinsic, not extrinsic, and may not be used to toll the statute of limitations. However, that argument fails because the fraudulent allegation of abandonment did more than establish that single fact in the original proceeding. It operated to deny the biological father notice of the proceeding and prevented him from contesting the termination of his parental relationship. The fraud practiced in this case fits within our definition of extrinsic fraud:
The fraud which entitles a party to impeach a judgment must be fraud extrinsic of the matter tried in the cause, and does not consist of any false or fraudulent act or testimony the truth of which was or might have been in issue in the proceeding before the court which resulted in the judgment assailed. It must be a fraud practiced upon the court in the procurement of the judgment itself.
Williams v. Purdy, 223 Ark. 275, 265 S.W.2d 534 (1954) quoting Parker v. Sims, 185 Ark. 1111, 51 S.W.2d 517 (1932).
The probate judge correctly ruled that the nature of the fraud was sufficient to toll the statute of limitations and appropriately set aside the original decree.
The probate court must be affirmed for another reason. There was no notice to the biological father. Under our prior statutes which were repealed in 1977, Ark. Stat. Ann. §§ 56-104 and 56-106 (Repl. 1971), an adoption was authorized without consent of a parent in the event of abandonment, but notice was required in order to determine the question of abandonment. If no notice was given the probate court was without jurisdiction. Hughes v. Cain, 210 Ark. 476, 196 S.W.2d 758 (1946); see also Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979); Schrum v. Bolding, 260 Ark. 114, 539 S.W.2d 415 (1976); Olney v. Gordon, 240 Ark. 807, 402 S.W.2d 651 (1966).
Affirmed. | [
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Mehaeey, J.
The appellant began this suit in the Mississippi Chancery 'Court on a note and mortgage, alleging that on the 18th day of February, 1922, Will Pyles was indebted to him in the sum of $4,232, evidenced by promissory note of that date, payable three years after date with interest at 10 per cent, per annum, and, when said interest is not paid at maturity, to become part of the principal and bear like interest; that, to secure the prompt payment of said indebtedness at maturity,'the defendant executed a certain deed of trust conveying to B. A. Lynch, as trustee for plaintiff, the following lands: lots 8 and 9, block 15, Chickasawba Addition to the town of Blytheville, Arkansas. It was alleged that the deed was duly acknowledged and filed for record, and is now of record in Mississippi County. That defendants, Will Pyles and Ada Pyles, have failed to pay, and that there is now due the sum of $4,432 with interest; that the defendant had refused to pay, and the plaintiff had a right to foreclose said property and have the same sold for the satisfaction of the indebtedness.
The defendants, Will Pyles and Ada Pyles, answered admitting that Will Pyles executed the note and deed of trust, but denied that they were indebted to plaintiff in any sum whatever. They alleged that the note and mortgage were procured by fraud of plaintiff; that the property described in the complaint constitutes their homestead; that Ada Pyles did not sign the deed of trust or note, and that it is void for that reason. They asked that the complaint be dismissed.
Ramey testified as to the indebtedness and the execution of the note and mortgage and the following is an agreed statement of facts: “That on the'18th day of February, 1922, Will Pyles was indebted to Charles Ramey in the sum of $4,232; that on said date a note and deed of trust was executed by Will Pyles on lots 8 and 9, block 15, Chickasawba Addition to the town of Blythe-ville, Arkansas, to Charles Ramey; that lots 8 and 9, block 15, of the Chickasawba Addition to the town of Blytheville, Arkansas, was on and before the said 18th day of February, 1922, and still is, the homestead of Will Pyles and Ada Pyles; that Ada Pyles is the wife of Will Pyles; that on said date the deed of trust was signed by Will Pyles, was taken to Ada Pyles for her signature, and the said Ada Pyles refused to sign said note and deed of trust.”
There was a judgment against Will Pyles on the noté for the amount sued for, and the court held that the deed of trust created no Men on the property and the petition to foreclose was dismissed for want of equity, and that the plaintiff have only personal judgment against Will Pyles.
To reverse that part of decree holding deed of trust void and dismissing the complaint as to the deed of trust, Ramey prosecutes this appeal.
The statute, with reference to conveyance or mortgage of homestead, is as follows: “No conveyance, mortgage or other instrument affecting the homestead of any married man shall be of any validity except for taxes, laborers’ and mechanics’ liens and the purchase money, unless his wife joins in the execution of such instrument and acknowledges the same.” C. & M. Digest, § 5542. This note and mortgage were executed by Will Pyles in 1922. In 1923 a curative act was passed by the Legislature which reads as follows: “That all deeds, conveyances, instruments of writing affecting or purporting'to affect the title to real estate situated in this State, which have been recorded and which have been heretofore executed, and which may hereafter be recorded, and which are defective or ineffectual by reason of section 1 of an act entitled, ‘An act to render more effectual the constitutional exemption of homesteads,’ approved March 18, 1887, be and the same and the record thereof are hereby declared as valid and effectual as though, said act had never been passed.”
It is the contention of appellant that this act of 1923 cures the defect in the execution, or rather makes effec tual the deed of trust as though, the act of 1887 had never been passed. Numbers of decisions of this court are cited and relied on by appellant to sustain this contention. We do not, however, agree with this contention of the appellant. It is agreed in this case not only that the wife did not sign or acknowledge the mortgage, 'but that she absolutely refused to do so. We said in a recent case: “A curative statute is only intended to cure defects in the execution of a mortgage, and cannot in the very nature of things render valid an act which was absolutely void in the beginning. In short, if a party had never signed a mortgage or deed and it should be held that a curative act which had been passed afterwards could have the effect of making the mortgage or deed effective as far as the person who did not sign it is concerned, this would necessarily have the effect of depriving such person of his property without due process of law. * * * The right which a curative statute or healing act takes away in such case is the right in the party to avoid his contract. Such legislative acts are sustainable only because they are supposed not to operate upon the deed or contract by changing (it but upon the mode of proof.” Hall v. Mitchell, 175 Ark. 641, 1 S. W. (2d) 59.
In a more recent case this court Quoted with approval from the Hall case the following: “A curative statute is onlv intended to cure defects in'the execution of a mortgaa’e. and cannot in the very nature of things render valid an act whPh was absolutely void in the beginning. * * * The curative act in Question did not purport to cure anything’ except the defective instruments and does not purport to' render valid and effectual an act which had never been done.” Simpson v. Teftler, 176 Ark. 1093, 5 S. W. (2d) 350.
The above cases are the latest cases decided by this court on the Question involved here. The authorities were reviewed in the case, of Hall v. Mitchell, supra, and it is not necessary to again call attention to them.
It will be observed that the law at the time this mortgage was executed provided that it should not be of any validity. If it was not of any validity, it was a mere nullity. The proper execution of a note and mortgage constitutes a contract, hut if it has no validity it is not a contract and one principle of law which is thoroughly settled, is that neither the Legislature nor the courts can make contracts for parties where they have made none. In this case the wife refused to sign the mortgage, then, under the statute existing at that time, the mortgage had no validity, it was void, no contract was made, and since the parties had made no contract, the Legislature and court are without authority to make one for them.
“A contract which the law denounces as void is necessarily no contract whatever, and the acts of the parties, in an effort to create one in no wise brought about a change of their legal status. The parties and the subject-matter of the contract remain in all particulars just as they did before any act was performed in relation thereto. Of course, an action cannot be maintained for damages for the breach of a void contract. A void contract is a mere nullity. It is obligatory on neither party. It requires no disaffirmance to avoid it, and cannot be validated by ratification. A contract wholly void is void as to everybody whose rights would be affected by it if valid.” 6 R. C. L. 591.
Curative statutes, as this court has said, are intended to cure defects or irregularities. There would be some reason to hold that a curative act made valid a mortgage of the homestead where parties intended to execute the mortgage properly, where their minds met and the contract was really entered into or agreed to and there was some defect or failure in the proper execution of it, but certainly no one will contend that, the Legislature or the court can make a binding contract for the parties where they themselves have made none. No mortgagee can be injured by this because he is bound to know that a mortgage on a homestead without the wife joining the deed is of no validity, and when he takes his mortgage he either knows or can know whether the property described in the mortgage or deed of trust is the homestead. In the instant case the wife refused to sign the deed of trust and the mortgagee' knew it, he therefore knew at the time of the transaction that the deed of trust was without any validity. The decree of the chancery court is correct, and therefore affirmed.
Smith, MoHaney and Butler, JJ., dissent. | [
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Steele Hays, Justice.
Appellant operates a machine shop, transforming unprocessed metal materials into finished products. In June, 1976 appellant bought twelve pieces of equipment in Oklahoma for use in its shop in Arkansas and was assessed a use tax of three percent of the purchase price under the Arkansas Compensating Tax Act of 1949, Ark. Stat. Ann. § 84-3101 (Repl. 1980), et seq., amounting to $696.68 in tax, penalty and interest.
Appellant paid the assessment under protest, claiming the purchase was exempt under § 84-3106 (D) (2), which exempts machinery and equipment “used directly in producing, manufacturing, fabricating, assembling, processing, finishing, or packaging articles of commerce at manufacturing or processing plants or facilities in the State of Arkansas” and sued to recover the amounts paid. The Chancellor found the appellant was not engaged in manufacturing as that term is used in the act and on appeal appellant claims the decision is against the clear preponderance of the evidence. We affirm the Chancellor.
While we are persuaded that appellant’s milling operation changes raw metal into a finished product, we are not persuaded that the finished product is an “article of commerce”, as required under the exemption provision of the act, § 84-3106 (D) (2) (a, b and c). The Chancellor was justified in finding under the evidence that appellant does not maintain a stock or inventory of finished articles for sale to the general public, rather, it produces custom items prepared for specific customers in response to special orders. Its products are prepared to customer specifications and are not readily marketable to the general public. We think the Chancellor’s finding was consistent with the preponderance of the evidence. See ARCP Rule 52.
In Western Paper Company v. Qualls, 272 Ark. 466, 615 S.W.2d 369 (1981), we held that a commercial printer did not qualify for the exemption allowed manufacturers under the Arkansas Gross Receipts Tax (Sales Tax), § 84-1904 (r) (2) (identical to the exemption provided in the use tax statutes) because the product created had no commercial market value other than to the individual customer for whom it was produced. We said: “Ordinarily, we think of a manufactured article as something to be placed on the market for retail to the general public in the usual course of business. Morley v. E. E. Barber Construction Co., 220 Ark. 485, 248 S. W.2d 689 (1952).”
We have frequently said that the party claiming an exemption from taxes has the burden of proving his entitlement beyond a reasonable doubt. S. H. & J. Drilling Corp. v. Qualls, 268 Ark. 71, 593 S.W.2d 178 (1980). Appellant has failed to meet that burden.
The decree is affirmed. | [
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Darrell Hickman, Justice.
This is a divorce case certified to us by the Court of Appeals because it involves an interpretation of Act 714 of 1981.
The chancellor awarded the appellee and cross appellant, Peggy Nantz Hackett, a divorce, custody of the parties’ children, child support of over $1,000 per month, the possession of the parties’ home and one-half of the marital property, both real and personal.
Both parties appeal seeking additional relief. The appellant, Shelby B. Hackett, complains that the chancellor refused to divide the parties’ debts and failed to designate the specific personal property each is to receive. Mrs. Hackett on cross-appeal seeks more than one-half of the property, alimony, more child support and an interest in Mr. Hackett’s part of a capital account with Southwestern Life Insurance Company where he is a salesman.
The decree is affirmed in every respect. In the matter of alimony and child support the chancellor is given wide discretion; in the former a power to grant or deny depends on the circumstances of the case and parties; in the latter, the chancellor may fix a sum that adequately provides for the support and maintenance of the minor children after considering all the circumstances of the case, including the parties’ station in life. Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982); Gross v. Gross, 266 Ark. 186, 585 S.W.2d 14 (1979). In this case we cannot say the chancellor was clearly wrong in either regard.
Act 714 of 1981 provides the marital property of the parties shall be divided equally unless the chancellor, for detailed reasons, finds otherwise. He did not find otherwise and we will not substitute our judgment for his. There is no evidence in this case Mr. Hackett had a vested interest in the capital account with Southwestern Life Insurance Company that was fully distributive upon the date of the Hacketts’ divorce. Therefore, Mrs. Hackett is not entitled to any portion of that account as “property” defined by Act 714. Bachman v. Bachman, 274 Ark. 17, 621 S.W.2d 701 (1981); Paulsen v. Paulsen, 269 Ark. 523, 601 S.W.2d 873 (1980).
Mrs. Hackett complains part of the child support goes to make the mortgage, tax and insurance payments on the family home which she was granted possession of. This also was a matter of discretion with the chancellor which we cannot say was abused. McClain v. McClain, 222 Ark. 729, 263 S.W.2d 911 (1954).
The only aspect of the case that is troublesome is the fact the chancellor found Act 714 did not require him to divide the debts. The parties offered evidence that their outstanding debts, besides mortgage payments on real estate, were about $13,555. The list totalled over thirty different debts and in most instances it is not clear who incurred the debts. The chancellor was not required by Act 714 to divide the debts, that is, to consider each debt and assign a party to pay it. But he was obligated to consider those debts in deciding the questions of alimony, support for the children, and perhaps the division of the property, and the chancellor may well have done so. Debts of the parties have always been a circumstance to be considered in divorce cases in awarding alimony. Yoke v. Yoke, 238 Ark. 642, 383 S.W.2d 665 (1964); Shirey v. Shirey, 87 Ark. 175, 112 S.W. 369 (1908). Debts incurred on behalf of minor children can be ordered paid. Robbins v. Robbins, 231 Ark. 184, 320 S.W.2d 498 (1959). Debts incurred by the parties regarding 'marital property can be ordered to be settled as between the parties. Goodlett v. Goodlett, 209 Ark. 297, 190 S.W.2d 14 (1945). Parties can be enjoined from incurring debts that will encumber property. Howard v. Howard, 204 Ark. 929, 166 S.W.2d 12 (1943). Obligations jointly made by the parties can be ordered to be settled, as between the parties. Riegler v. Riegler, 243 Ark. 113, 419 S.W.2d 311 (1969). An award of realty to the wife, silent as to who shall pay the mortgage, is an award subject to the mortgage. Crosser v. Crosser, 121 Ark. 64, 180 S.W. 337 (1915).
Indeed it would be unrealistic for a chancellor to refuse to consider the debts of the parties in deciding a divorce case. But that does not mean the chancellor must divide the debts. He may leave the parties as he found them, obligated individually or jointly to the creditor who is not ordinarily a party to a divorce and cannot therefore be bound by an order regarding the parties’ debts.
The fact the chancellor in this case refused to divide the debts is not error. However, we remand the case only to ensure that he did consider those debts and the party or parties liable thereon when he made his decision regarding alimony, child support and the division of property.
Finally, Act 714 does not require every piece of personal property to be divided in kind. Russell v. Russell, supra. (The Hacketts had three cars and household items.) The chancellor expressed a desire that the parties divide the personal property among themselves and indicated if they could not he would order it all sold and the proceeds divided. That alternative is still available to the parties and it is not an improper one.
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Mehahfy, J.
Appellant filed suit in the Crawford Circuit Court for the value of certain, crops raised on appellant’s land. Appellant had entered into an oral contract with his relative, Ed Rogers. Rogers was in bad health and made an agreement with appellee by which he sold the hay and the use of the pasture to appellee. The appellant testified in substance that Rogers agreed to cultivate such of the farm as he could and to take pay for any improvements he might make out of the rent, and that the payment of the rent was to be made to appellant; that he did not rent Rogers any hay-lands. He testified that he knew there was three times as much land as Rogers could cultivate.
Appellant went with Jim Holland to the farm and knew that Holland was thinking of buying Rogers ’ crop. Appellee was present at the time, and Rogers told appellant that he had given all the Johnson grass to appellee. When Hall purchased the crop, he took possession and mowed the meadow, but no one had a right to cut the meadow without talking to appellant, and $50 would have been a reasonable price for the hay cut; doesn’t know how many apples there were but understood that they were worth 75 cents a bushel; thought there was 100 or 150 bushels. He did not claim any part of the crop, but claimed that for use of the pasture he should have $50 and for the hay $50. Rogers was to make certain repairs. The only thing said about rent was that Rogers might take pay for his work out of rent. Rogers told appellant he was going to sell to Hall. Appellant sent John Myers to- get some apples, and he got some apples and a few cantaloupes. Rogers, who made the contract with appellant, testified that he had the place and lived there about three months. He was to have all he made and they were to divide the apples equally. He was to pay no rent, that he had made some improvements and sold what he had there to appellee. He did not remember that he agreed with appellant to take any pay for work out of the crop. There was nothing said about anything except the apples; told appellant that appellee was there to cut the Johnson grass. He got five bushels of apples. He did nothing to the meadow except fix a little fence.
Appellee Hall testified that when Rogers got sick he bought his crop and pasture and had already bought the hay; bought everything except the apples; gathered five bushels of apples.
Appellant told appellee that he ought to have some of the crop and appellee told him to help himself. Witness testified that Myers took about everything away. When asked if Myers got some peanuts, he said no, but that he got about everything else.
There were other witnesses who testified, but we do not deem it necessary to set out their testimony.
The court then on its own motion gave the jury the following instructions:
“1. Gtentlemen of the jury, the plaintiff sues defendant for use and rent, especially for the hay and pasture, of certain farm lands. Defendant admits he used the premises for pasture and received the hay. Defendant denies he owes anything, but charges he purchased the use of the premises for pasture and hay from Ed Rogers.
“2. You will find for the plaintiff the reasonable value of the hay that you find was produced on the premises, and the reasonable value of the use of the pasture as used by defendant, not to exceed the sum of $125, unless you find he purchased it from Ed Rogers and that Rogers had a right to sell.
“3. The plaintiff contends that he was to have half of the apples. Defendant admits he was to have half of the apples. Plaintiff contends that he did not receive half of the apple crop. If you find that he didn’t, and the failure was caused by defendant, Hall, then plaintiff would be entitled to half the apple crop, less that he did receive. ’ ’
Appellant contends for a reversal of the case because he says if Bogers was to pay no rent he was not a tenant, but a mere licensee. However, Bogers was to make some improvements, and the undisputed proof shows that he did make some improvements. Moreover, one could be a tenant under a. contract like the one Bogers says was made in this case, whether he was to pay any rent or not. A tenant is one who holds possession of real estate by any kind of right; one who has the occupancy or temporary possession of land or tenements, the title of which is in another.
Appellant next contends that instruction No. 1 given by the court was misleading because it indicated that Bogers had authority to rent the farm to the appellee, although appellant says Bogers had no authority.
In the first place, instruction No. 1 does not indicate that Bogers had authority to rent to appellee, but is simply a statement of the issues, one of which is that appellee claimed to have purchased from Bogers. Instruction No. 2 clearly submitted the issues to the jury and was as favorable to appellant as he was entitled to. It directed the jury to find for the plaintiff the reasonable value of the hay and the reasonable value of the use of the pasture, unless they found that appellee purchased it from Bogers and that Bogers had a right to sell. In other words, blefore the jury could find for the defendant under the above instructions, it would have to find from the evidence, first, that appellee purchased from Bogers, and, second, that Bogers had a right to sell. Certainly it cannot be contended that appellant would be entitled to recover if appellee purchased from Rogers’ property that Rogers had a right to sell.
Appellant contends, however, that there was no testimony upon which to base instruction No. 1. We think Rogers’ testimony not only justified the giving of this instruction, but that appellant acquiesced in the sale made by Rogers. Pie was present when Plolland went to purchase the crop and made no objections. Appellant also complains about the action of the court in giving instruction No.' 3 and in refusing to- give instructions requested by the appellant. Whether the instructions requested by appellant are correct statements of law of not, is immaterial, because instruction No. 2 given by the court covers the whole case, for under that instruction it was a question of fact for the jury as to whether appellant purchased the property from Rogers, and also a question of fact for the jury as to whether Rogers had a right to sell.
The jury having found these issues against the appellant, their findings on these matters are conclusive, and the judgment of the circuit court is affirmed. | [
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George Rose Smith, Justice.
The appellant, charged with the theft of a tractor-trailer, was found guilty of grand larceny and was sentenced to imprisonment for three years. His only assignment of error is that the State failed to prove that the stolen property was worth more than $35.
The owner of the tractor-trailer testified, in March, 1973, that he paid $3,300 for it “about two weeks before Christmas,” which would have been less than three months before the theft on February 15, 1973. The proof also shows that the rig was in operating condition and had apparently just been driven to Arkansas from North Carolina with a load of furniture.
We find the testimony sufficient to support the jury’s verdict. The qase is unlike Rogers v. State, 248 Ark. 696, 453 S.W. 2d 393 (1970), cited by appellant, for there the State offered no testimony to indicate the value of the stolen car, in dollars and cents. Here the State showed what the owner had recently paid for the stolen rig, which is a permissible factor for the jury to consider in determining market value. Williams v. State, 252 Ark. 1289, 482 S.W. 2d 810 (1972); Jones on Evidence, § 4.54 (6th ed., 1972). The jury, upon the uncontradicted proof in this case, could reasonably have concluded that the tractor-trailer combination was worth more than $35 on the date of the theft. In fact, the opposite conclusion would have been wholly unreasonable.
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■MoHaney, J.
Appellee sued appellant to recover damages for personal injuries sustained by Mm. by the falling of a rock, in the entry of the coal mine of appellant, in which he was working. He alleged that his injury was caused “by the negligence and carelessness of the defendant in failing to send down props, when requested to -do so by plaintiff, with which to prop the roof of his working place, and in further failing to send down the necessary props to prop said roof,” when requested so to do by another. Appellant denied the plaintiff’s contention that appellee’s injury was caused by its negli gence or carelessness in failing to send down props when requested by him, or in failing to send down props when requested to do so by another. The case was tried to a jury, which resulted in a verdict and judgment for appel lee, in the sum of $4,000.
For a reversal of the case, appellant first contends that the court erred in permitting witnesses, Walker and Nelson, to testify over its objections and exceptions that Griffith, the day foreman of the crew working in the same entry as appellee and his crew, ordered props during the day and had failed to get them. We do not agree with appellant in this contention. The gist of the action was the alleged violation of a statutory duty to furnish props. Statute 7271, C. & M. Digest, provides that: “It shall be the duty of the owner, agent or operator to send down all such props when required and deliver said props to the place where cars are delivered. ’ ’ The request made by Griffith, as testified to by said witnesses, tends to prove notice to the company that props were required. We think this assignment of error is ruled adversely to appellant by the case of Bauschka v. Western Coal & Mining Co., 95 Ark. 477, 129 S. W. 1095.
The second assignment is that the court erred in refusing to direct a verdict for appellant, at its request. This assignment challenges the sufficiency of the evidence to sustain the* verdict. We have not reviewed the evidence, for, in view of the disposition we make of the case, it becomes unnecessary. We have examined the evidence very carefully, however, and find it sufficient to take the case to the jury. The facts were in dispute as to whether appellant failed to furnish the props when demanded, or within a reasonable time after demanded, and the court submitted the question to the jury, under an instruction that required the jury to find, by a preponderance of the evidence, that the proximate cause of appellee’s injury was the failure of appellant to send down props in accordance with the requirements of the statute.
The only other assignment of error that we consider it necessary to discuss relates to the refusal of the court to give appellant’s requested instructions 2, 5, 6 and 7: After a careful consideration of these instructions, we have reached the conclusion that the court erred in refusing to give requested instruction No. 6, which is as follows: “If you should find from the evidence that the plaintiff ordered props from the defendant through its duly authorized agent whose duty it was to deliver props in the mine, and that after the same was ordered the defendant willfully failed to send same down to plaintiff and deliver same at the place where cars were delivered, after it had had a sufficient length of time to deliver same, and as a direct and proximate result of such willful failure the plaintiff was injured, then the plaintiff would be entitled to recover.” Some such instruction should have been given, in view of the provisions of § 7269, C. & M. Digest. This section reads: “For any injury to persons or property occasioned by willful violation of this act, or willful failure to comply with any of its provisions, a right of action shall accrue to the party injured for any direct damages sustained thereby; provided, should death ensue from any such injury, a cause of action shall survive in favor, first, of the widow and minor children of such deceased; if there be no widow nor minor children then to the father if living; then to the mother; if no mother, then to the brothers and sisters’ and their descendants. ’ ’ This section, as it now stands, down to the proviso, was included in the original miners’ act of April 9, 1893, and was § 12 thereof. In Johnson v. Mammoth Vein Coal Co., 88 Ark. 243, 123 S. W. 1180, 19 L. R. A. N. S. 646, it was held that the right of action did not survive under that section, as the act creating' the statutory duty failed to provide for a survivor of the action. So the Legislature of 1905 added the proviso to the above section. Section 7271, C. & M. Digest, relating to the duty to furnish props, was § 14 of the original miners’ act. As heretofore stated, appellant’s right of action is based solely on the statutory duty to furnish props, and another section in the same statute provides for a willful violation of the act in order to create a right of action based upon’ a violation of statutory duty imposed by said act. In Kansas & Texas Coal, Co. v. Gabsky 70 Ark. 434, 66 S. W. 915, the action was based upon the statutory duty placed upon the owner or operator of a mine not to permit persons under the age of fourteen years to work. therein. The court quoted § 7269, as originally written, and said: ‘ ‘ The direct damages here referred to mean damages for injury occasioned by the fact of being permitted to work in the mines; and, the working in the mines under the prohibited age being shown, and to be willful in the legal sense, it is ordinarily conclusive upon the defendant, for the object of the act was to .prohibit the working of children under fourteen years of age in coal mines at all.” Where a cause of action against a coal company is based upon an alleged violation of'a statutory duty, enacted for the safety of employees, the defenses of contributory negligence and assumed risk are entirely abolished. Sections 7145-7146, C. & M. Digest. The only defense then left to the coal company is to show that the props were not requested or that the failure to furnish, when requested, was not the proximate cause of the injury. While counsel for appellee say that they did not base the cause of action upon § 7271, but that same was based on § 7144, we are of the opinion that the necessary effect of the allegation in the complaint above set forth is to charge negligence based on the failure to perform a statutory duty, to-wit, the failure to furnish props as provided in § 7271. As further indicative of this fact, appellant requested an instruction in the language of the statute, § 7271, which the court gave.
Appellant’s requested instruction No. 7, defining the word “willful,” reads as follows: “The word ‘willful’ as used in these instructions is used not alone in the sense that implies a wrongful intent, but is employed likewise as including a conscious knowing or intentional fail ure to perform or meet a duty imposed by statute.” The case of Roberts, Johnson & Rand Shoe Co. v. Dower, 208 Fed. 270, is cited to support this definition of the word “willful.” This definition is not correct, and the court was right in refusing to give such a definition, but, since the question will arise on another trial, we deem it proper to say that the' court should tell the jury what the word “willful” means, as used in § 7269, C. & M. Digest. In the last case above cited, Judge Sanborn followed the Illinois cases in defining the word “willful.” One of the cases cited is Odin Coal Co. v. Denman, 185 Ill. 413, 57 N. E. 192, 76 Am. St. Rep. 45. In that case the court said, speaking of the omission to perform a statutory duty: “The omission was not through mere inadvertence, but was intentional. There was no evil intent operating to induce the failure, 'but that element is not a necessary ingredient of willfulness, within the correct meaning of the word ‘willful,’ as employed in this statute. As used in criminal and penal statutes, the word ‘willful’ has frequently been interpreted to mean, not merely a voluntary act, but an act committed with evil intent, etc. The statute here involved is not a penal statute.. The recovery awarded is not a penalty in the nature of a fine or a forfeiture, nor is it awarded as a punishment, but is confined, by-the express terms of § 14 of said chapter 93, to ‘the direct damages sustained’ by reason of the omission or failure of which complaint is made. ‘Compensation for injuries inflicted, not punishment, is the ground of recovery.’ ‘Willful’ is a word of familiar use in every branch of law, and, although in some branches of law it may have a special meaning, it generally, as used in courts of law, implies nothing blamable, but merely that the person of whose action or default the expression is used is a free agent, and that what has been done arises from the spontaneous action of his will. It amounts to nothing more than this: ‘that he knows what he is doing, and intends to do what he is doing, and is a free agent. ’ 29 Am. & Eng. Enc. Law 113. An act consciously omitted .is willfully omitted, in the meaning of the word ‘willful,’ as used in these enactments of our Legislature relative to the duty of mine owners. In Coal Co. v. Abbott, 181 Ill. 495, 55 N. E. 131, we said (page 502, 181 111., and page 134, 55 N. E.), ‘Where an owner, operator, or manager so constructs or equips his mine that he knowingly operates it without conforming to the provisions of this act, he willfully disregards its provisions, and willfully disregards the safety of miners employed therein’.”
In the Roberts, Johnson, Rand Shoe Co. case, supra, the court followed the Hlinois decisions under the miners’ act, § 14, being in substance the same as § 7269, C. & M. Digest, and held that a “willful” violation is established by proof of any conscious knowing or intentional failure to comply with the statute, without a showing of actual, wrongful intent. So in our statute the word “willful” means only that the omission to perform the duty imposed by statute was a conscious act of the mind, and was not from mere inadvertence. It means something more than mere negligence. As said by the Illinois court, in the Odin Coal Co. case, supra, “In criminal proceedings, where it is designed to punish the defendant, and in that class of civil cases where a penalty is provided, the amount whereof is fixed 'by statute, as in the nature of punishment, or in those cases where, in addition to damages recoverable as indemnity to the plaintiff for the injury sustained, exemplary or vindictive damages may be assessed as punishment of the defendant, the intent of the defendant becomes material. In all cases in those classes the word ‘willful’ is interpreted to include malice, evil intention, or other wrongful motive. In the case at bar the recovery, is limited to actual or direct damages, and the amount to be recovered is not to be mitigated or aggravated by the presence or absence of the element of fraud, malice, or evil intent. ’ ’
For the error indicated the judgment will be reversed, and the cause remanded for a new trial. It is so ordered. | [
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John A. Fogleman, Justice.
This appeal results from the conviction of Jerry Leon Gibbs for violation of Ark. Stat. Ann. § 41-2729 (Supp. 1973), which prohibits the exhibition or possession of any obscene film. After he was found guilty by the Municipal Court of the City of Hot Springs, he appealed to the Circuit Court of Garland County, where he was again found guilty. He asserts five points for reversal. 'We find reversible error in the denial of appellant’s motion to suppress film seized by a police officer. We will first treat that ground and later discuss other points which would probably arise on a retrial.
Appellant moved to "quash” six Peep-show Machines, and the film contained therein, various photographs, two rolls of 8 mm. film and five paper-bound books. He alleged that this property was taken by police officers acting without a search warrant or other court order for its seizure.
On October 18, 1971, Lieutenant Norman Hall of the Hot Springs Police Department noticed signs on the window at Paris Book Store, 258 Central Avenue, advertising “nude movies.” He and Sergeant Griffith, another police officer, entered the building and went to a rear room, where they found six or seven machines called “Peep Show Machines” set up. Neither officer had a search warrant, and none had been issued. Hall had gone to this place to investigate upon advice of the Mayor. He observed the films displayed by these machines. It was stipulated those which they saw depicted simulated sex acts; no penetration or actual intercourse was shown. The machines were coin-operated and Hall viewed the films as any patron of the establishment would, i.e., by placing the required coins into the machine. The officers were directed to the room where the machines were located by Gibbs when Hall asked him where the nude movies were. After viewing the film, he arrested Gibbs, who was then the only person in the store, and seized the machines and the films in them. There was no adversary hearing as to the obscenity of the film before the seizure or before Gibbs’ trial. The record does not disclose whether the film was shown at his municipal court trial.
A similar question was presented in Bullard v. State, 252 Ark. 806, 481 S.W. 2d 363. We then recognized, upon the authority of Lee Art Theater, Inc. v. Virginia, 392 U.S. 636, 88 S. Ct. 2103, 20 L. Ed. 2d 1313 (1968); A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S. Ct. 1723, 12 L. Ed. 2d 809 (1964); Marcus v. Search Warrants, 367 U.S. 717, 81 S. Ct. 1708, 6 L. Ed. 2d 1127 (1961), the establishment by the Supreme Court of the United States of a rule that seizure of an allegedly obscene film by a police officer without a prior adversary hearing at which the obscene quality of the film is independently determined by a judicial officer is unreasonable. We also pointed out that, in this respect, the court had found a difference between the seizure of ordinary contraband and matter that, if not obscene, is subject to First Amendment protection. In Bullard, we held the court erred in failing to suppress the seizure of film by a police officer who had viewed it because there was no prior adversary hearing. Nothing has changed the rule applied in Bullard. It is true that the United States Supreme Court has stated, in Heller v. New York, 413 U.S. 483, 93 S. Ct. 2789, 37 L. Ed. 2d 745 (1973), and Roaden v. Kentucky, 413 U.S. 496, 93 S. Ct. 2769, 37 L. Ed. 2d 757 (1973), that the right to a prior adversary hearing as to obscenity of material arguably protected by the First Amendment is not absolute in all cases, particularly where there is a seizure pursuant to a warrant for preservation of the material as evidence. It is clear, however, from these cases and those upon which we relied in Bullard, that there must at least be a determination of probable cause by a neutral magistrate before seizure of allegedly obscene material followed by a prompt post-seizure judicial determination of the obscenity issue at the request of an interested party. It also appears that, under these authorities, the seizure of a film must not prevent continued showing of a film.
In Roaden, virtually indistinguishable upon the facts from the case before us, it was held that a seizure such as this is plainly a form of prior restraint and unreasonable under Fourth Amendment standards. The court recognized, however, that there might be exigent circumstances requiring immediate police action to prevent destruction of evidence which would make action without prior judicial evaluation reasonable, but found no such circumstances to exist there. It is not suggested that they existed here.
The state’s contention that there was consent, express or implied, to the search through Gibbs’ directing Hall and Griffin to the room where the nude movies were being shown merits little attention. It overlooks the lack of evidentiary support, because there is nothing to show that Gibbs even suspected that Hall and Griffith were police officers. It also ignores the fact that it is the seizure, not the search, that is attacked as unreasonable. The state’s assertion that the material, since it was actually obscene, was not protected by the First Amendment is likewise without merit. The full impact of the fule declared by decisions of the, United States Supreme Court cited above, and those relied upon in Bullard, quite, clearly applies to material which would be subject to First Amendment protection, except for its obscentiy.
The brief of amicus curiae on this point is based upon an argument that unlawfulness of the search and seizure does not require suppression of the film because the search and seizure did not lead to the discovery of the crime and because the primary right involved was First Amendment right of access rather than Fourth Amendment immunity from search and seizure. A short answer is that such a position is clearly contrary to the result in Roaden, where the reversal was based solely upon the admission of the film in evidence. Cases cited by amicus in support of this argument are pre-Roaden decisions.
Amicus also proposes we should not apply the exclusionary rule because it is under severe attack to which it may well succumb. Presently, it is sufficient to say that this court recognized the desirability of the rule before it was imposed upon state courts by the United States Supreme Court. See Clubb v. State, 230 Ark. 688, 326 S.W. 2d 816; Burke v. State, 235 Ark. 882, 362 S.W. 2d 695; Mann v. City of Heber Springs, 239 Ark. 969; 395 S.W. 2d 557, 559 (Johnson, J., concurring). The propriety of the exclusionary rule, in general, has not yet been subjected to frontal attack in this court. Furthermore, the mere fact that the United States Supreme Court has accepted cases for review in which an assault on the exclusionary rule has been mounted is inadequate basis for a clairvoyant prediction that the rule is in the throes of death. There could be no clearer demonstration of our inability to do so, or of the foolhardiness of indulging in such speculation, than the declination by the court of an invitation to abrogate the rule in two of those cases. See United States v. Robinson, —U.S. — 94 S. Ct. 467 38 L. Ed. 2d 427, and Gustafson v. Florida, —U.S. —, — 94 S. Ct. 488, 38 L. Ed. 2d 456 (both decided December 11, 1973, subsequent to the original submission of this case). Not only was there no consideration of the advisability of the abandonment of the rule in these cases, it is treated as viable in Robinson. It seems that the disposition of both cases would have been simpler if the court had chosen to recede from its exclusionary rule. In another such case, United States v. Calandra, —U.S. —, 94 S. Ct. 613, 38 L. Ed. 2d —, the court on January 8, this year, simply refused to extend the exclusionary rule to grand jury proceedings upon the premises that a grand jury, unrestrained by evidentiary rules governing criminal trials, may even consider incompetent evidence and that one has standing to invoke the rule only when evidence illegally obtained, or the fruits thereof, is offered to incriminate the victim of the search. Although the court there deliberately avoided discussion of the rule’s efficacy in criminal trials, this case, too, could easily have afforded a vehicle for abandonment of the rule. Certainly, this trio, all under submission at the same time, and argued within a three-day period, would have afforded an ideal vehicle for abandonment of the rule, if such a step is imminent.
Reversal on this point, however, does not require dismissal because of the availability of such procedures as are suggested in Bullard.
Appellant’s second point for reversal is a contention that die trial court erred by taking judicial notice of contemporary community standards. We think appellant misconstrues the action of the trial court. His argument is based upon the fact that there was no evidence in the record as to these standards, except for the testimony of a police officer who based his opinion upon his own personal feelings and upon the fact that people in the community "were hot about the bookstores” at the time. The circuit judge, who sat as trier of the facts, after waiver of jury trial, in his final opinion, stated his familiarity with community standards in 41 of the 50 states and found the film to go beyond contemporary community standards of "this community, this state and this country.” Among other statements of the trial judge in delivering his opinion are these:
It is inconceivable that the community standards of any average community in this or any other state could approve or condone the activities of the two people shown in this film. * * * A person would have to be deaf, dumb and blind not to understand what this film was about and why people might observe it. The public is neither deaf, dumb nor blind. This film appeals to the animal sex desire and instinct of people and obviously is so intended.
We do not conceive of this procedure as involving judicial notice at all. It must be remembered that the cir cuit judge sat as trier of the facts, a jury trial having been waived. As such, he was required to determine: (a) whether the average person applying contemporary standards would find that the material exhibited by appellant, taken as a whole, appealed to the prurient interest; (b)’whether the material depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973). In making that' determination, the state law to be applied prohibited exhibition of film, the dominant theme of which, when taken as a whole, to the average person applying contemporary community standards, appeals to prurient interest. Ark. Stat. Ann. §§ 41-2729 — 2731 (Supp. 1971).
In making this determination the judge had the stipulation of the parties, the testimony of the police officer and the films themselves, which he viewed. There was no indication in Miller that testimony, either expert or non-expert, was necessary to the fact-finder’s determination of the average person’s concept of community standards. It was suggested there, however, that reliance must be placed on the jury system to resolve the sensitive questions arising. The court unequivocally held that jury evaluation of materials with reference to community standards adequately served the essential purpose of assuring that, in applying community standards, material be judged by its impact on the average person and not upon either a particularly sensitive or totally insensitive person. In Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973), there was a jury-waived trial. The films were exhibited to the trial court. No other evidence was presented from which the critical fact determinations could have been made. It was there held that the films themselves are the best evidence of what they represent and that, when they are placed in evidence, no “expert” testimony is necessary to establish that they were obscene, when they are not directed at such a bizarre, deviant group that the experience of the trier-of-fact would be plainly inadequate to judge whether the material appeals to the prurient interest.
Of course, the application of community standards is a part of the fact-fincLing process in making a determination of obscenity. While Slaton was a civil proceeding to restrain exhibition of films as obscene, the authorities there dted in support of this principle are all criminal cases. The principles are applied in Kaplan v. California, 413 U.S. 115, 93 S. Ct. 2680, 37 L. Ed. 2d 492 (1973), which was a criminal prosecution. The appellate court in California had held that the circumstances surrounding the sale of the book in question there and the nature of the book itself constituted sufficient evidence to sustain Kap-lan’s conviction. The United States Supreme Court said that in cases decided since Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957), it had regarded the questioned materials to be sufficient in themselves for determination of the question whether they are obscene. That court then specifically held that there was no need for “expert” testimony or any other ancillary evidence of obscenity, once the allegedly obscene materials themselves are placed in evidence. The trial judge, as the fact-finder, did not take judicial notice of community standards, but applied them as a fact-finder, just as a jury could do.
What we have said disposes of appellant’s contention that the evidence was insufficient to show either community standards or appeal to prurient interest. The only remaining question is the constitutionality of the statute under which Gibbs was convicted. Appellant contends that, in the light of Miller v. California, supra, Ark. Stat. Ann. §§ 41-2729 — 2731, being Act 411 of 1967, are unconstitutionally overbroad, vague and indefinite. In addition to the guidelines stated in Miller, he relies upon the following language from the opinion:
We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited. See Interstate Circuit, Inc. v. Dallas, supra, 390 U.S., at 682—685, 88 S. Ct., at 1302—1305 (1968). As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.
Appellant contends that because of this language and the words “sexual conduct specifically defined by the applicable state law,” the statute must fall because it neither mentions nor defines sexual conduct. He reads Miller as requiring that the sexual conduct which is obscene be spelled out in the statute itself, wholly overlooking the provision that such conduct may be defined by authoritative construction. In Miller, the court said that no one could be prosecuted for exposure of obscene materials unless the materials depict or describe patently offensive “hard core” sexual conduct specifically defined by the regulating state law, as written or construed.
On this point, amicus curiae notes that the statute in question meets Roth standards, the only constitutional guidelines for the state legislature when the statute was passed. In Miller, the court specifically emphasized that there was no necessity for state legislatures to pass new statutes because existing statutes may be determined to be constitutionally adequate, when considered as theretofore or thereafter construed. In United States v. Twelve 200-Foot Reels, 413 U.S. 123, 93 S. Ct. 2665, 37 L. Ed. 2d 500 (1973), the court in reviewing a United States District Court holding that 19 U.S.C. § 1305 (a) was unconstitutional on its face, recognized its duty to authoritatively construe federal statutes where a serious doubt of constitutionality is raised and a construction of the statute by which the question may be avoided is fairly possible. The court also recognized that it must leave to state courts the construction of state legislation in this respect but emphatically announced its intention, where there is a serious doubt as to the vagueness of such words as “obscene,” to construe those words as limiting regulated material to patently offensive representations or descriptions of that specific “hard core” sexual conduct given as examples in Miller, all the while conceding that Congress might define other specific “hard core” conduct. The examples are thus stated in Miller:
(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
(b) Patently offensive representation or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.
Obviously, these examples fall within the common understanding of the meaning of the word. See State v. J-R Distributors, Inc., 82 Wash. 2d 584, 512 P. 2d 1049 (1973).
It is quite clear in Miller that a definition may be given by the courts as well as by the legislature insofar as federal constitutional standards are concerned. See also, People v. Enskat, 33 Cal. App. 3d 900, 109 Cal. Rptr. 433 (1973). We also note that in Roth, the United States Supreme Court recognized that such terms as “obscene” are not precise, but that lack of precision is not itself offensive to the requirements of due process if the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. Such words, when applied according to the proper standard for judging obscenity were said to give adequate warning of the conduct proscribed and mark boundaries sufficiently distinct for judges and juries fairly to administer the law. The court added that the fact that there might be marginal cases in which it is difficult to determine the side of the line upon which a particular fact situation might fall is not sufficient reason to hold the language too ambiguous to define a criminal offense. The statutes upheld in Roth as against claims of unconstitutional vagueness were even less specific in defining obscene material than is the statute questioned here. See also, State v. J-R Distributors, Inc., 82 Wash. 2d 584, 512 P. 2d 1049 (1973).
It seems to us that the Florida Supreme Court overextended the invitation for judicial construction by actually changing definitions it had used in amplification of the definition of the word “obscene” in a statute using words very similar to the language of ours. That court found no difficulty in changing its construction of the statute to fit Miller standards, holding that the language of the statute made it susceptible to judicial construction compatible with Miller standards and definitions. See Papp v. State, 281 So. 2d 600 (Fla. App. 1973). The Florida court recognized its own definitions were being changed by holding that the new definition could only have prospective effect and that Papp’s conviction must be reversed.
We do not have the apparent obstacles to such a construction that the Florida court sought to avoid. We have not construed the definition of obscene material in the statute applied in this case. As amicus points out, our decision in Bullard v. State, 252 Ark. 806, 481 S.W. 2d 363, wherein we held the definition of the word “obscene” in Ark. Stat. Ann. § 41-2730 sufficiently fair and comprehensive to meet the test of constitutionality, left us with sufficient flexibility for the application of Miller standards to our statute. We held in Bullard the absence of a requirement that material be “utterly without redeeming social value” before it could be obscene under Ark. Stat. Ann. § 41-2729, did not render the statute constitutionally deficient, because it is not essential that a statute incorporate every constitutional nuance. Also, we are dedicated to the proposition that we must give an act a construction that would meet constitutional tests, if it is reasonably possible to do so. Stone v. State, 254 Ark. 1011, 498 S.W. 2d 634.
Since we have not construed the act, except in Bul-lard, we follow the pattern established by the United States Supreme Court and followed in Papp v. State, supra, and hold that obscene film regulated by Ark. Stat. Ann. § 41-2729 — 2731 is limited to that which constitutes (a) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated and (b) patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals. See also, State v. J-R Distributors, Inc., supra.
Appellant’s contention that the statute falls upon the authority of Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 542 (1969), must likewise be rejected. He argues that the failure of the legislature to specifically except possession of obscene film by one in his own home renders the act unconstitutional. An easy answer to this argument is that appellant has no standing to raise it. May v. State, 254 Ark. 194, 492 S.W. 2d 888. But, in any event, this argument was rejected in Paris Adult Theatre I v. Slaton, supra.
The judgment is reversed and the cause remanded for further proceedings pursuant to Bullard.
At that time we thought that this requirement constituted one of the criteria for testing the constitutionality of the statute under Memoirs v. Massachusetts, 3883 U.S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1 (1966). The application of the principle by which we found our act constitutional was indicated in Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957). | [
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Ed. F. McFaddin, Justice.
Appellants are tire widow and minor children of J. D. Ledbetter wbo was killed on October 22,1948, while employed as a driver for the City Cab Company of Arkadelphia, Arkansas. Claim was duly filed by appellants with the Arkansas Workmen’s Compensation Commission, and resulted in a finding by the Commission that appellee, Tommie Adams, was the owner of the City Cab Company, the employer of Led-better, and therefore liable for compensation payments. From such award appellee, Adams, appealed to the Circuit Court which reversed the Commission’s finding and nullified the award. Appellants now seek reversal of the Circuit Court judgment and reinstatement of the Commission’s award.
I. Absence of Motion for New Trial. Appellee urges that the appeal be dismissed, since no motion for new trial was filed in the Circuit Court; but we bold that no such motion was necessary, because the Circuit Court tried the case entirely on the record certified by the Workmen’s Compensation Commission. The recent case of Springdale Monument Company v. Allen, 215 Ark. 788, 223 S. W. 2d 802, settles the point. In that case we said:
“As indicated, where, as in the present case, there was no new evidence or other proceedings in the Circuit Court, and the trial court reviewed the complete record certified to it by the Workmen’s Compensation Commission, we bold a motion for a new trial was not necessary. ’ ’
II. Liability of Appellee. This was the strongly contested issue before the Commission and Circuit Court: it being argued (a) that appellee was not the employer of five persons; and (b) that appellee was not the employer of Ledbetter. As to appellee not being the employer of five or more persons, little need be said. The witnesses listed the names of at least five employees if Ledbetter be considered one; so the employment of Ledbetter by appellee is the determinative question. The Workmen’s Compensation Commission found that appellee was the employer of Ledbetter and liable for tbe award. Tlie Circuit Court — on tbe same evidence — found that Ledbetter was not employed by appellee, but was employed by the witness, Earl Pike.
Tbe undisputed evidence shows that five taxicabs were registered, licensed, and insured in tbe name of appellee, Adams; that these were driven by various persons ; and that Ledbetter was driving one of these taxicabs at the time be was killed in a traffic collision. But Adams claimed that be bad sold this particular cab and two others to Earl Pike (bis kinsman) in January, 1948, (before Ledbetter was killed in October) and that Ledbet-ter was an employee of Pike. Adams was substantiated by Pike who claimed Ledbetter as bis employee. Of course, if there were only five taxi drivers, and if three were employed by Pike and two by Adams, then neither Adams nor Pike would come within tbe purview of tbe Workmen’s Compensation Law which is limited to employers of five or more persons.
The evidence disclosed that Pike and Adams registered, in Adams’ name, the cabs which Pike now claims to own; that neither the City,- the State, nor the public liability insurance carrier was ever notified that Adams had sold any of the cabs to Pike; and that Pike filed, in Adams ’ name, claims with the public liability carrier. On the strength of the evidence herein detailed, and other of like nature, the Commission made these findings:
“We are convinced from the evidence that the contention of Tommie D. Adams, that he only operates two cabs under the name of City Cab Company, and the contention of Earl Pike that three of the cabs operating under the name of City Cab Company belong to him and that there is no common ownership of all five cabs, or partnership ownership of all five cabs, is simply a subterfuge engaged in to defeat the purpose of the Arkansas Workmen’s Compensation Act.
“We are convinced from the evidence that Tommie D. Adams, doing business as the City Cab Company, owns all the cabs and that at the time of the death of Jeff D. Ledbetter on October 22, 1948, be bad five or more employees, one of which was Jeff D. Ledbetter.
“The registration of all the cabs for licenses in the name of Adams and the insurance coverage on all the cabs in the name of Adams is snob a strong circumstance, that when taken with all the other evidence, convinces us that Tommie D. Adams is the actual owner of all the cabs operating under the name of City Cab Company, and that be bad a sufficient number of employees to bring him within the provisions of the Arkansas Workmen’s Compensation Act.”
We bold that there was sufficient competent evidence from which the Commission could have found — as it did —that Adams was (a) the employer of five or more persons ; (b) the real owner of the entire taxicab business of the City Cab Company; and (c) the employer of Ledbetter. In Wren v. D. F. Jones Construction Co., 210 Ark. 40, 194 S. W. 2d 896, we reviewed cases showing the right of the Workmen’s Compensation Commission to draw conclusions and inferences from the evidence, and said:
“Under our Workmen’s Compensation Law the Commission acts as a trier of the facts — i. e., a jury — in drawing the inferences and reaching the conclusions from the facts. We have repeatedly held that the finding of the Commission is entitled to the same force and effect as a jury verdict. ’ ’
Since there was substantial evidence to support the inferences drawn and the conclusions reached by the Workmen’s Compensation Commission, it follows that the Circuit Court was in error in reversing the factual findings of the Commission. See Lundell v. Walker, 204 Ark. 871, 165 S. W. 2d 600; J. L. Williams & Sons v. Smith, 205 Ark. 604, 170 S. W. 2d 82; and Simmons National Bank v. Brown, 210 Ark. 311, 195 S. W. 2d 539.
If the transfer from Adams to Pike had been in good faith, nevertheless the authorities hold (1) that the original employer remains liable under the Workmen’s Com pensation Act, until there has been a reasonable time, or course of events, for knowledge of change of employer to be brought home to the employee; and (2) that the relationship of employer and employee is presumed to continue for a reasonable time after a sale of the business made without the knowledge of the employee. See Palmer v. Main, 209 Ky. 226, 272 S. W. 736; Buchanan Min. Co. v. Henson, 228 Ky. 367,15 S. W. 2d 291; Schneider’s Workmen’s Compensation Text, Perm. Ed., § 788; Horowitz on “Workmen’s Compensation,” p. 228, et seq.; and also 71 C. J. 397. So even in the absence of a finding as to subterfuge, appellee, Adams, could have been held liable within the purview of the authorities just cited.
The judgment of the Circuit Court is reversed and the cause remanded, with directions to the Circuit Court to certify to the Workmen’s Compensation Commission that its award is reinstated and affirmed.
See Sec. 81-1302, Ark. Stats. 1947; also 1949 Cumulative Pocket Supplement to that section, and containing Initiated Act No. 4 of 1948.
See Footnote 1 (supra). | [
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Robert H. Dudley, Justice.
Barbara Keeling, the plaintiff, owned one lot in block 2 and two lots in block 3 of the original Town of Cotton Plant. Her home was situated on the lots in block 3, and some type of structure was on the lot in block 2. On May 27, 1988, the bank loaned $12,000.00 to the plaintiff. The plaintiff executed a $12,000.00 installment promissory note to the bank and a mortgage as security for the note. The bank also required the plaintiff to insure the property for $25,000.00, so she obtained a policy of insurance on the property from the Columbia Mutual Casualty Insurance Company. The policy, under the loss payable clause, listed her as the owner and the bank as the mortgagee. Subsequently, the plaintiff failed to make the installment payments, and the bank filed suit for foreclosure. On December 13, 1988, the chancery court entered a judgment against the plaintiff in the amount of $12,297.42 for principal and court costs, plus $754.39 interest to that date, $1,276.61 attorney’s fees, $252.00 abstracting fees, and a $40.00 overdraft charge, or a total of $14,602.42 with future interest to accrue at the rate of $3.71 per day until satisfied. The chancery court ordered that if the foregoing amount was not paid the property was to be sold at judicial sale. A judicial sale, or foreclosure, was held on January 6,1989. The bank purchased the property with a bid of $6,000.00. By that time an additional twenty-five days interest had accrued, making additional interest of $92.75 due. Thus, the total judgment debt was $14,695.75, and the bank bid of $6,000.00 left a deficiency of $8,695.17.
A little over two weeks later, on January 24, 1989, the plaintiffs home was destroyed by fire.
On February 1, 1989, the bank took a deficiency judgment against the plaintiff. On February 28,1989, the lots in both blocks were conveyed by commissioner’s deed to the bank. The bank did not give notice to the insurance company of the change in ownership.
On July 21,1989, the defendant bank sold the lots in block 3 to Dorothy Clark. Revenue stamps in the amount of $ 13.20 were affixed to the deed, indicating a sale price of $6,000.00. The conveyance was by warranty deed executed by the president of the bank, Eddie Melson, and the secretary of the bank, Chris Rainbolt. After this conveyance, the defendant bank held title only to the lot in block 2.
The insurance company questioned the parties’ insurable interests but ultimately reached settlement agreements, first with the defendant bank and then with the plaintiff. In the first phase of its settlements, the insurance company paid the bank $ 12,682.00, and the bank executed a release by which it agreed to assign its deficiency judgment to the insurance company, hold title “in trust” to all of the lots, even though it had already conveyed away the lots in block 3, and “to convey it to Columbia or its designee upon request.” In the second phase of its settlements, the insurance company reached an agreement with the plaintiff. It agreed to pay her $800.00, have the bank convey all of her property back to her, and release her from the judgment that had ■ been assigned to it. In executing the settlements, the insurance company requested that the bank convey all of the property back to the plaintiff. The bank executed and delivered to plaintiff a quitclaim deed to the tracts in both blocks. The quitclaim deed was signed by the president of the bank, Eddie Melson, and the secretary of the bank, Chris Rainbolt. As would be expected, the plaintiff soon discovered that Dorothy Clark claimed title to the lots in block 3, and had a prior deed from the bank conveying the lots in block 3 to her.
The plaintiff and the insurance company thought that the defendant bank might have made a mistake in twice conveying the same property, for, after all, the bank had collected a total of $18,682.00 from Dorothy Clark and the insurance company. That was well in excess of the amount the plaintiff owed, and the insurance company asked the bank to correct the situation by repurchasing the property from Dorothy Clark, or refunding part of the plaintiff’s money. The bank refused to right the wrong. It left the plaintiff without title to the lots that she had re-purchased in block 3.
Plaintiff then filed this suit against the bank in circuit court. She alleged most of the above-stated facts and concluded that the bank had breached the contract of settlement and “acted knowingly, wilfully, wantonly and in bad faith” and that its conduct was “outrageous.” At the bench trial of this case, the plaintiff testified about her mental anguish and suffering, which occurred as a result of the bank’s actions. At the conclusion of the trial, the trial court found the bank liable, apparently on the theory of fraud or deceit, awarded plaintiff $5,000.00 for her pain and suffering, and awarded her $10,000.00 in punitive damages. The trial court did not state the theory on which the damages were awarded, and the bank did not inquire into the issue, nor did it seek to have the trial court rule on the matter. It was up to the bank to obtain a ruling giving the basis of the trial court’s ruling. See Carpetland of N. W. Ark., Inc. v. Howard, 304 Ark. 420, 803 S.W.2d 512 (1991). The trial court’s comments indicate that it dismissed the cause of action for the alleged breach of contract because the plaintiff failed to prove the fair market value of the lots that she did not get, and that the verdict was based on the tort of fraud. One comment illustrating that the trial court apparently awarded the damages based on the theory of fraud occurred when the bank’s attorney objected to evidence of the plaintiffs pain and suffering. The bank’s attorney stated that pain and suffering were not relevant to a breach of contract action. The plaintiffs attorney responded that “our complaint was founded on fraud and the outrageous conduct of the bank and we alleged that mental anguish imposed upon her.” The bank’s attorney did not respond, and the trial court then allowed the evidence of mental anguish without further objection.
We do not address the bank’s first two assignments of error because both of them concern asserted errors of the trial court in ruling on the breach of contract action. Again, the trial court did not award any damages based upon breach of contract.
The bank’s third assignment of error contains arguments that deal with both the breach of contract action and the tort action. Again, we do not address that part of the argument going to breach of contract. We address only that part of the argument that concerns the tort action. The bank argues that the terms of the contract between the bank and the insurance company release it from any liability for its fraud or deceit. The bank cites no authority holding that an agreement is effective to exonerate one from liability for fraudulent conduct inducing another to enter into a contract, and we know of none. In Farmers Bank v. Perry, 301 Ark. 547, 550, 787 S.W.2d 645, 646 (1990), we stated, “[T]his court has never upheld an agreement purporting to release a party from liability from his own negligence before it occurred.” The reason for disfavoring such clauses is based upon the public policy of encouraging the exercise of reasonable care. Id. While it is not impossible for such an agreement to be enforceable, the clause must clearly set out the negligence for which liability is to be avoided. Id. See also, Allen v. Overturf, 234 Ark. 612, 353 S.W.2d 343 (1962). In summary, the trial court correctly ruled that the agreement between the bank and the insurance company did not release the bank from liability for its fraud or deceit, and that ruling was correct.
The bank next argues that the trial court erred in denying its motion for a directed verdict on the issue of compensatory damages. While the bank never really moved for a directed verdict on any basis, and certainly did not do so on the basis of impropriety of compensatory damages in a fraud action, it does not matter. This was a bench trial, and it is not necessary to move for a directed verdict at a bench trial in order to appeal on the basis of insufficiency of the evidence. Bass v. Koller, 276 Ark. 93, 632 S.W.2d 410 (1982). Even so, the bank does not argue in this appeal that the plaintiff failed to prove the elements of deceit, and we do not consider that issue. The bank argues that the trial court erred in awarding compensatory damages because they were not proper and the award was against the weight of the evidence. The bank offers neither a citation nor convincing argument for its contention that damages for mental anguish are not proper in an action for the intentional tort of fraud or deceit. As we have said many times, when the appellant does not cite any authority, nor make a convincing argument, and where it is not apparent without further research that the point is well taken, we will affirm. We will not do the appellant’s research for him. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). The bank also argues that the award of damages for pain and suffering was against the weight of the evidence. The resolution of conflicts in the testimony is not within the province of an appellate court; it is fundamentally a function of the finder of fact, and a finding is usually conclusive, especially where credibility of witnesses is involved. Blisset v. Frisby, 249 Ark. 235, 458 S.W.2d 735 (1970). Here, we cannot say the award was clearly erroneous.
The bank’s final argument involves the award of punitive damages and is two-fold. The first part is that the trial court erred in granting compensatory damages, and, since compensatory damages are a prerequisite for punitive damages, the trial court erred in awarding punitive damages. Since we have affirmed the award of compensatory damages for the reasons set out in the last paragraph, the predicate for the argument about punitive damages fails. Thus, we dismiss the argument. The second part of the argument is that there was not sufficient evidence for the trial court to award punitive damages. Again, the bank did not raise the issue below. Even so, we must consider the alleged error in the assessment of damages. Bass v. Roller, 276 Ark. 93, 632 S.W.2d 410 (1982). The argument is without merit because if there is substantial evidence to show deliberate misrepresentation, fraud, or deceit, the issue of punitive damages may be submitted to the jury. Stein v. Lucas, 308 Ark. 74, 823 S.W.2d 832 (1992). Here, there was substantial evidence of deliberate misrepresentation or deceit.
In addition to the direct appeal by the bank, the plaintiff has filed a cross-appeal. At the trial, the trial court ruled that the plaintiff was not entitled to any damages for the breach of contract because she did not offer any proof of the fair market value of the lots that she re-purchased from the bank but which had already been sold to Dorothy Clark. The plaintiff argues that the trial court erred in refusing to recognize the revenue stamps affixed to the deed as fixing the fair market value of the lots. The plaintiff cites no authority for her argument, and we know of none. Even if the revenue stamps did represent the actual price paid by Dorothy Cook, the trial court did not know whether that amount was the true market value. The record does not reflect any details of her transaction with the bank, whether it was an arms-length transaction, or whether she paid more or less than the market value. Thus, the revenue stamps, standing alone, and on just one sale, cannot be said to be substantial evidence of the true market value of the lots. See Tuthill v. Arkansas County Equalization Bd., 303 Ark. 387, 797 S.W.2d 439 (1990). Accordingly, we also affirm on cross-appeal.
Affirmed on direct appeal and on cross-appeal. | [
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Jack Holt, Jr., Justice.
This is an appeal by the State from the Polk County Circuit Court’s dismissal of a charge against Mr. Edward Mazur for theft of property, a class B felony, on the grounds that the three year statute of limitations, pursuant to Ark. Code Ann. § 5-1-109(b)(2) had not run and that even if the statute of limitations had run, the State was nevertheless entitled to commence prosecution under Ark. Code Ann. § 5-l-109(c)(l) (Supp. 1991) within one year after the offense should have been discovered by the victim because the offense allegedly involved “breach of a fiduciary obligation.” The State contends that an error was committed by the trial court which prejudices the State, and therefore, review is required for the “correct and uniform administration of the criminal law.” Ark.R.Crim.P. Rule 36.10(b-c). We disagree and dismiss its appeal.
This case arose due to the alleged theft by appellee, Mr. Edward Mazur, of an approximately $150,000 coin collection owned by his brother and nephew. Father and son, Mssrs. Stephen Mazur, Sr. and Jr., entrusted the collection to appellee in September 1982 for safekeeping.
Over the next nine years, Stephen, Sr. and Jr. made numerous attempts to retrieve the coins from Edward but to no avail. In early 1991 Edward admitted he had used at least thirty percent of the coins to finance an investigation into his son’s death. A bench warrant was issued for appellee in December 1991, and he was charged in January 1992. After an evidentiary hearing on appellee’s motion to dismiss due to the lapse of the statute of limitations, the circuit court dismissed the information stating that: “Pursuant to the provisions of Ark. Code Ann. 5-1-109(2), a prosecution for a Class B Felony must be commenced within three years after its commission. This prosecution is barred by the operation of the statute of limitations.” On appeal, the State submits that the circuit court erred in interpreting the statute of limitations provided in Ark. Code Ann. § 5-1 -109 (b) (2) and (c)(1) (Supp. 1991).
The State claims this court has jurisdiction over this matter as a question of “correct and uniform administration of criminal law.” As a general rule, the State has no right to appeal except as conferred by constitution or rule of criminal procedure. State v. Tipton, 300 Ark. 211, 779 S.W.2d 138 (1989). Ark.R.Crim.P. Rule 36.10(b-c) authorizes the State to appeal following a felony prosecution if “the attorney general, on inspecting the trial record, is satisfied that error has been committed to the prejudice of the state, and the correct and uniform administration of the criminal law requires review by the Supreme Court.”
Clearly, the State’s argument that the trial court erred in dismissing the information against Mr. Mazur because the statute of limitations had not run does not involve the correct and uniform administration of criminal law. After an evidentiary hearing, the trial court determined that the statute of limitations had run on this felony. “Where the trial court acts within its discretion after making an evidentiary decision based on the facts on hand or even a mixed question of law and fact, this court will not accept an appeal under Ark.R.Crim.P. 36.10.” State v. Edwards, 310 Ark. 516, 838 S.W.2d 356 (1992). Here, the State questions the trial court’s application of a statute to the facts at hand and not its interpretation, so the appeal must be dismissed.
Appeal dismissed. | [
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Tom Glaze, Justice.
This is an appeal from the trial judge’s finding the appellant liable for appellee’s damages which resulted from an automobile accident. The accident occurred when the appellant, who was answering an emergency call in an authorized emergency vehicle displaying the proper lights and siren, proceeded into the intersection on a red light and collided with the appellee’s car already in the intersection. Appellant contends that the trial court’s ruling is in error, because the judge misapplied the emergency vehicle statutes and found that the appellant was negligent as a matter of law for proceeding into the intersection on a red light. The appellee argues before this court that the appellant’s abstract is defective under Ark. Sup. Ct. R. 9, because the appellant failed to abstract the notice of appeal and lower court’s judgment.
This court has frequently noted that the basic pleadings and the judgment or decree appealed from are ordinarily essential constituents of the abstract. See, e.g., Jolly v. Hartje, 294 Ark. 16, 740 S.W.2d 143 (1987); see also Smith, Arkansas Appellate Practice: Abstracting the Record, 31 Ark. L. Rev. 360, 362 (1977). In addition, we have stated that all relevant orders entered by the trial judge are to be abstracted. City of Mariana v. Municipal League, 291 Ark. 74, 722 S.W.2d 578 (1987). Since there is only one transcript, it would be impractical to require all the members of the court to examine it to determine the contents of the lower court’s judgment. See Zini v. Perciful, 289 Ark. 343, 711 S.W.2d 477 (1986).
Because the appellant failed to abstract the judgment and made no motion to supplement the abstract to include it, we are, in accordance with the above authority and precedent, required to affirm.
See In re Matter of Revision of the Rules of the Supreme Court and Court of Appeals, 296 Ark. 581, 757 S.W.2d LVIII (1988), which proposes adoption of new appellate procedure that may serve, if adopted, to eliminate most problems, like the one here, that results from abstracting the record. | [
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Griffin Smith, Chief Justice.
A jury found that the defendants, now appellees, were entitled to possession of land touching nearly an acre upon which a store building stood. After suit was filed O. E. Willis sold the store property to M. K. Hodges and his wife, who were brought into the litigation. A. B. Adkins and Lillian N. Asking were owners of property north and south of Willis and contiguous to him. Adkins testified that the line to which he claimed was determined by a fence that had been in place for more than half a century. In 1927 appellants acquired the Newton tract, from which the store property was carved. Lands owned by appellants surround the area contended for by appellees, but the controversy relates to north and south boundaries only.
In its verdict the jury determined that appellees were entitled to the disputed strips “on west and south lines between the original fence boundary line and the present fence as constructed by the defendants.”
The “present fence” was built by Willis following a survey by J. M. Tate, County Surveyor. It is conceded tliat deeds under wliicb appellees claim described the property if tlie point of beginning in making the survey was correctly determined by Tate. The start would be “At the Hagarville line in the middle of the public road, thence east with the road 187 feet, south 194 feet, west 187 feet, and north 194 feet,” etc. Appellants could not show a record title that included any of this lot, but they insist that the old fence had long been regarded as the boundary. Adkins testified that in cultivating his own land he had gone to the fence, or had used the disputed area for pasturing his stock. One witness testified that “Long ago [the present east-west highway through Hagarville] was only a wagon road, five or six feet wide.” This witness thought the description “Hagar-ville line in the middle of the public road” meant the center of the ancient thoroughfare.
Several diagrams were considered, with testimony by witnesses who used the drawings in illustrating to judge and jury. An example of the jury’s better understanding of what witnesses were saying — better as contrasted with conclusions we must draw from the record— is reflected in the cross-examination of Mr. Adkins. In explaining a plat and discussing a stone marker he was accused of having moved, the following questions were asked and answers given: Question: “Is this the line?” A. “It is 352 feet from here.” Q. ‘‘That is where the marker stone is?” A. “Tes.” Q. “Here is the 33/100 acres?” A. “Commence here and come up to here.” Q. “How wide is this?” A. “Road is what the deed says.” Q. “How do you know that is it?” A. “There just [isn’t] any land for it to be except that, that went back to the State and I bought it.” Q. “This represents a line here between you and Mr. Willis, doesn’t it?” A. “Yes.” Q. “And this is a block of land excepted out of this deed?” A. “Yes, sir.” Q. “How do you jump across over here and get this strip of land?” A. “That is just a mistake about lapover and taking my land. This is the way it has always been.”
Other witnesses testified with equal certainty in so far as distances, directions, area, points of beginning and ending, and such matters were of importance — facts the witnesses were seemingly familiar with, and as to which with chart aids they were able to effectively clarify transactions and make certain “this,” “that” and “here,”— references more or less meaningless to ns. The problem presented by unfinished reference testimony was emphasized in Smith v. Magnet Gove Barium Corp., 212 Ark. 491, 206 S. W. 2d 442.
After the Adkins-Willis controversy arose Willis engaged J. M. Tate to make the survey. Tate testified that he went with Adkins to the corner of Section Fifteen nearest the land in question — a point agreed to by Adkins. Adkins [said Tate] had in advance of the survey consented to abide the result. Tate, from Section Fifteen, established to his own satisfaction where the Willis lot should start, but Adkins then protested. It was Adkins ’ belief that the surveyor ought to have gone to a rock farther east. This, inferentially, was the stone Adkins was alleged to have moved. Adkins ’ explanation was that a road grader “undercut” the so-called stone marker, shifting it to such an extent that replacement was necessary. In making this change Adkins undertook to put the rock as near the original position as practicable.
Appellees insist that Adkins is concluded by his consent to respect the result of the survey; but, if they are wrong in this, then testimony by Adkins that he did not intend to hold “more land than was [rightfully] his,” or to claim in excess of his deed, contradicted the adverse possession tenure, thus presenting a question for the jury regarding the nature of Adkins’ occupancy. It is true that on redirect examination Adkins modified his language by saying he thought the fence was the boundary and that his intent was to claim to it. But even so, the jury had a right to weigh the characteristics of the claim — to determine whether open, notorious, hostile, or friendly. Martin v. Winston, 209 Ark. 464, 190 S. W. 2d 962.
Appellants correctly say that if title' by adverse possession had ripened before Willis and Adkins agreed (as appellees insist) that the controversy should he referable to Tate’s survey, the oral promise by Adkins to abide the result would not be binding. DeWeese v. Logue, 208 Ark. 79, 185 S. W. 2d 85. But in the case at bar there was something more than the so-called agreement. The nature of Adkins’ possession, his intent or lack of intent to take more land than his deed called for, and his oral testimony with chart indications the jury could consider — these were factual matters resolved against the plaintiffs, and we cannot say that substantial testimony in support of the result was lacking. The instructions (not complained of) have not been abstracted.
Affirmed.
Similarity of names would indicate a typographical error, but not so. Adkins owned a life estate in property contiguous to the land contended for here, and Lillian N. Aslans owns the fee in remainder. | [
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Leflar, J.
Appellee R. T. Phillips was for some time a real estate broker doing business at Jasper in Newton county, Arkansas. On November 3, 1948, his license to engage in that business was revoked by the Real Estate Commission under authority of Ark. Stats., §§ 71-1301 to 71-1311, inclusive, an enactment held valid by this Court in State v. Hurlock, 185 Ark. 807, 49 S. W. 2d 611. The validity of this revocation is not challenged. The Secretary of the Real Estate Commission brought the present suit under § 71-1311 of the cited statute, alleging that Phillips had continued to act as a real estate broker after hise license was revoked, and praying that he be enjoined from doing so further. Phillips denied engaging in the business after his license was revoked, though admitting that he had bought and sold his own real estate and maintained a small office for that purpose. After a hearing the Chancellor concluded that the preponderance of the evidence failed to sustain the allegations, and denied the injunction. The plaintiff appeals.
The evidence given by the plaintiff was largely that of an undercover agent, James K. Daugherty, who was sent to Jasper by the Secretary of the Commission to secure evidence against Phillips. This Daugherty endeavored to do by misrepresenting himself to Phillips as a prospective farm' buyer from St. Louis. He testified that Phillips showed him three or four different places, one of which was apparently owned by Phillips himself. Daugherty stated that he made contracts, through Phillips, to buy two of the places, from owners named J. T. Smith and Allen Lamden, and made a $25.00 down payment to Smith on his place and a $25.00 down payment to Phillips on the Lamden place. Both payments were admittedly made by Daugherty. But Phillips testified that, after showing Daugherty his own place, he took Daugherty to see Smith and Lamden, whose farms were nearby, merely because Daugherty asked'him to, and not with any idea of acting as a real estate broker to sell the farms.
As to tlie transaction with Smith, Daugherty himself testified that “I started to-hand it (the $25.00) to Mr. Phillips. He said no, hand it to Mr. Smith; he had nothing to do with that.” Daugherty’s receipt for the payment was signed by Smith. Other testimony indicated that negotiations were directly between Daugherty and Smith.
Daugherty further testified that, when they returned to town after closing the Smith deal, “I didn’t know whether it would hold up in court,” so he went back to see Phillips again and gave him $25.00 earnest money on the Lamden place. Phillips gave Daugherty a receipt for this. He did not turn the money over to Lamden. His explanation was that he took the money primarily as a convenience to Daugherty, who said he did not want to make another trip out to Lamden’s place, and that the money was not turned over to Lamden because he (Phillips) on second thought feared he might be acting as a real estate agent if he did pay it over. Daugherty of course did not complete either purchase.
The only other testimony as to real estate transactions engaged in by Phillips after his license was revoked related to land apparently owned either by himself or his wife. It was proved that his old real estate sign remained beside his office for some time after the license was revoked, but he explained that he didn’t own the sign, that it belonged to the Strout Real Estate Agency, for whom he formerly worked and whose name was on the sign, and that he didn’t take it away because it didn’t belong to him. The plaintiff also sought to show that Phillips used his real estate business stationery for correspondence after his license was revoked, but the only evidence offered was a letter 'that had nothing to do with real estate. Phillips ’ explanation was that he was merely using up old paper in writing personal letters.
The Chancellor made an oral statement from the bench before issuing his formal decree in the ease, and in the course of it said “The Court is really inclined to think that perhaps this defendant has held himself out as willing to sell property to others, but the only proof of that is the special agent that was sent in here and that was flatly denied. ’ ’ He then concluded that the evidence actually introduced did not sustain the allegations. Appellant contends now that the two parts of the Chancellor’s statement are inconsistent, and that the first words amounted to a finding that defendant was guilty of the acts charged. We do not so interpret the Chancellor’s language. He was merely saying that he suspected the defendant might in fact have done the acts, but that the evidence did not show he had, and the decree would have to be based on the evidence. There is no inconsistency in that.
A moment later, at the close of the Court’s oral statement, Mr. Holt, attorney for the plaintiff Secretary of the Commission, asked “If the court please, what harm can be done by granting an injunction if he is not going to violate the law?” and the Chancellor replied “Under the law, before I would be warranted in issuing an injunction I must find positively he has violated the law in the past.” Appellant asserts error in this statement also, on the theory that the Chancellor’s use of the word “positively” indicated that he was requiring clear and conclusive evidence, rather than merely a preponderance of the evidence, as a condition to granting the civil injunction sought against Phillips.
Here again we do not believe that the record sustains appellant’s position. In the decree, formally rendered on the same day as the trial, it was declared that “the Court doth find that plaintiff has failed to establish by preponderance of the testimony the material allegations of his complaint herein.” That was the Court’s formal action in the case, and the evidential standard employed in it was the proper one. The adverb “positively” as it appeared in the earlier statement appears to have been nothing more than a word thrown in for emphasis in the course of the judge’s explanatory conversation with Mr. Holt. At any rate it does not rebut the effect of the express language contained in the decree.
On review of the entire record we cannot conclude that the Chancellor’s determination of the case is con- tvary to the preponderance of tlie evidence. The decree is affirmed. | [
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J. Fred Jones, Justice.
This is an appeal by Wholesale Apparels, Inc., Douglas Parrish and Floyd McCann from a joint and several circuit court judgment rendered in favor of Hubbard Pants Company on an account for merchandise sold to Wholesale Apparels, Inc. with payment personally guaranteed by Parrish and McCann.
The background facts appear as follows: Parrish and McCann organized a new corporation under the name of Wholesale Apparels, Inc. The new corporation having little, if any, net worth contemplated business operations which necessitated acquiring on credit a stock of goods for resale. The corporation, in order to acquire such merchandise for resale, sought credit from various suppliers, one of whom was the appellee, Hubbard Pants Company. The Hubbard Company, before extending credit to the corporation, required a personal guaranty agreement from Parrish and McCann. On July 27, 1970, Parrish and McCann arranged for the purchase of merchandise from Hubbard Pants Company and delivered to Hubbard an agreement which reads as follows:
“We agree to personally indemnify your Company on any balance owed your Company by Wholesale Apparels, Inc. located in Little Rock, Arkansas.”
In reliance upon this agreement, Hubbard advanced credit to Wholesale Apparels, whose unpaid balance on account finally amounted to $14,487.89. When Hubbard pressed for payment of this balance, Mr. Parrish, as president of Wholesale Apparels, wrote a letter to Hubbard Company on September 8, 1971, advising that Wholesale had not had sufficient sales to meet its obligations; admitting that it owed to Hubbard Company a balance of approximately $15,000, and inquiring if Hubbard Company would accept $4,500 as payment in full. Hubbard refused this offer and on November 19, 1971, it filed its suit praying a joint and several judgment against Wholesale Apparels, Inc. and Douglas Parrish and Floyd McCann as guarantors.
On appeal to this court the appellants contend that there is no substantial evidence to support the trial court’s finding that the guaranty agreement executed by Parrish and McCann was an unlimited and continuing agreement. They argue that their agreement was only intended to cover the balance due on the initial purchase and was not intended to apply to balances due on subsequent purchases. According to the testimony of the credit manager for Hubbard Company and a copy of invoice sent out on July 31, 1970, the credit balance on the initial purchase amounted to only $121.20, and this amount was subsequently paid. Sheets from the ledger maintained by Hubbard Company were introduced into evidence and show numerous entries of charges and credits between July 51, 1970, and June 30, 1971, and the balance on the account in the amount of $14,487.89 is not questioned.
The only question on this appeal is whether there is any substantial evidence to sustain the trial court’s finding that the guaranty agreement was entered into with the intention and for the purpose of guarantying the payment of the corporate account over the entire period involved in this case, or whether it was intended to cover only the initial transaction as contended by Parrish and McCann.
Following several entries on the ledger sheets above referred to, there is shown an account balance, as of November 10, 1970, in the amount of $4,338.50. On that date Mr. Parrish wrote a letter to Hubbard Company confirming a previous telephone conversation in relation to one of the stores owned and operated by Wholesale Apparels. The letter advised that 50% of the stock in Wholesale Apparels was owned by Mr. Parrish and 50% by Mr. Mc-Cann, and the letter then reads in part as follows:
“This being a new Corporation and starting with a small net worth, Douglas Parrish and Floyd McCann have personally endorsed any liabilities of this company to the Hubbard Company. This endorsement should be in your credit files. # # #
The stated balance of $5,025.25 in your letter of November 2 agrees with our records. ...”
We are of the opinion there is substantial evidence to support the trial court’s finding.
The judgment is affirmed.
Harris, C.J., not participating. | [
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Lyle Brown, Justice.
Appellant and appellees are the owners of adjoining tracts of land near the city of Piggott. The tracts are on the north side of the street and this case grows out of a dispute as to the boundary line between the two pieces of property. The difference between the parties concerns, roughly, some eighteen feet. Appellant bases his claim on a surveyed line; appellees contend that the true line is one established by common consent and acquiescence of the adjoining owners for some ten years. The main contention for reversal is that the chancellor erred in finding from a preponderance of the evidence that the boundary had been fixed by common consent and acquiescence.
At one time the parents of appellant owned both parcels of land. Appellant received his deed from his father in 1961. The elder Mr. Mann conveyed the Hughes (appellees) tract to Ezra Hardin and wife in 1958; the Hardins conveyed to appellees in October 1967. Evidently no survey was made by either of the parties to this case at the time of their acquisition.
Mrs. Hardin testified that she and her husband (now deceased) acquired title in 1958 and moved on the plot of ground in 1962. She said there was an old fence between the Hughes and Mann tracts, and described the old fence as being in close proximity to the boundary line which the court later fixed. She said she told appellant “maybe the fence angled down through there” and told him that if so, he could set it back, but that was never done and “we just always counted the fence the line”.
Appellee Delbert Hughes testified that at the time he bought the property there was a fence, wooden and woven wire running northerly between the properties and that this fence was pointed out by Mr. Hardin as being the boundary. He said there were shrubs and flowers, and a garden which he regularly planted, within the disputed strip; that appellant never attempted to use the disputed strip for any purpose; that in 1969 appellant approached the witness for permission to cause to be constructed a sewer line through the disputed strip, and that permission was granted but the line was never installed.
Witness Walter Riddle testified for appellees. He said he had been familiar with the property for the last twelve years. In times past he had hauled livestock to the slaughterhouse which was operated on appellant’s property. He said that during those years there was a fence between the properties of the parties hereto and his description of the location also coincided with the line later fixed by the chancellor. He said “there was shrubbery, flowers, rose bushes and everything set on the inside on either side”.
Appellant testified he had been familiar with the property since the time his father owned it. He said in years past there had been an old north and south fence between the properties which was located between the survey line and the line testified to by appellee Hughes and his witnesses. He said the fence upon which appellee relies for a consent boundary was not in existence in March 1963. He testified that the first part of that fence was started by him in 1963 and completed by working spare time at different intervals. He said part of the fence north of the slaughterhouse was built by him to trap animals. He testified the south part of the fence was built “to keep people from the east side from seeing how big a mess I had over there”. He insisted the fence was partly burned and the rest of it was taken down, all in 1969. He denied that the Hardins occupied the disputed area when they owned the tract. He said at the time the Hardins lived there he had no use for the disputed area and gave Mr. Hardin permission to use it as a garden.
Appellant’s wife substantiated most of her husband’s testimony. She added that appellee Hughes was agreeable to a survey and quoted him as saying: “What’s a few feet this or that?” She said Hughes declined to pay any part of the cost of survey and also objected when her husband started erecting the fence on the surveyed line.
There was other testimony on both sides and we have given consideration to all of it. No useful purpose would be served by abstracting the testimony of each and all the witnesses. The location of the fence upon which appellee relies as the boundary by acquiescence is certainly not one-sided; in fact the testimony created a close question of fact. “When the evidence is conflicting or evenly poised, or nearly so, the judgment of the chancellor on the question of where the preponderance of the evidence lies is considered as persuasive.” Clark v. Mathis, 253 Ark. 416 486 S.W. 2d 77 (1972).
Appellant contends that the line established by the court is not straight or properly described. We do not agree. The line fixed by the court first runs “northerly” to a point 4 1/2 feet east of a concrete slab and then runs due north the rest of the way. That description was very nearly in line with the description of the location of the old fence relied upon by appellees.
Appellant insists that the court erred in admitting into proof appellees’ exhibit six. That was a picture introduced by appellees which was not mentioned in the interrogatories submitted to appellees. We find no prejudicial error or element of surprise. The picture is very similar to another picture introduced in evidence as exhibit five.
The court erred, says appellant, in permitting appel-lee Hughes to testify as to what his grantor (since deceased) told appellee about the location of the line. In the first place the testimony was invited by a question on cross-examination. In the second place it was admissible as an exception to the hearsay rule. Thacker v. Hicks, 215 Ark. 898, 224 S.W. 2d 1 (1949); Texas and N.O. Ry. Co. v. Broom, 53 Tex. Civ. App. 78, 114 S.W. 655 (1908); Knight v. Knight, 178 Ill. 553, 53 N.E. 306 (1899).
Affirmed. | [
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Dunaway, J.
The Arkansas Workmen’s Compensation Commission appeals from an order of the White Circuit Court. The court set aside a finding of the Commission that appellee, David R.. Sandy, was not entitled to payment from the Workmen’s Compensation “Second Injury Fund” as claimed by him, and allowed said claim for total and permanent disability.
In 1925, before the enactment of a Workmen’s Compensation Act in Arkansas, Sandy received an injury to his left hand, whereby he lost all the fingers on the hand except the thumb. On July 21, 1943, while employed as a millwright by the Hansen & Haggott Lumber Company of Searcy, Arkansas, Sandy suffered an injury to his right arm, necessitating its amputation above the elbow. Compensation at the rate of $20 per week was paid him for 20 weeks, covering his period of temporary total disability. Claimant was then paid a lump sum settlement in the amount of $3,754.76, representing the sum he was entitled to at $20 per week for 200 weeks for loss of his right arm, as provided for by the Workmen’s Compensation Act.. This order of the Commission was dated April 6, 1944.
On July 19, 1944, Sandy filed a claim with the Commission alleging that as a result of the 1925 injury to his left hand and the subsequent loss of his right arm in 1943, he was totally and permanently disabled. By this claim appellee sought additional compensation from the “Second Injury Fund” provided for by the Workmen’s Compensation Act.
The section of the Workmen’s Compensation Act under which Sandy was paid compensation for the loss of his right arm now appears as § 81-1313 (c) Ark. Stats. (1949 Suppl.). That section provides the compensation which shall be paid for the specific loss of various members of the body.
The part of the Act under which the present claim for additional compensation was filed reads as follows: (Ark. Stats. (1949 Suppl.) § 81-1313)
“(f) Second injury. In cases of permanent disability arising from a subsequent accident, where a permanent disability existed prior thereto:
“(2) If ail employee lias a prior permanent disability not occasioned by an injury resulting while in the employ of the same employer in whose employ he received a subsequent permanent injury, the amount of compensation for the subsequent injury shall be fixed as follows:
‘iii. If an employee who had previously incurred permanent partial disability through the loss of one hand, one arm, one foot, one leg, or an eye, incurs permanent total disability through the total loss of another member, enumerated in this sentence, he shall be paid, in addition to the compensation for permanent partial disability provided in section 13 (c) (subsection (c) of this section), additional compensation during the continuance of such total disability not to exceed sixty-five per centum (65%) of the average weekly wage earned by him at tlie time of the accident which produced the total permanent disability. In case an employee who has been awarded additional compensation under this subsection subsequently establishes an earning capacity by employment, he shall be paid during the period of such employment, instead of the compensation above provided sixty-five per centum (65%) of the difference between his average weekly wages at the time of the accident which produced total disability and his wage earning capacity as • determined by his actual earnings in such employment. The sum total of compensation payable for all disabilities shall not exceed 450 weeks or eight thousand ($8,000) dollars. Compensation provided in this subsection shall be paid out of a special fund created for such purpose in the following manner: The employer, or, if insured, his carrier, shall pay the sum of five hundred ($500) dollars into such special fund for every case of injury causing death in which there are no persons entitled to compensation. The State Treasurer shall be custodian of this special fund, to be known as Second Injury Fund, and the Commission shall direct the distribution thereof.”
After appellee’s additional claim was filed, he was examined by Dr. D. T. Cheairs, medical examiner for the Commission. Dr. Cheairs’ report reads as follows:
“I have today, September 29, 1947, made examination of David R. Sandy, white male, age, 64 years. Injured his left hand in May of 1925, and lost his right arm July 21, 1943. Present Complaint: ‘I have lost my left index, middle, ring and little fingers where they join the left hand. My left thumb is o. k. ’ Findings: Claimant’s right arm was amputated just above the elbow. His left index, middle, ring and little fingers were amputated in metacarpel-phalangeal joints. Left thumb functions normally. Opinion: Claimant has 70 per cent permanent partial disability to his left hand in addition to the loss of his right arm about the elbow.”
This report and testimony of the claimant were considered upon hearing of the claim by Chairman Peel of the Commission in September, 1947. Commissioner ■Peel’s opinion denying the claim was filed’December 16, 1947. At the hearing by the full commission upon review of Commissioner Peel’s findings, a medical report of Dr. Porter R. Rogers, claimant’s family physician, was filed. Dr. Rogers’ report, dated February 21, 1948, is as follows:
“This is to certify that I have been the family physician of David R. Sandy since 1942. In 1943, Mr. Sandy received an injury in which he lost his right arm. He has only the thumb of His left hand, having lost all of his fingers in an accident in 1925. Physical Findings: The loss of all the fingers on his left hand and the loss of his right arm above the elbow, leave Mr. Sandy totally and permanently disabled from following any gainful occupation. It is my opinion that Mr. Sandy is totally and permanently disabled in his left hand.”
The claimant’s own testimony may be briefly summarized: Prior to the 1925 injury to his left hand, he was a millrigbt and continued in this occupation until he lost his right arm as a result of the accident in 1943. After the loss of his right arm he bought and sold timber tracts and thubor xmtil some time in 1947. His son bad a small sawmill, and part of the timber was processed through this mill. lie also bought some tie.siding from his son and had it manufactured. He was only able to make a living through the aid of his son and because of the lump sum compensation settlement he had received. His plan (set forth as the reason for the lump sum settlement in 1944) to go into the beer business had not materialized. He could operate a rice farm in his physical condition, and thinks he could make a living doing this if he had the necessary capital. •
The Commission also considered a letter dated November 1, 1944, from the District Supervisor of Vocational Rehabilitation, State Board of Vocational Rehabilitation, to the effect that because of Sandy’s physical disability and his advanced age, there was nothing that department could do to assist him.
Upon the evidence above outlined, the Commission denied appellee’s claim. The Commission foiind that Sandy was not totally and permanently disabled and that he had not suffered the total loss or loss of use of his left hand prior to the 1943 injury. The Commission found as a fact that the loss of use of claimant’s left hand was only partial, both before and after the subsequent injury to his right arm.
In denying the additional compensation claimed from the “Second Injury Fund”, on the basis of its. fin ding of fact, the Commission stated this in its opinion:
“This fund, called the ‘Second Injury Fund’, is a limited and restricted fund and is created specifically for the benefit of those employees who are found to be totally and permanently disabled and who strictly comply with the provisions and requirements of § 13 (f) (2) (iii). "While Workmen’s Compensation Acts are generally to be liberally construed the solvency of this special ‘Second Injury Fund’ requires that the provisions and requirements thereof be fully and strictly complied with. In our opinion, the ‘loss of a member or organ’, or the ‘loss of use of a member or organ’, as is provided for in § 13 (i) (2) (iii) moans the total loss or total los.s of use. To hold otherwise would open this special fund to the point of insolvency and provide no benefit to those who do comply with its provisions and who are entitled to benefits thereunder.”
This court has held that the degree of disability suffered by an injured employee is a factual question to be determined from the evidence in the case. Caddo Quicksilver Corporation v. Barber, 204 Ark. 985, 166 S. W. 2d 1; Bookout v. Reynolds Mining Company, 213 Ark. 198, 209 S. W. 2d 881. ,
In the instant case, the medical testimony as to the extent of claimant’s disability was conflicting, and the Commission evidently chose to accept the report of Dr. Cheairs. The courts are without authority to reverse the conclusion of the Commission in this regard. Mechanics Limber Company v. Roark, 216 Ark. 242, 224 S. W. 2d 806. On the whole case, there is substantial evidence to support the Commission’s finding of fact, and the Circuit Court erred in setting aside the order of the Commission.
The judgment is reversed and the cause remanded with instructions to affirm the Commission’s action. | [
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Leflar, J.
Appellant Case brought this action for treble damages under Ark. Stats., § 50-105, on account of the cutting by defendants of 856 pine trees from Case’s land. Defendants admitted that they cut the trees, but denied that the circumstances of the cutting justified an award against them of thrice the value of the timber cut. The jury returned a verdict against defendants for single damages only, and plaintiff Case appeals.
The testimony differed as to the actual amount of lumber cut from the 856 trees, but the maximum testified to was 20,000 board feet. The value of the lumber as cut also was the subject of divergent testimony, but the highest rate testified to was $10 per 1,000 board feet. The jury’s verdict of $200 for the plaintiff was obviously an award of single damages based on these maximum figures.
The evidence was that defendants had bought from a third party the timber on a tract adjoining Case’s land, and that the seller had pointed out the boundary incorrectly, so that defendants thought the 856 trees were included in the timber they had bought from the third person. Defendants did not, before cutting the trees, have the boundary surveyed in the manner set out in Ark. Stats., § 54-201, though their testimony indicated an honest belief that the 856 trees were on their own side of the boundary. They now admit that this belief was erroneous.
The first ground relied upon by appellant Case is the Circuit Judge’s refusal to give appellant’s proffered Instruction No. 1, which would have told the jury that defendants’ failure to procure the survey by the County Surveyor, as prescribed by § 54-201, before cutting the 856 pine trees “would be prima facie willful and unlawful and the plaintiff would be entitled to recover three times the value of the said 856 pine trees so cut and removed, and your verdict should be for the plaintiff for such amount. ’ ’
This was in the nature of a binding instruction. Defendants had given evidence that the cutting on plain tiff’s land was not willful, that they had gone on plaintiff’s land unintentionally. Yet the instruction stated that if the statutory survey had not been made, as admittedly it had not, the plaintiff should receive treble damages in any event.
Failure to procure the statutory survey is some evidence that the timber was cut willfully and intentionally from plaintiff’s land, but it does not in the face of contrary evidence have the practically conclusive effect which plaintiff’s Instruction No. 1 would have ascribed to it. See Parker v. Fenter, 216 Ark. 398, 225 S. W. 2d 940. The proffered instruction was correctly refused.
Appellant also complains of two instructions which were at defendants’ request given by the Circuit Judge.
One of these, No. 6, told the jury that if they found that defendants “had probable cause to believe that the land on which the trespass is alleged to have been committed, or the timber cut and carried away, was (their) own, then the plaintiff shall recover only single damages, or in other words the actual value of the timber so cut and removed.” The instruction is in exact accordance with the provisions of Ark. Stats., § 50-107, which we have deemed to be a part of the same statutes as § 50-105. Sturgess v. Nunn, 203 Ark. 693, 158 S. W. 2d 673. The later section explicitly limits the right of treble recovery which plaintiff seeks under § 50-105, and the instruction based upon it was properly given.
The other instruction complained of, No. 8, told the jury that if they believed “that the defendants cut this timber under the honest belief that it was on the tract of timber which they had bought, . . . that they were not taking it purposely, intentionally and knowingly from Mr. Case’s land,” they should award single damages only. This instruction likewise is in accordance with the law of this state. Upton v. Wimbrow, 148 Ark. 408, 230 S. W. 277; Sturgess v. Nunn, supra; Parker v. Fenter, supra. Our statutes do not impose double or treble damages upon one who cuts timber from the land of another unless lie does so willfully and intentionally. Otherwise, single damages suffice.
The judgment is affirmed. | [
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John A. Fogleman, Justice.
This action was instituted by appellee Steve McDonald, Jr., (a justice of the peace for Big Rock Township in Pulaski County) as a citizen, taxpayer and property owner of Pulaski County, on behalf of himself and all others similarly situated. The suit was a proceeding against B. Frank Mackey, individually and as County Judge of Pulaski County, and William L. Tedford, individually and as County Treasurer of Pulaski County. Appellee sought to have certain appropriations made by the county’s levying court, commonly called the quorum court, declared void and to have Mackey, individually and as county judge, and Tedford, individually and as county treasurer, enjoined from authorizing, issuing, paying or disbursing any county warrants or otherwise expending any public funds under the authority thereof.
The appropriations questioned by appellee were made at meetings of the levying court held on January 12, 1973, and March 5, 1973. At the January meeting, the court made an appropriation to “County Court” for a “Contingent Fund” in the amount of $63,410.61. On March 5, 1973, the court made an appropriation of $222,265 from Federal Revenue Sharing Funds designated only as “Contingent Fund.” The chancery court held that both appropriations were unlawful and unauthorized, and granted an injunction against Mackey, in his capacity as county judge or individually, from initiating, directing or authorizing any expenditure from either “Contingent Fund” and against the county treasurer from paying out any monies from these funds.
Judge B. Frank Mackey was called as a witness by appellee. His testimony reveals he has a rather good grasp of the functions of the judge of the county court with reference to county liabilities and appropriations. He said the contingent fund was for emergency purposes to cover legitimate county expenses for which there is no appropriation. He classified these as: (1) financial obligations, placed on the county by legislative enactment, for which no appropriation has been made by the quorum court or the appropriation made is inadequate; (2) obligations of the county for proper county purposes, the payment of which results in allowances in excess of appropriations made by the quorum court. As examples, Judge Mackey mentioned a legislative increase in the allowance for operating the office of the prosecuting attorney amounting to $100,000 more than the appropriation theretofore made by the quorum court, and increased obligation on the county for the payment to court reporters for transcripts to be used for appeal purposes by indigent persons convicted in the criminal courts, for which no appropriation had been made, and obligations arising after appropriations made have been exhausted. Judge Mackey made it quite clear that no contingent fund appropriation was made to the county judge, that all payments from the contingent fund were made through the regular process of county court action on claims filed and that no payments were made in any other manner. Judge. Mackey stated that he felt legally bound to allow expenses incurred pursuant to legislative enactments, both when no appropriation had been made for the purpose by the quorum court and when the quorum court’s appropriation was not sufficient to meet all obligations so established. Judge Mackey testified the claims were processed through the county comptroller who audited the claims before their submission to him for approval. As we understand Judge Mackey’s testimony, the comptroller indicates to the county court those claims which must be paid from the contingent fund. Mackey said the comptroller worked under his direction. There is nothing in the record to indicate that Mackey has ever acted individually or in any capacity except as judge of the county court in any of these matters. There is no contention that there has been any fraudulent action or lack of good faith on the part of either of the county officials who are defendants in the action. The appropriation was not made to or for the benefit of the county judge but clearly was placed as an item under the general heading “County Court.”
The situation is a little different as to the federal revenue sharing funds. Those funds were appropriated by adoption of allocations proposed by the budget committee of the quorum court. These allocations fall into three general categories, none of which mentioned the county court and one of which was simply “contingent fund.” Judge Mackey was aware that Pulaski County is required to assure the Secretary of the Treasury that these funds will be used by the county only in accordance with laws and procedures governing the county’s own revenues and that misapplied funds must be repaid along with a 10% penalty. He stated that, at the time of the trial, these funds had been placed in a separate trust account and that none of the money had been spent.
Appellants filed a general demurrer to appellee’s pleading, which was styled “Petition for Injunction,” and specifically alleged that the chancery court was without jurisdiction under Art. 16, Sec. IB, of the Constitution of Arkansas over federal revenue sharing funds.
After hearing the matter, the chancellor expressed grave concern about the jurisdiction of the chancery court to act in the matter, as well he might. In view of the disposition we make of the case, however, we need not concern ourselves too much with the serious doubt about the jurisdiction of the chancery court over this action, which basically would appear to fall within the jurisdiction of the circuit court under Art. 7, Sec. 14. The county treasurer, however, is a party to the action. It is the duty of the county treasurer to pay and disburse monies payable into the county treasury on warrants drawn by order of the county court. Ark. Stat. Ann. § 12-1310 (Repl. 1968). If he neglects or refuses to pay any warrant drawn on him by order of the county court, when he has in his hands money available for the payment thereof, the law requires him to forfeit to the holder fourfold the amount of the warrant. Ark. Stat. Ann. § 12-1311 (Repl. 1968). Furthermore, the refusal constitutes a misdemeanor in office, and subjects the treasurer to removal. Ark. Stat. Ann. § 12-1312 (Repl. 1968). Clearly, the treasurer is a ministerial officer of the county, who is not vested with discretion in such matters.
It is true that appellee had the right to appeal from .the appropriations made by the quorum court. Lee Court ty v. Robertson, 66 Ark. 82, 48 S.W. 901. It is not clear, however, that his remedy at law was plain, adequate and complete. Under similar circumstances, this court has held that the chancery court properly exercised jurisdiction in an action against the county clerk to restrain the clerk from issuing warrants based on allegedly unauthorized orders of the county court. Worthen v. Roots, 34 Ark. 356. We consider this case to be controlling authority as to the chancery court’s jurisdiction, at least insofar as the county treasurer is concerned. See also, Farrell v. Oliver, 146 Ark. 599, 226 S.W. 529. Under the authority of the cited cases, it seems that all the issues here raised may be adequately treated within the jurisdiction of the chancery court.
Appellants’ first point for reversal is based upon their contention that the court had no jurisdiction insofar as the federal revenue sharing funds are concerned. They base their argument upon the assertion that Art. 16, Sec. 13, of our Constitution applies only to county tax funds but not to federal funds and that jurisdiction of misuse of federal funds is governed by the Federal Revenue Sharing Act which does not place jurisdiction in any state or local court. We do not agree with appellants.
At the outset, we should say that the application of Art. 16, Sec. 13, has not been strictly limited to exactions of county, town or city tax funds. See, e.g., Eddy v. Schuman, 206 Ark. 849, 177 S.W. 2d 918; City of Bentonville v. Browne, 108 Ark. 306, 158 S.W. 161; McCain v. Hammock, 204 Ark. 163, 161 S.W. 2d 192; Nelson v. Berry Petroleum Co., 242 Ark. 273, 413 S.W. 2d 46; Parker v. Laws, 249 Ark. 632, 460 S.W. 2d 337; Price v. Edmonds, 231 Ark. 332, 330 S.W. 2d 82; Cunningham v. Stockton, 235 Ark. 345, 359 S.W. 2d 808; Needham v. Garner, 233 Ark. 1006, 350 S.W. 2d 194. It seems that, under this section of the constitution, equitable remedies are accorded the taxpayer to prevent misapplication of funds when the taxpayer may be required to replenish those funds if exhausted through the misapplication. Eddy v. Schuman, supra. It also seems clear that this constitutional provision is applicable in every case where taxpayers will bear the burden of replenishing funds exhausted by misapplication. McLellan v. Pledger, 209 Ark. 159, 189 S.W. 2d 789; Samples v. Grady, 207 Ark. 724, 182 S.W. 2d 875; Farrell v. Oliver, 146 Ark. 599, 226 S.W. 529. The cited cases make it quite clear that a citizen and taxpayer may maintain a suit to prevent a misapplication of funds or to protect against unlawful official acts which could logically result in illegal exaction as well as to require reparation for that which has been done. See also, Grooms v. Bartlett, 123 Ark. 255, 185 S.W. 282. We do not consider the case of Gipson v. Ingram, 215 Ark. 812, 223 S.W. 2d 595, relied upon by appellants to be applicable here. The opinion in that case clearly points out that it was shown that the cash funds involved, admittedly public funds, were not derived from taxes but from the operation of the state agencies and institutions involved. For the purposes of the opinion in that case, these cash funds were treated as those received by the state agencies and institutions from sources other than taxes, as the term “taxes” is ordinarily used. It is also significant that in Gipson, none of the funds ever reached the public treasury. Quite a different situation prevails here.
Under the State and Local Fiscal Assistance Act of 1972 funds received by units of local government may be used only for specified priority expenditures enumerated in the act. See 31 U.S.C.A. § 1222. They are:
(1) ordinary and necessary maintenance and operating expenses for—
(A) public safety (including law enforcement, fire protection, and building code enforcement),
(B) environmental protection (including sewage disposal, sanitation, and pollution abatement),
(C) public transportation (including transit systems and streets and roads),
(D) health,
(E) recreation,
(F) libraries,
(G) social services for the poor or aged, and
(H) financial administration; and
(2) ordinary and necessary capital expenditures authorized by law.
In order to qualify for funds under the act, a unit of local government must show that it will establish a trust fund in which it will deposit all payments it receives and use the fund only for the prescribed priority expenditures and pay over to the Secretary of the Treasury an amount equal to 110% of any amount expended out of such fund in violation of the limitations on expenditures, if such amount is not promptly repaid to the trust fund. 31 U.S.C.A. § 1243. The local government unit is also required, under the same section, to provide for the expenditure of the funds received only in accordance with laws and procedures applicable to the expenditures of its own revenues. Thus, it is quite clear that the county general revenues would be the source of any reimbursements for unauthorized expenditures. Clearly, the taxpayer who would bear a part of the burden of reimbursement has a right under Art. 16, Sec. 13, to prevent an improper application of these funds. If the funds are to be disbursed in accordance with laws and procedures applicable to the expenditures of county revenues, clearly the courts of the state have jurisdiction to prevent expenditures which are not in accordance with state laws and procedures, even if the federal courts or other federal agencies should also have jurisidction. Nothing in the federal act pretends to limit jurisdiction of such preventive action to either federal courts or federal administrative agencies.
Appellants also contend that the chancery court erred in applying illegal exaction principles to this case, basing their argument largely on the fact that no fraud or bad faith is involved. We agree with the chancellor’s finding that no fraud or bad faith had been shown. The illegal exaction principle, however, is not confined to such cases, even though there have been several occasions where these elements were the bases of findings that there had been illegal exactions. A good faith misapplication of funds in a manner or for a purpose not authorized by law constitutes an exaction from the taxpayers which is illegal even though not fraudulent. In Lee County v. Robertson, 66 Ark. 82, 48 S.W. 901, one of the earliest cases arising under this section, there was no issue of fraud or bad faith, but, at the suit of a taxpayer, the court held that an unauthorized appropriation by the quorum court was tantamount to an allowance and enforcement of an illegal exaction against every taxpayer in the county. It has also been held that an appropriation of funds not made in the manner required by the constitution is a proper basis for taxpayer relief against an illegal exaction. Farrell v. Oliver, 146 Ark. 599, 226 S.W. 529. The making of a contract not authorized by law which would result in the taking of money from the public treasury may also be the basis for taxpayer action under this section. Green v. Jones, 164 Ark. 118, 261 S.W. 43. See also, Price v. Edmonds, 231 Ark. 332, 330 S.W. 2d 82. The anticipated payment of salaries by a city pursuant to an ordinance which was contrary to the constitution and statutes of the state was held to be appropriate basis for taxpayer relief from an illegal exaction. Laman v. Moore, 193 Ark. 446, 100 S.W. 2d 971. We have upheld a decree for recovery of salary paid to a de facto officer in a taxpayer’s action under this provision of our constitution, because our law does not permit payment of salaries to such officers. Sitton v. Burnett, 216 Ark. 574, 226 S.W. 2d 544. In short, an illegal exaction, in the sense of Art. 16, Sec. 13, of our Constitution, is an exaction that either is not authorized by law or is contrary to law.
We do agree, however, with appellants in their contention that “the contingent fund” appropriation to the county court was not illegal. In this respect we disagree with the chancellor. We do not believe that the authorities relied upon by the chancellor in reaching his conclusions in this respect are applicable to the facts in this case. In Pressley v. Deal, 192 Ark. 217, 90 S.W. 2d 757, we simply held that an appropriation for expenses of the county judge was not authorized under Subdivision 6, Paragraph 7, of Crawford & Moses Digest 1982 [now Ark. Stat. Ann. § 17-409 (Repl. 1968)], because such expenses were not allowed by the laws of this state in view of the fact that a county-initiated salary act did not provide for the payment of any expenses of the county judge. It was further noted that no law of this state gave authority to the quorum court to appropriate money to pay expenses of the county judge for work done outside his official duties. The circuit court, from which that appeal was taken, had made a specific finding that this appropriation was for such a purpose. Even there we recognized that the quorum court had the power to make an appropriation to defray county government expenses allowed by the laws of the state in addition to those specifically mentioned under the first six items of the subdivision in question.
In Martin v. Bratton, 223 Ark. 159, 264 S.W. 2d 635, there was an attempted appropriation of $20,000 “. . . from the county general fund to allow the county judge to use it as he sees fit and deems necessary.” Clearly, this appropriation was not authorized under our statutes, and we characterized it as an attempt to entirely bypass the functions of the county court, because the appropriation was to be used by the county judge, rather than by the county court. But that is not the case here. Even though the county judge, when asked who would make the decision as to disbursements from this contingent fund, responded that he would, he immediately stated that guidelines were set out under the law, and in later testimony made it quite clear that payments out of this contingent fund were made on claims presented to the county court and that he, as county judge, did not make fully independent decisions without the processing of claims through the county court. It seems quite clear to us that the appropriation is not one to be expended by the county judge but by the county court, and that the defects in the appropriations involved in Pressley and Martin are absent here.
We agree with appellants and the chancellor that the county is required to pay obligations imposed upon it by law which have not been the subject of an appropriation. A review of our law in that respect would be helpful to an understanding of the disposition of this case. It is true that Art. 16, Sec. 12, of the Arkansas Constitution prohibits the payment of money out of the treasury until the same shall have been appropriated by law and then only in accordance with the appropriation. This section has been held applicable to the counties. Nevada County v. News Printing Company, 139 Ark. 502, 206 S.W. 899. See also, Sadler v. Craven, 93 Ark. 11, 123 S.W. 365.
The specified order for making appropriations by the quorum court is set out in § 17-409 as follows:
1. To defray the lawful expenses of the several courts of record of the county or district and the lawful ex penses of criminal proceedings in magistrate’s courts, stating the expenses of each of said courts separately.
2. To defray the expenses of keeping persons accused or convicted of crime in the county jail.
3. To defray the expenses of making the assessments and tax books and collecting taxes on real and personal property.
4. To defray the lawful expense of public records of the county or district.
5. To defray the expenses of keeping paupers of the county or district.
6. To defray the expense of building and repairing public roads and bridges and repairing and taking care of public property.
7. To defray such other expenses of county government as are allowed by the laws of this State.
These purposes were first classified in the case of Worthen v. Roots, 34 Ark. 356, where we said that the first four are of an indispensable nature, essential to the support of the government, since they are for services that must be performed, else the business of the counties must stop. The last three were said not to be imposed by necessity, but to be matters of contract. The matter was gone into rather extensively in Polk County v. Mena Star Co., 175 Ark. 76, 298 S.W. 1002. There we said that quorum or levying courts should follow the provisions of this statute strictly in making appropriations, and first make ample provision for those necessary expenses imposed upon the counties by law, after which they were at liberty to make appropriations of the whole or part of the remainder of the revenue for the second class of items, that is, those that relate to matters of contract regarding the internal affairs of the county or internal improvement thereof over which the county court has discretionary power. It was said that the first class of obligations was imposed on the counties by law and that the county court is substantially without any discretion with respect thereto. In that case, we said:
The holding of elections, printing ballots, pollbooks, tally sheets, and other election supplies, the feeding of prisoners confined in the county jail, the holding of courts of record and fees of justices of the peace, the salaries and fees of county officers, including the prosecuting attorneys, the making of assessments and tax books, and collecting taxes are all necessary county expenses imposed by law, over which the county court has no control or discretion except possibly the amount to be allowed for the service rendered, as all compensation is either fixed by law, or is provided for.
As indicated in the Polk County case, the different manner of treatment of the two classes of appropriations was first demonstrated by this court in Worthen v. Roots, supra. This court there pointed out that by the third sec-don of an act of March 18, 1879, (the same act setting out the order for making appropriations, which now constitutes a part of Ark. Stat. Ann. § 17-409) the legislature prohibited the county court or any agent of any county from making any contract on behalf of the county unless an appropriation had previously been made and wholly or in part unexpended. It should be noted that this is really the effect of Ark. Stat. Ann. § 17-416. This section seems, without question, to apply to Pulaski County. The court then observed that the legislature had designedly omitted any restrictions upon allowances, as distinguished from contracts. In this respect, the court said:
The nature and reason of this distinction, and, indeed, the full scope of the operation of the constitution itself, will become apparent from a consideration of the various purposes for which the tax is to be levied. Reverting to them, it will be seen that the first four are of an indispensable nature, essential to the support of the government. They are for services that must be performed, or the business of the counties must stop. The last three are not supposed to be imposed by necessity, but are matters of contract. It is well that appropriations be made for all pur poses, but of great consequence that in the matter of contracts the expenses of the counties should be limited to the amounts appropriated. This is impossible in cases of positive service required by law, and expenses incident to them; and in accordance with this view the legislature did not reimpose upon the county any disability as to allowances. Indeed, it is plain that any other view of the case would place the county court in the attiude of dealing oppressively and unjustly with those citizens who render her involuntary or indispensable services.
# * #
There is nothing in the twelfth section to restrain the court from making allowances upon exhausted funds, in the face of the marked removal of that restraint in another section.
The irresistible conclusion, upon a review of all the legislation, is, that the act of March 18, 1879, is the result of an effort (perhaps imperfectly accomplished) to return to the true policy indicated by the constitution of 1874: To require all appropriations to be made and taxes to be levied by a full court of justices, and that no money should be paid out of the treasury except on appropriation; and to restrain the county court, or its agents, from making any contracts until money may be appropriated to meet them.
# # *
We search in vain for any prohibition, in the act of 1879, against allowing claims by the county court beyond the appropriations. A large class of the claims ought to be allowed, and with regard to those depending on contracts made in excess of appropriations, if it be error to allow them, any citizen may appeal and correct the error. There is room for the operation of the whole constitution in all its aspects.
It is, of course, true that Amendment 10 to our State Constitution has prohibited the county court from making any allowance for any purpose in excess of the revenue from all sources for the fiscal year in which the allowance is made. This limitation, however, was not effective to prevent the county court from allowing claims for the essential governmental services, said to be of an indispensable nature, in excess of the appropriations made. We have not materially deviated from the principles of Wor-theri. Since the adoption of Ark. Stat. Ann. § 17-416 (Repl. 1968), which was Sec. 3 of Act 217 of 1917, this court has held that the county court may not make contracts for items 5, 6 and 7, specified in Ark. Stat. Ann. § 17-409, in excess of the appropriations made for the purposes set out, but that appropriations for the indispensable services of county government set out in the first four items do not constitute a limitation upon the power of the county court or other agents of the county to contract. State v. E. F. Leathem & Co., 170 Ark. 1004, 282 S.W. 367. It has been said that as to the first class of obligations, the county court is substantially without discretion, but that court has discretionary power as to the second class. Polk County v. Mena Star Co., supra. However, it is equally clear that whenever an obligation is legally imposed upon a county by legislative enactment within the power of the General Assembly, it must be paid without regard to the existence or exhaustion of a specific appropriation so long as the county general fund is not exhausted. Adams v. Whitaker, 210 Ark. 298, 195 S.W. 2d 634; Polk County v. Mena Star Co., supra; Crawford County v. City of Van Buren, 201 Ark. 798, 146 S.W. 2d 914; Burrow v. Batchelor, 193 Ark. 229, 98 S.W. 2d 946. This rule does not apply, however, to any obligation incurred by reason of a contract even though the making of the contract is required by statute. Jeffery v. Trevathan, 215 Ark. 311, 220 S.W. 2d 412; Nevada County v. News Printing Co., 139 Ark. 502, 206 S.W. 899. When the amount of the obligation is fixed by law, the county court is left without any discretion, and it may be compelled to make the payment by mandamus in the circuit court. Burrow v. Batchelor, supra; Crawford County v. City of Van Buren, supra. So long as the county general funds are not exhausted, the quorum court can be compelled by mandamus to make appropriations for such obligations. Jeffery v. Trevathan, supra. See also, Walsh v. Campbell, 240 Ark. 1034, 405 S.W. 2d 264. It has been said that if the law were otherwise, not only could the county court defy the legislature, but it could obstruct the necessary and ordinary affairs of the county. Green v. Shell, 239 Ark. 1161, 397 S.W. 2d 363; Jeffery v. Trevathan, supra; Burrow v. Batchelor, supra.
If an appropriation has been made "to defray other expenses of County government as are allowed by the laws of this State” pursuant to item 7 under the sixth subdivision of Ark. Stat. Ann. § 17-409, and it has not been exhausted, any obligation imposed upon the county by statute may be paid from that appropriation, even though no specific appropriation has been made to cover the particular obligation, regardless of whether the governing statute was passed before or after the appropriation was made. Nevada County v. News Printing Co., supra; Jackson County v. Pickens, 208 Ark. 15, 184 S.W. 2d 591; Jeffery v. Trevathan, supra. See also, Craig v. Grady, 166 Ark. 344, 266 S.W. 267. In addition, if the legislative mandate specifically requires payment from the county general fund, no appropriation is necessary. Green v. Shell, supra; Crawford County v. City of Van Buren, supra. And if the obligation is for necessary expenses for indispensable county government purposes (the first four items of the sixth subdivision of § 17-409), no appropriation is necessary as long as there is money in the county general fund to pay it. Burrow v. Batchelor, supra.
The nature of the appropriation for general county purposes under item 7 of the sixth subdivision of Ark. Stat. Ann. § 17-409 is discussed in Pressley v. Deal, 192 Ark. 217, 90 S.W. 2d 757, where we said:
In other words, the quorum court has the power to make an appropriation to defray such other county government expenses as are allowed by the laws of this state in addition to those specifically mentioned under the six preceding subdivisions.
We again discussed it in Adams v. Whittaker, 210 Ark. 298, 195 S.W. 2d 634, saying:
This is in the nature of a “lest we forget” provision and covers any and all other expenses of the county government fixed by the laws of the state, and though no specific reference is made to elections, these expenses have always been paid and the obligation and power to pay them has never been questioned.
Although we feel that the quorum court’s intentions as to the intended use and purposes of the fund could have been more clearly expressed, the “contingent fund” appropriation made to the county court in this case seems to substantially meet these requirements, and in this respect we disagree with the chancellor.
Much of what we have heretofore said has application to the federal revenue sharing funds. It is clear, that once these funds reach the county treasury, they must be appropriated as other funds are, in view of Art. 16, Sec. 12, of the Arkansas Constitution and the federal statutory requirement that the county will provide for the expenditure of the funds in accordance with laws and procedures applicable to its own revenues. 31 U.S.C.A. 1243 (a)(4). The only evidence relating to the intention of the quorum court in making this appropriation is the testimony of Mackey that it will be used for emergency purposes and to cover any category where the county may run out of funds on a particular appropriation. This is not sufficiently definite for us to say that the appropriation was proper, unless it is considered to be an appropriation under item 7 of subdivision 6 of § 17-409 and to be used for any purpose for which county general funds could be used if the purpose is within the purview of “priority expenditures” enumerated in 31 U.S.C.A. § 1222. We do think it proper within the limitations just stated. We agree with the chancellor, however, that no expenditure of funds beyond these limitations is authorized by this appropriation.
Appellants contend that the court erred in granting injunctive relief, saying that the court was indirectly accomplishing what it could not do directly, i.e., enjoin Mackey, individually and as county judge, and Tedford, as county treasurer, and thereby effectively enjoin the county court. We will not dwell upon this matter, because we see no necessity for an injunction. The power of the court to enjoin the treasurer is clear under the authority of Worthen v. Roots, supra, as previously pointed out in this case. The power to enjoin the county judge as judge of the county court is at least doubtful. But neither of the officials involved here appears to have any disposition or inclination to evade or avoid the governing law. It seems inappropriate, under these circumstances, to enjoin these officials, in any capacity. It is quite sufficient at this time to treat the action as one for a declaratory judgment. See Arkansas Association of County Judges v. Green, 232 Ark. 438, 338 S.W. 2d 672.
Accordingly, the injunction is dissolved and that part of the court’s decree declaring the appropriations unlawful is reversed and the cause remanded for the entry of a declaratory decree limiting allowances from the contingent fund appropriation of county general revenues to claims based upon obligations of the county for indispensable services of county government (described in Items 1, 2, 3 and 4 of Ark. Stat. Ann. § 17-409) in excess of appropriations made or obligations imposed upon the county by legislative enactment where the amount of the obligation is not left to the discretion of the county court and prohibiting the payment of any claim for a contractual obligation for any other governmental purpose for which a separate, specific appropriation was made by the quorum court, unless such contract was made pursuant to legislative direction or requirement and the specific appropriation made has been exhausted. The decree shall apply the same limitations to the contingent fund appropriation of federal revenue sharing funds and the additional requirement that claims paid out of this appropriation must also be limited to obligations for priority expenditures enumerated in 31 U.S.C.A. § 1222.
George Rose Smith, J., concurs.
Byrd, J., dissents.
We do not overlook the two items relied upon by appellee to show previous use of the “contingent fund.” They are payments to charities and payment for moving the sewer line for the courthouse, necessitated by construction of a convention center across the street. The latter is a non-recurring expenditure. Although the propriety of these items may be subject to serious doubt, we do not believe that these matters contravene our statement regarding the intentions of the officials. | [
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Dunaway, J.
Appellee Ferguson brought this action to recover $750 alleged to be due him under an oral contract with appellant as compensation for procuring a purchaser who bought 300 frozen food locker units from the appellant corporation. From a verdict and judgment in favor of Ferguson, the company has appealed.
In his complaint filed in August, 1946, Ferguson alleged that on or about October 10, 1945, one Leo Bour-land, acting as agent of the defendant corporation, engaged the plaintiff to find a buyer for frozen food locker units, the plaintiff to be paid $2.50 per locker unit sold; that 300 units were sold to Gibney Brothers of Prairie Grove as a result of negotiations carried out by plaintiff, and that the defendant had refused to pay the sum of $750 which was due plaintiff under said contract. Bourland was made a co-defendant.
On October 28, 1946, a default judgment was entered against appellant, but was later set aside when it developed that there had been no service of summons on the company. A default judgment against Bourland, entered December 28, 1946, remains unsatisfied. Appellant’s answer, filed April 26, 1947, denied the making or ratification of the alleged contract, and denied that Bourland had ever acted as agent for the corporation.
The appellant company was incorporated January 5, 1946. Sam Poulos and William Watkins each were the owners of 249 shares of stock, and Franklin Wilder held two shares. Before the incorporation, Poulos and Watkins had conducted the Fort Smith Refrigeration & Equipment Company as a partnership.
It is not disputed that through Ferguson the purchasers of the 300 locker units were first put in contact with the partnership concern some time in late 1945. It is also conceded that subsequently a written contract between the purchasers and the newly formed corporation was entered into, and that the first payfnent on the purchase price was made in June, 1946.
There is, however, sharp conflict in the testimony as to the oral contract alleged. At the trial Ferguson testified that Watkins was the one who had promised to pay him the sum of $2.50 per locker unit, although the complaint had alleged that the oral contract was made by Bourland. Bourland testified by deposition for the plaintiff that it was his understanding from someone connected with the appellant concern that Ferguson was to be paid as he claimed. Bourland denied having made the agreement himself and was not present when Watkins was supposed to have done so. Bourland’s connection with the business was that he supervised the installation of various locker plants, for which he received twenty per cent of the net profit of each transaction as compensation.
At the time of trial of the cause, the whereabouts of Watkins was unknown, he having severed his connection with the company a year or two earlier. Poulos denied any knowledge of the alleged contract and denied that Ferguson had ever been employed on a commission basis in any capacity by the defendant corporation.
Appellant’s main contention is that it was entitled to a directed verdict because the corporation was not in existence at the time the contract with Ferguson was alleged to have been made, and that even if such a contract had been made on behalf of the partnership, the appellant corporation would not be liable therefor.
Appellant concedes that the rule as to liability of corporations on contracts or obligations of a predecessor partnership is as stated in Fletcher, on Corporations, § 4012:
“A corporation succeeding a partnership or association is liable on the contracts or obligations of the latter where it either assumes them under express agreement or where the facts and circumstances are such as to show an assumption.
“. . . unless the corporation has expressly assumed the debts and obligations of its predecessor, its liability, if it exists at all, must arise by implication or presumption, out of the facts and circumstances attending the incorporation, and the acquisition by the corporation of the assets and property of the firm or association, . . . The corporation, of course, would not be liable on the partnership obligations where no showing is made that it either expressly or impliedly assumed them.”
It is further said in § 4014 of the same work. “It is quite generally recognized that a corporation may be held to have impliedly assumed the obligations of its predecessor, for an assumption of liability by the corporation, like any other fact, may be established by circumstantial evidence. Of course, the facts upon which the implication or presumption of liability is predicated must affirmatively appear from the pleadings and proof. The situation is analogous to that in which a new corporation, created to succeed to the assets and business of an old corporation, and which is simply a continuation of the old, becomes liable for its debts, and although more difficulty is encountered with the question of the assumption of liabilities when a corporation has succeeded to the business and assets of a partnership, it seems safe to say that the same rule prevails.”
Where the question was as to the liability of one corporation for the debts of another, in Good v. Ferguson & Wheeler Land, Lumber & Handle Company, 107 Ark. 118, 153 S. W. 1107, Ann. Cas. 1915A, 544, we held, to quote the headnote: ‘ ‘ One corporation may become liable for the debts of another when it has b}r reasonable implication assumed the payment of the liabilities of the debtor corporation, and it is a question for the jury to determine from the facts and circumstances whether they lead to the implication that when a new corporation takes over the property of an old one, it undertakes to discharge the latter’s obligations.” See, also, Warmack v. Major Stave Company, 132 Ark. 173, 200 S. W. 799; Meeks v. Ark. Light & Power Company, 147 Ark. 232, 227 S. W. 405.
Under the general rule as above-quoted and our holding in the Good case, supra, there was a question made for tlie jury’s determination whether the corporation had impliedly assumed the obligation to pay a commission to Ferguson. The two partners became the owners of 498 of the 500 shares of stock in the new corporation. They both were officers, and continued to conduct the same business. The corporation completed the sale of the locker units for which the negotiations had been begun by Ferguson, and received the profits from said sale.
Appellant was not entitled to a directed verdict, and since the instructions given by the court are not abstracted, we presume that this issue was submitted to the jury under proper instructions. Sloan v. Ayres, 209 Ark. 119, 189 S. W. 2d 653.
Appellant next urges that the trial court erred in not giving an instruction, the substance of which was that Ferguson could not recover if the jury found that he was acting as agent for both parties. The court below properly concluded that there was no evidence to warrant giving the requested instruction.
It is also urged that there was a fatal variance between the pleadings and the proof as to whether Bourland or Watkins made the contract to pay the commission alleged. The defendant did not plead surprise and ask for a continuance when this testimony was developed at the trial, and having chosen to speculate on the outcome of the jury’s verdict without making such request, cannot now complain. See National Cash Register Company v. Holt, 193 Ark. 617, 101 S. W. 2d 441; Stroud v. Henderson, 171 Ark. 338, 284 S. W. 45.
The final point argued by appellant concerns the court’s refusal to permit the defendant to introduce testimony as to whether the contract alleged was a reasonable or customary one in the business. To sustain its contention that such evidence was admissible, appellant relies on the recent case of Shaver v. McKamey, 216 Ark. 211, 224 S. W. 2d 819, in which we cited with approval the earlier case of Greer v. Laws, 56 Ark. 37, 18 S. W. 1038. Both cases involved a dispute as to the amount of commission due for the sale of real estate. We held it competent to prove the customary charge by real estate men in similar transactions, as bearing upon the probable truth of what was alleged on either side as having been the agreement between the parties.
In the case at bar the dispute is over whether there was any agreement for a commission. The situation is not the same as in the cases cited, where both parties were agreed that some commission was due, but differed as to the amount they had agreed upon. While proof of customary commissions in a particular type of business transaction might bear upon the probable truth of the amount of commission alleged by either party as having been agreed upon, such testimony would have no bearing on the truth of the existence or nonexistence of any contract at all.
The judgment is affirmed. | [
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Hart, C. J.
This appeal is prosecuted to reverse a decree restraining appellants from carrying into effect an order of the county court o.f Howard County, made on the 13th day of September, 1930, authorizing the county court to borrow $100,000 for the purpose of improving the roads and bridges in Howard County and to issue bonds therefor. The order further recited that at the general election to be held on the 4th day of November, 19'30', the proposition should be submitted to the voters of Howard County to vote a three-mill tax for the purpose of paying the bonds and interest for a period of thirty years.
The county court claimed the right to act under an amendment to the Constitution proposed by the Legislature of 1915 and adopted at the general election held in 1916. The amendment reads as follows:
“The county courts in their respective counties, in addition to the county tax now allowed to be levied, shall have power when authorized, as hereinafter provided, to levy an annual tax not exceeding three mills on the dollar on all-taxable property, which shall be collected and expended in making and repairing public roads. and bridges in their respective counties; and said court shall have power, after authority given as hereinafter provided, to levy a tax not exceeding three mills on the dollar on all taxable property for a period of time not to exceed thirty years, to borrow money, issue bonds and pledge the revenues arising from the tax levied for a period of time, to pay the interest and principal of any. sum or sums so borrowed. All bonds issued by authority herein given shall bear a rate of interest not to exceed six per cent, per annum. All sums so borrowed shall be used exclusively in making and repairing the public roads and bridges in the county. The annual tax and the tax for a period of years shall not both be levied and be in force at the same time in any county — the levy of one shall exclude the levy of the other.
“Before any levy of taxes herein authorized shall he •made, the question of levying such tax shall be submitted to the qualified electors of the county at a general or special election called for that purpose, at which a majority of the qualified electors voting at such an election shall have voted in favor of such levy of taxes.” Acts of 1915, pp. 1491, 1492; Constitution of Arkansas, Apple-gate, p. 200.
It will be noted that the amendment in effect provides for the county court to levy a tax not exceeding three mills on the dollar on all taxable property for a period of time not to exceed thirty years, to borrow money, issue bonds, and pledge the revenues from the tax levied to the payment of the principal and interest thereof. The amendment further provides that, «before the tax shall be levied, the question of levying the tax shall be submitted to the qualified electors of the county at a general election or at a special election called for that purpose.
The decree of the chancery court restraining the county judge and the county election commissioners from proceeding further in the matter was based upon the holding that the amendment copied and referred to above has been impliedly repealed by the passage of an amendment proposed by the Legislature of 1923 and adopted at the general election 1924. Acts of 1923, 797; Acts of 1925, p. 1087; Constitution of Arkansas, Applegate, p. 219. The first section of this amendment amends section 4 of article 12 of the Constitution by adding thereto that the fiscal affairs of counties, cities, and incorporated towns shall be conducted upon a sound financial basis and prohibited the making of a contract or allowance for any purpose whatever in excess of the revenue from all sources for the fiscal year in which the contract or allowance is made. The section contains a proviso, which reads as follows:
“Provided, however, to secure funds to pay indebtedness outstanding at the time of the adoption of this amendment, eonnties, cities and incorporated towns may issue interest bearing certificates of indebtedness or bond with interest coupons for the payment of which a county or city tax, in addition to that now authorized, not exceeding three mills may be levied for the time as provided by law until such indebtedness is paid.”
We think that the chancery court correctly held that the amendment under which the county judge and election commissioners proceeded to act was impliedly repealed by the later amendment adopted at the general election in 1924 and referred to above. It is a rule of universal application that the Constitution must be considered as a whole, and that, to get at the meaning of any part of it, we must read it in the light of other provisions relating to the same subject. The general rule is that constitutional provisions and amendments thereto must be harmonized where practical. If there is to some extent an inconsistency or repugnancy between a provision of the Constitution and an amendment thereto, so that one or the other must yield, the amendment being the last expression of the sovereign will of the people will prevail as an implied repeal to the extent of the conflict. The same rule of construction would apply in the construction of amendments. The later amendment would govern to the extent that it was repugnant to or in conflict with the provisions of the former one. Little Rock v. North Little Rock, 72 Ark. 195, 79 S. W. 785 ; Ferrell v. Keel, 105 Ark. 380, 151 S. W. 269 ; State ex rel. v. Donaghey, 106 Ark. 56, 152 S. W. 746 ; Grant v. Hardage, 106 Ark. 506, 153 S. W. 269 ; Babb v. El Dorado, 170 Ark. 10, 278 S. W. 649 ; Lybrand v. Wafford, 174 Ark. 298, 296 S. W. 729 ; Polk County v. Mena Star Company, 175 Ark. 76, 298 S. W. 1002 ; and Lake v. Tatum, 175 Ark. 90, 1 S. W. (2d) 554. The principle of constitutional construction above laid down has been uniformly adhered to and applied according to the varying facts of the different cases.
In the case of Babb v. El Dorado, 170 Ark. 10, 278 S. W. 649, the court held that the amendment adopted in 1918 purporting to be an amendment of § 1 of article 16 of the Constitution, which authorized counties, cities and towns of 1,000 inhabitants to issue bonds, to raise funds to construct certain public improvements was impliedly repealed by what was called amendment No. 11 adopted in 1924, purporting- to amend § 4 of article 12 of the Constitution which limited the purposes for which bonds might be issued by counties, cities and towns to the payment of existing indebtedness, both because there was an irreconcilable conflict between the two amendments, and because the later amendment covers the subject-matter of the former amendment. The court expressly stated that the later amendment was a complete substitution for the provision in the former amendment with reference to the issuance of bonds, and leaves nothing of that amendment except the restatement of the original § 1 of article 16 of the Constitution.
The amendment adopted in 1918 readopts in full § 1 of article 16 of the Constitution, and then adds to it a provision authorizing incorporated towns of 1,000 or more in population and cities of the first and second class to issue interest-bearing bonds for the purpose of funding or refunding existing indebtedness incurred prior to the adoption of the amendment, and also for the purpose of using the funds to construct any of the public improvements enumerated in the amendment. The later amendment makes an addition to § 4 of article 12 of the Constitution by a provision authorizing counties, cities and incorporated towns to issue bonds to pay indebtedness existing at the time of the adoption of the amendment, and to levy a tax not exceeding three mills on the dollar to raise funds to pay the bonds as they mature. The amendment further provides that the fiscal affairs of counties, cities and incorporated towns shall be conducted on a sound financial basis, and that no county court shall make any contract or allowance for any purpose whatever in excess of the revenue from all sources for the fiscal year in which the said contract or allowance is made. The language just referred to was declared by the court to be too clear to admit of any construction that would harmonize it with the authority given under the amendment of 1918 to issue bonds.
The court further stated in Kirk v. High, 169 Ark. 152, 273 S. W. 389, 41 A. L. R. 782, that amendment No. 21, adopted in 1924, prohibited the issuance of warrants or other evidences of indebtedness in excess of the revenue of the current year, and this without any exception whatever. The court further said that amendment No. 11 contains the distinct provisions which are applicable* regardless of the particular place in which it is inserted in the 'Constitution, and the fact that it is annexed to § 4 of article 12 does not limit its effect in repealing the conflicting provisions of the amendment adopted in 1918 to issue bonds in certain instances.
In all subsequent cases which have come before this court in the construction of what is generally called amendment No. 21, being the amendment adopted at the general election in 1924, it has been held that contracts made or warrants issued by a county in any year in excess of the revénue for that year are void. The court has said that the amendment deals with the rights and powers of counties with respect to their fiscal affairs. The amendment forces counties to live within their annual income derived from a maximum constitutional tax levy, and by it the people intended to put the counties of the State, in so far as the future is concerned, upon a cask basis. Ivy v. Edwards, 174 Ark. 1167, 298 S. W. 1006 ; Polk County v. Mena Star Co., 175 Ark. 76, 298 S. W. 1002 ; Lake v. Tatum, 175 Ark. 90, 1 S. W. (2d) 554.
We are of the opinion that by the adoption of the amendment at the general election in 1924, commonly called amendment No. 11, the people intended to place the fiscal affairs of counties, cities, and towns upon a cash basis, and to prevent the issuance of further bonds by them except for the payment of indebtedness existing at the time of the adoption of the amendment. As we have already seen, the court has expressly declared this to be the purpose and effect of the amendment, and said that it impliedly repealed the provisions of the amendment adopted in 1918 with reference to the issuance of bonds. It would be repugnant to and in conflict with the provisions of the amendment adopted at the general election in 1924, commonly called amendment No. 11, which intended to prohibit the issuance of bonds except for indebtedness existing at the time of its adoption, to say that the provisions of an earlier amendment looking to the issuance of bonds for constructing roads, adopted in 1910, should also continue in force.
This view is strengthened when we consider that the power to issue bonds in amendment No. 11 is given by the proviso. This calls for an application of the maxim, “Expressin unius est exelusio alterms.” The fact that the framers of the amendment to the Constitution by the proviso authorized the issuance of bonds to pay existing indebtedness and the levying of taxes in the future to pay the principal and interest of the bonds, negatives the idea that counties, cities, or towns should have the power to issue bonds for any other purpose than that expressly granted in the proviso. Stanley v. Gates, 179 Ark. 886, 19 S. W. (2d) 1000.
"We do not think that the decision in Lybrand v. Wafford, 174 Ark. 298, 296 S. W. 729, is in conflict with the views herein expressed, but we are of the opinion that the holding in the present case follows from the principles of law therein announced and applied to' the facts of that case. There the court had under consideration the question of whether an amendment adopted at the general election in 1926 repealed the bond-issuing clause of the amendment adopted in 1924, commonly known as amendment No. 11. The amendment adopted in 1926 contains a clause that no county, city, town or municipality shall ever issue any interest-bearing evi dences of indebtedness except sncb bonds as may be authorized by law to provide for and secure the payment of the indebtedness existing at the time of the adoption of the Constitution of 1874. It was there claimed that the provision just referred to by necessary implication repealed the proviso of amendment No. 11, authorizing the issuance of bonds to pay indebtedness outstanding at the time of the adoption of the amendment in October, 1924. The court said that to hold that the provisions of the later amendment referred to the indebtedness existing at the time of the adoption of the Constitution of 1874 would lead to absurdity and a contradiction between different parts of the amendment because later on in the same section a proviso is inserted allowing cities of the first and second class to issue bonds for the payment of any indebtedness existing at the time of the adoption of the amendment, and for other purposes enumerated therein. The court expressly stated that the expression, “present existing indebtedness,” and the expression, “indebtedness existing at the time of the adoption of the Constitution of 1874,” mean precisely the same thing. After a comprehensive and exhaustive discussion of the question, the court concluded by holding that the later amendment called No. 15 did not repeal the earlier amendment called No. 11 and that both must be retained as a part of the organic law of the State. Having reached the conclusion that the expression, “indebtedness exist-, ing at the time of the adoption of the Constitution of 1874,” meant the same as the phrase, “present existing indebtedness,” the court held that there was no implied repeal of the bond-issuing clause in the amendment adopted at the general election held in 1924 by the amendment adopted at the general election in 1926 for the reason that, as construed by the court, there was no conflict in the two clauses of the amendments with regard to the issuance of bonds, and it necessarily followed that the later amendment gave cities of the first and second class power to issue bonds for the improvements enumerated therein in addition to the power conferred by the earlier amendment to issue bonds to pay debts outstanding at the time of the adoption of the amendment.
Consequently, we are of the opinion that the people by the adoption of amendment No. 11 at the general election in 1924 intended to prevent the further issuance of bonds by counties, cities, and towns except for the payment of indebtedness existing at the time of the adoption of the amendment; and this, by necessary implication, repealed all former amendments looking to the issuance of bonds by counties, cities or towns. Under the views we have expressed, the amendment under consideration in this case and under which the county court was acting has been repealed by implication by the later amendment as pointed out above, and we may add that this leaves amendment No. 3 relating to the annual road tax of three mills in full force and effect.
It follows that the decree of the chancery court was correct, and must be affirmed. | [
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Mehaffy, J.
The appellant, Owosso Manufacturing Company, is a corporation engaged in the manufacture and sale of lumber and other wood products, with its plant and principal place of 'business located at Benton, Saline County, Arkansas. In connection with its manufacturing plant, it operates a veneer mill. Adjacent to the veneer department is a log yard, where gum logs and other hardwood logs are unloaded from flat cars and stacked on the yards preparatory to being tansferred to a concrete vat, containing a hot solution in which the logs are soaked before they are worked up into- veneer material. The walls of the vat are something like 2% feet above the level of the ground. The logs are handled by means of a stationary derrick with a swinging boom or hoist from which a wire cable equipped with tongs for hooking- logs is suspended. The logs are brought to the mill on cars and unloaded from the cars by means of the derrick and placed on the mill yard in stacks about 15 feet high and 40 or 50 feet long. In transferring the logs to the vat the tongs are hooked into each end of the log, the log is picked up by the hoist and deposited in the vat, and the tongs are then released. One man operates the hoist by means of steam power, another man hooks the tongs into the logs and another man releases the tongs when the log is put into the vat.
Appellee’s intestate, J. J. Drennan, at the time of his injury and death, was employed by appellant as a tong hooker. His duties were to hook the tongs into the logs, and this required his being on and about the log pile going- from one side of the pile to the other, for the purpose of hooking the tongs into each end of the log. On the 5th day of December, 1929, Drennan was engaged in his duties hooking tongs into logs, and, -while standing on the ground, between the log pile and the concrete vat, where he had gone to get hold of the tongs to' fasten them into a log-, in the performance of his duty, he was crushed by a heavy log rolling down from the stack and pinning him against the vat. An employee named Mason was working with Drennan, Mason’s duties being to unhook the tongs from the logs after they had been put into the vat. The regular way that Drennan and Mason had been accus tomed to take the logs from the stack and put them in the vat was to take the logs from the top o(f the stack first and gradually work down to the bottom. On the morning! Drennan was injured, his foreman, Meyers, told Drennan and Mason to clean up the logs along the vat, to clean that up and get that back out of the way, malee a passageway next to the vat. The logs were piled down •against the vat wall, so that there was no passage between the vat and the pile of logs, and Meyers, the foreman, directed them to make a passageway next to the vat, between the vat and the stack of logs; he told them to clear up the logs next to the vat. While Drennan and Mason were engaged in obedience to the orders of the foreman, Meyers, and had taken up five or six logs right next to the vat, as the foreman had told them to do; they had taken the logs next to the vat on the ground so there was a space on the ground to walk between the stack of logs and the vat, and the logs fell on Drennan, crushed him and killed him. The log pinned him to the vat, and then a second log rolled down and struck him across the head and shoulders. When the first log struck him, he only halloed ‘ ‘ Oh, ’ ’ as the second log rolled down on him, he crumpled over the first log and threw up his hands, and the second log crushed him on the first log. This happened about five or ten minutes after Meyers had given the order to remove the logs next to the vat. After the log had fallen on Drennan, the tongs were hooked into the logs and they were raised off him. Drennan was then carried to the south side and laid down, he was alive and breathing; they put him in a car and started to town with him, and he was still alive at that time; he was alive and breathing when they met the ambulance; this was about a mile from the plant. The logs that were stacked on Wednesday before Thanksgiving were stacked crooked; they were stacking them late in the afternoon, the boss was in a hurry, wanted the cars unloaded that night and in letting them down they would do it quickly, and in that way they were piled crooked and uneven.
Drennan was 30 years of age. When Drennan was not engaged at work of this character, he farmed; he was a good worker, a good citizen and sober man; he had worked off and on for the Owosso Manufacturing Company for something like seven years; he worked part of the time each year; part of the time he hooked tongs and part of the time he was handling lumber; did various kinds of work for six or seven years. He left surviving him a widow and three small children. He supported his wife and children during- his lifetime, was in good health, a man of good character, treated his wife and children well, had no expensive habits, and spent his earnings on his family. He had bought and paid for his home. His widow was 27 years old.
The appellant did not introduce any testimony in the case, and the evidence of Mason, the only person who was with Drennan at the time of liis death, testified to the foreman, Meyers, giving the order and testified that at the time of his injury Drennan was engaged in the work in obedience to- the orders of Meyers. Meyers did not testify, and the evidence of the order having been given and Drennan obeying- it is without dispute.
The case was submitted to the jury, and a verdict of $15,000 was rendered, and judgment was entered for that amount.
This appeal is prosecuted to reverse the judgment of the circuit court.
Appellant insists that the testimony was not sufficient to support a finding of negligence against it, and that the undisputed testimony presents a clear case of assumption of risk arising from obvious working conditions and obvious dangers to wMch appellee’s intestate voluntarily exposed himself. The case of Emma Cottonseed Oil Co. v. Hale, 56 Ark. 232, 19 S. W. 600, is cited and relied on. In that case the question of obeying the order of a. superior was not involved. The court announced the general rule as to assumed risk and reversed the case because the trial court gave instructions which this court said wére ambiguous and misleading*. Tbe question involved in this case was not discussed. Tbe next case appellant cites is tbe case of C. O. & G. R. R. Co. v. Jones, 77 Ark. 367, 92 S. W. 244, 4 L. R. A. N. S. 837, 7 Ann. Cas. 430. In that case this court said, after discussing the general rule in England and this country: “But plaintiff in this case exposed himself to tbe danger in obedience to; an order of tbe foreman. As tbe danger was brought about by tbe negligence of tbe foreman, before it can be said, as a matter of law, that tbe plaintiff assumed the risk thereof by tbe mere fact that be went ahead with bis work, it must be shown that when be did so be knew and appreciated tbe danger to which be exposed himself by doing tbe work. But, as plaintiff was busily engaged in work which required bis attention, we think it was open for tbe jury to say that be did not know of or fully appreciate tbe danger, and that therefore he did not, by continuing at work, assume tbe risk of injury to which be was exposed by tbe carelessness of tbe foreman. * * * The order of tbe foreman to push tbe bent over carried with it an implied assurance that tbe act could be done with reasonable safety, for it is the duty of tbe master or bis representative to use due care, and not to order the servant to perform an act that be knew to be unnecessarily dangerous. Tbe servant has tbe right to rely upon the judgment of tbe master unless tbe danger is so obvious that no prudent man would incur it under like circumstances.”
Tbe next case relied on by appellant is Neimeyer Lumber Co. v. Watson, 134 Ark. 491, 204 S. W. 310. That case does not discuss tbe question involved here. Appellant next cites and relies on tbe case of Brinkley Car Works & Mfg. Co. v. Lewis, 68 Ark. 316, 57 S. W. 1108. That case does not discuss tbe question of a servant acting in obedience to tbe order of a superior. That case of Ark. Cotton Oil Co. v. Carr, 89 Ark. 50, 115 S. W. 925, does not discuss the question of acting in -obedience to an order of a superior. The court there held that there was no evidence of the negligence of the master, and that the servant under the facts in that case assumed the risk. The case of Francis v. Arkadelphia Milling Co., 153 Ark. 236, 239 S. W. 1067, is cited 'by appellant, but that case does not discuss the questions here involved. There was no question of acting under orders of a superior, but the court simply announced the general rule of assumption of risk.
Appellant says that the case of Temple Cotton Oil Co. v. Skinner, 176 Ark. 17, 2 S. W. (2d) 676, is not in 'conflict with its contention in this case. In the Skinner case the court discussed the cases of Ark. Cotton Oil Co. v. Carr and Francis v. Arkadelphia Milling Co., referred to and relied on by appellant and numerous other cases, and held that the trial court in the Skinner case properly left the question of assumption of risk to the jury as a matter of fact to be determined by it. There was no question in the Skinner case of a servant acting under the order of the master.
Appellant next calls attention to- the case of Ark. Short Leaf Lbr. Co. v. Lattimore, 158 Ark. 308, 250 S. W. 28. The judgment in that case was affirmed by this court, and the court in discussing the instruction said: “We do not think the instruction was erroneous. It submitted to the jury the question of the negligence of the defendant in directing the plaintiff to work in the fuel room with light from a lantern instead of from electricity. ’ ’’ In the recent case of Ward Furniture Mfg. Co. v. Weigand, 173 Ark. 762, 293 S. W. 1002, cited by appellant, we did not discuss the question of the servant acting in obedience to the master’s order. That question was not involved.
The law is well settled in this State that when an employee enters the service of his employer, he assumes all of the risk ordinarily incident to the 'business. He assumes all the risk and hazard ordinarily incident to the business, and whether the risk was usual or ordinary or not, if it were obvious or plaintiff knew of and appreciated the danger, he would assume the risk. This court has many times announced this doctrine, and it is well settled in this State, but it is thoroughly well settled also that an employee does not assume the risk or hazard caused by the negligence of the1 master. The servant has a right to rely on the judgment of the master unless the danger is so obvious that no prudent man would incur it under like circumstances. C. O. & G. R. Co. v. Jones, 77 Ark. 367, 92 S. W. 244 ; Ault v. McGaughey, 173 Ark. 322, 292 S. W. 359.
One of the first duties of the servant is obedience. “It is a fundamental of the relation of master and servant that the servant shall yield obedience to the master, and this obedience an employee may properly accord even when confronted with perils that otherwise should be avoided. In any case, but more plainly when a command is sudden and there is little or no time for reflection and deliberation, the employee may not set up his judgment against that of his recognized superiors; on the contrary, he may rely upon their advice, assurances and commands, notwithstanding many misgivings of his own. It by no means follows that because he could justify disobedience of the order he is barred .off recovery for injuries received in obeying. He is not required to balance the degree of danger and decide whether it is safe for him to act, but he is relieved in a measure of the usual obligation of exercising vigilance to detect and avoid danger. Ordinarily, he may assume that the employer has superior knowledge and rely thereon, especially when the act is one that could be made safe by the exercise of special care on the part of the employer. The employee may assume that such care will be taken. Again, it is a psychological truth that employees form a habit of obedience that overcomes independent thought and action, depriving them of power to exercise intelligence that otherwise would protect them.” 18 ft. O. L. 655, et seq.
According to the evidence in this ease, Drennan, the deceased, had been working for the Owosso Manufactur ing 'Company part of the time each year for about seven years. During that time, he was of course required to obey the orders of the master, and, as said by many authorities, formed the habit which overcame the independent thought and action, and therefore when the foreman ordered him to clear the passageway and take the logs out next to the vat, he evidently did it without hesitation, relying on the superior knowledge of his master. He might have known it wias dangerous, he probably did know it, but the master had told him to do' it. that way, and he had a right to obey the order of the master and to' rely on the judgment of the master, unless the danger was so1 obvious that no prudent man would incur it under like circumstances.
“He obeyed that instinctive impulse to follow the direction of his superior which is the characteristic of a faithful, resolute and loyal servant, and his conduct is entitled to be viewed in the light of reasonable charity.” Sawyer v. Rumford Falls Paper Co., 90 Me. 354, 38 Atl. 318, 60 A. S. R. 260.
No case decided by this court, so far as we know, has expressed a view contrary to these decisions, and, while the servant assumes the ordinary risk of his employment, he has the right and it is his duty to obey the orders of his superior unless the danger is so obvious that no prudent man would obey them.
“While there may be cases disclosing such manifest danger to the employee that the court may direct a non-suit or a verdict for the employer, it generally is held to be for the jury to siay whether the employee in acting-pursuant to orders or assurances, knew and appreciated the peril. The tendency of the modern cases is to permit a recovery unless the employer’s direction calls for nothing less than recklessness on the part of employee, leaving no ground for difference of opinion as to the peril of acting pursuant thereto.” 18 E. O. L. 659.
The question whether a servant doing a thing in obedience to orders of his superior assumes the risk is a question for the jury unless the danger is so apparent that a prudent man under the circumstances would not obey the order. In this case we think it was a question for the jury. The order was given. About that there is no dispute, it is mot denied by appellant.
The appellant next insists that the court erred in giving and refusing instructions. We have carefully considered all the instructions, and have reached the conclusion that the instructions as a whole correctly submitted the issues to the jury.
The issues having been submitted to the jury under proper instructions, the judgment of the circuit court is affirmed. | [
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Minor W. Millwee, Justice.
This is a suit by appellant, F. D. Bolfe, against appellees, Bert Johnson and wife, Lucy Johnson, to require specific performance of an alleged oral contract to convey 160 acres of land in Cross County, Arkansas. This appeal is from a decree denying the relief sought by appellant and dismissing his complaint for want of equity.
Appellees reside in North Little Bock, Arkansas, and the 160-acre farm in Cross County was formerly owned by Lucy Johnson’s father. At the time of the transactions here involved, Lucy Johnson owned an undivided one-half interest in the lands, Bert Johnson owned an undivided one-fourth interest, and one-fourth interest was held by them as an estate by the entirety.
Appellant lives at Wynne in Cross County. On February 3, 1948, he drove to Little Bock with George W. Johnson, uncle of Lucy Johnson, and J. H. Parker. They stopped at the home of appellees for a few minutes but Bert Johnson was at the Bock Island Depot where he was employed. According to the testimony on behalf of appellant, he had tried to purchase the farm on a previous visit and Lucy Johnson told him on both occasions that she wished her husband would sell the place and whatever-he did about it would be satisfactory with her. This was stoutly denied by witnesses on behalf of appel-lees who testified that appellant did not mention the sale of the place to Lucy Johnson on either of the visits. Mrs. Johnson stated that she had never discussed the sale of the place with appellant and for sentimental reasons did not want to sell the farm.
After the short visit at the home of appellees, appellant and his companions went to Bert Johnson’s office where a sale of the farm was orally agreed upon between appellant and Johnson for $7,000 and appellant delivered a $1,000 check to Bert Johnson with the balance of the purchase price payable when the abstract was completed and the title approved.
There is also a sharp dispute in the evidence as to whether there was a delivery of possession of the land to appellant. At the time of the alleged sale the farm was in the possession of appellees’ tenant, Andrew Wright. Appellant testified, and Bert Johnson denied, that appellant was to have immediate possession of the land before completion of the sale contract. Appellees’ contention on this issue is supported by the testimony of George W. Johnson, who testified on behalf of appellant, that possession was to be given when the abstract of title was made.
Upon his return to Wynne, appellant represented to Wright that he had bought the place and on February 5, 1948, demanded $1,200 rent in advance for the year 1948 which Wright paid. Appellant, and Wright also entered into a written lease contract on the same day giving Wright the option to purchase the farm for $10,000.
On February 16, 1948, Bert Johnson wrote appellant that he was unable to persuade his wife to agree to the sale and that she had refused to accept the $1,000 check or sign a deed to the place. Bert Johnson had previously written George W. Johnson of Mrs. Johnson’s refusal to sell the place and had advised him to hold up the making of the abstract which he had asked George W. Johnson to have made.
We have repeatedly held that before a court of equity may grant specific performance of a parol contract to convey land, the evidence of such agreement must be clear, satisfactory and convincing. Meigs v. Morris, 63 Ark. 100, 37 S. W. 302; Walk v. Barrett, 177 Ark. 265, 6 S. W. 2d 310. It is well settled that the payment of the purchase price alone is not sufficient part performance to take the contract out of the statute of frauds. Starrett v. Dickson, 136 Ark. 326, 206 S. W. 441; Fryer v. Mabin, 158 Ark. 579, 250 S. W. 877. We have also held that before delivery of possession of the land to the vendee under an oral contract of purchase will take the contract out of the operation of the statute, such possession must be taken under the contract and pursuant to its provisions. Moore v. Gordon, 44 Ark. 334; Phillips v. Jones, 79 Ark. 100, 95 S. W. 164, 9 Ann. Cas. 131. See, also, article in 1 Ark. Law Review 269.
Where the alleged purchaser is already in possession as tenant and merely continues in possession after making the contract, it does not amount to part performance sufficient to take the case out of the operation of the statute. Ashcraft v. Tucker, 136 Ark. 447, 206 S. W. 896. As was said in Rugen v. Vaughn, 142 Ark. 176, 218 S. W. 205: “This court has held that possession to have the effect to take the ease out of the statute must be exclusive, evincing the birth of a new estate, and distinguished from the continuation of an old one; and must not be referable to an antecedent right.” As previously indicated, the evidence on the question of change of possession is in hopeless conflict. The lands were already in the possession of appellees ’ tenant, and it would seem unusual for the parties to have agreed that the purchaser should have possession before the abstract of title was even completed and before he had approved the title and paid, or offered to pay, the balance of the purchase money. It is doubtful from the testimony that such agreement was entered into between appellant and Bert Johnson and Lucy Johnson did not participate in the making of such agreement. In the absence of a delivery of possession to appellant, the payment of a part of the consideration was not sufficient' to authorize a decree of specific performance.
It is also clear from the testimony that at the time of the alleged agreement between Bert Johnson.and appellant, Lucy Johnson knew nothing about the terms or conditions of the alleged contract. However, appellant insists that she is estopped to rely upon the statute of frauds or to urge the invalidity of the sale under our decision in Williams v. Davis, 211 Ark. 725, 202 S. W. 2d 205. In that case the wife, who owned the land, wrote letters to the purchaser which set out the price and terms of the proposed sale and also contained the acceptance of the offer made by the purchaser. It was undisputed that she had full knowledge of the negotiations leading up to the agreement which was made with her knowledge and consent and we held that she was estopped to assert that she did not know she owned the land. Here the evidence is in sharp dispute as to whether Lucy Johnson ever acquiesced in the proposed sale made by her husband.
The burden was upon appellant in the case at bar not only to prove the oral contract by clear and convincing testimony but also to show that there had been sufficient part performance of the alleged contract to take it out of the operation of the statute of frauds. We cannot say that the chancellor’s holding, that appellant did not meet the burden thus placed upon him, is against the weight of the testimony.
The decree is accordingly affirmed. | [
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George Rose Smith, J.
This suit to quiet title to eight lots in Little Rock was brought by tlie appellee Sanders against the appellants, W. P. and Eunice M. Wilson, and others. At the trial the appellants offered no defense on the merits, their only contention being that the case should be dismissed because another action involving the same cause was pending in the same court. The chancellor rejected this plea and entered a decree quieting title in Sanders.
It appears that in 1946 Wilson paid $75 for a quitclaim deed to these lots. At that time the property had been sold to the State and to three improvement districts for nonpayment of taxes and assessments totaling about $5,000. The owner’s time for redemption from one of the districts had expired. In May of 1946 Wilson brought the suit that is now urged as a bar to the present proceeding. The complaint, which was signed by Wilson pro so, asserted that the titles acquired by the districts were actually mere liens against the property. The plaintiff did not seek to redeem the property nor offer to pay the delinquencies. The complaint asked the court to determine the interests of all concerned and to order a sale of the lots and a distribution of the proceeds.
Sanders was not a party to that suit, as he had not then acquired any interest in the lots. One defendant, an improvement district, filed an answer disclaiming any title to the lots. A second defendant, the grantee of another district, filed a motion to make the complaint more definite. With no issues having been joined the suit lay dormant for more than three years.
In June of 1949 Sanders brought this action to quiet title. He shows that in March of that year he bought the lots from two of the districts for $2,375. While the suit was pending he acquired the title held by the grantee of the third district and of the State. The chancellor adjudged Sanders’ title to be superior to Wilson’s and therefore granted the relief prayed.
Sanders advances several grounds for affirmance of the decree. He says first that a plea based upon the pendency of another action can be sustained only if the plaintiffs and the defendants occupy the same positions in bQth cases. Since Wilson is the plaintiff in the first case and is the defendant in this one, it is argued that this transposition of the parties is fatal to Wilson’s plea in abatement. That, however, is not the law in this State. Our statute refers simply to “another action pending between the same parties for the same cause,” without mentioning their respective roles in each case. Ark. Stats., 1947, § 27-1115. We have upheld a plea of this kind when the parties ’ relative positions in the two cases were reversed. Board of Directors of St. Francis Levee List. v. Redditt, 79 Ark. 154, 95 S. W. 482.
It is also urged by the appellee that the issues in the two cases are not the same. This contention is well taken. What the statute requires is that the two suits be “for the same cause,” and our decisions have enforced this requirement. In Garabaldi v. Wright, 52 Ark. 416, 12 S. W. 875, one partner sued the other for a dissolution of the partnership and a settlement of their affairs. The defendant later sued the plaintiff in a different court for conversion of part of the property involved in the first case. In stressing the need for an identity of issues we said: “If the objects of two suits are different, they may progress at the same time, although the thing about, or in reference to which, they are brought, is the same in each case.”
That opinion is controlling here. Wilson’s 1946 complaint was designed to obtain a sale upon the theory that liens only were involved. The present complaint sought to quiet Sanders’ title upon the theory that the improvement districts had acquired title rather than mere liens. The objects of the two suits are entirely different. Furthermore, this dilatory plea was not the most appropriate remedy available to Wilson. If he really wanted his own case to be tried and was not merely seeking to delay an adjudication on the merits, he was authorized by § 27-1305 to ask that the cases be consolidated on the ground that they were “of like nature or relative to the same question. ” He did not request such a consolidation; instead he insisted that Sanders’ snit he dismissed because his own distantly related case had been pending for over three years with no apparent effort on his part to bring it to trial. We affirm the chancellor’s 'action in overruling this plea. | [
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Mehaeey, J.
The appellant inherited from her father an undivided one-eighth interest in 267 acres of land in Stone County, Arkansas. The father with appellant and other children of his lived on the land at the time of and prior to his death, which occurred in 1919. One hundred and sixty acres of said land was occupied as a homestead. Appellant was a minor when her father died and L. G. Hopper was appointed her guardian, and, as such guardian, made application to the Stone County probate court for an order to sell the undivided interest of appellant and also the undivided interest of her sister, Ruth Hopper, who was also a minor. The application of the guardian for an order to sell the interests of the minors stated that other heirs had already sold their interest. Ruth Hopper, one of the minors, was the wife of L. G. Hopper, the guardian. The guardian stated in his application to the probate court, that the lands were going down by the fencing being bad, the bushes growing up, and that the two minor heirs were not financially able to keep them in repair and pay taxes on same, and that the rents of the same will not make the repairs and pay taxes; that Ruth Hopper is a married woman and needs her small interest to help make a start for herself; that Laman Dodd cannot alone rent the lands nor keep same up together with taxes, and that the money she would obtain from, her interest would be worth more to her upon interest than being in said lands. The guardian prayed in his application that interests of the minors be sold for reinvestment and for said Laman Dodd’s maintenance and education. The court made an order to sell and the guardian sold said minor’s interest which included the homestead. This action was begun by appellant in the Stone Chancery Court to set aside the order of sale, the sale, and the deeds made and prayed that all these be declared void, and asked for an accounting and that she be given judgment and for other relief.
The chancery court rendered a decree dismissing plaintiff’s complaint and declaring all proceedings of the probate court legal.
This appeal is prosecuted by the minor to reverse said decree. Neither the application nor any order of the court shows that the land was the homestead of the minor. There is nothing to show that there were no debts. There is no reason shown either in the application or elsewhere of any necessity for selling the homestead. There were 107 acres besides the homestead, and so far as the record shows there may have been personal property. The petition for an order to sell states that Laman Dodd cannot alone rent said lands nor keep same up together with taxes, and that the money she would obtain for her interest would be worth more to her upon interest than being in said lands. Of course Laman Dodd could not alone rent the lands and keep' them up. This was the business of the guardian and not of the ward who was only 16 years of age. The sale of the minor’s homestead made in the manner shown by the record in this case is void. However, appellee relies on § 5028 of Crawford & Moses’ Digest, and contends that the judgment of the probate court is conclusive save upon direct appeal.
This court has said: “But we do hold that an essential requirement of the statute in regard to sale of a minor’s land cannot be entirely omitted and disregarded.” Mobbs v. Millard, 106 Ark. 563, 153 S. W. 821.
“As to the other ground of attack that it nowhere appeared from the order of the court that there were no debts due and unpaid by S. H. Collins at the time the order of sale was made, it may be said that this omission would be fatal to the validity of the sale upon the authority of the cases of Beakley v. Ford, 123 Ark. 383, 185 S. W. 796 ; Ex parte Tipton; 123 Ark. 389, 185 S. W. 798, and Rushing v. Horner, 130 Ark. 21, 196 S. W. 468. But subsequent to the rendition of those opinions the General Assembly at its 1919 session, passed an act No. 263 entitled an act to render conclusive judgments and decrees of the probate court in guardian’s and administrator’s sales.” Collins v. Harris, 167 Ark. 372, 267 S. W. 781 ; Day v. Johnston, 158 Ark. 478, 250 S. W. 532.
The act of 1919 above referred to is § 5028 of Crawford & Moses’ Digest. That act provides: “That the finding and recital of the judgment or decree of the probate court authorizing and ordering such sale that the guardian or administrator was duly and leg-ally appointed and qualified; that the sale was conducted according to law; and that the facts set forth in the petition entitled the said guardian or administrator to make said sale, shall be conclusive, etc.,” but the judgment of the probate court does not recite any of these things. The record in this case shows no judgment or no action of the probate court except, there is indorsed on the application a statement that the petition is granted. If the judgment of the probate court had recited the facts above mentioned in its judgment, the judgment would have been conclusive, but, as it did not do this, the judgment is not conclusive.
The decree of the chancery court is reversed, and the cause remanded with directions to enter a decree in accordance with this opinion. | [
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DuNaway, J.
Appellee, Gladys McFarland, recovered judgment against appellant, Prescott Arkansas Telephone Corporation, in the amount of $2,398.40,'to-gether with interest, costs and attorney’s fees. Suit was brought under provisions of the “Fair Labor Standards Act,” 29 U. S. C. A., § 206-207, seeking recovery of amounts allegedly due on account of unpaid minimum wages and overtime pay to which plaintiff claimed she was entitled.
Appellant denied that appellee was entitled to minimum wages and overtime pay as provided by the “Fair Labor Standards Act,” for the reason that plaintiff was a switchboard operator in a telephone exchange of less than 500 stations and her employment was thus exempted from application of the Act by 29 IT. S. C. A., § 213 (a) (11). The defendant company further denied that twenty per cent or a substantial part of plaintiff’s working time was spent in performing administrative and clerical duties other than those of a telephone operator, as alleged by the plaintiff and which, if proved, would entitle her to tlie benefits of tbe Act, even if tbe telephone exchange in question was one of less than 500 stations.
After bearing oral testimony, tbe Chancellor found that tbe court bad jurisdiction of tbe parties and tbe subject matter in tbe cause; and further found that tbe plaintiff worked a substantial part of her time in a clerical capacity in addition to performing the duties of a telephone operator. Tbe court found that tbe defendant was indebted to tbe plaintiff for unpaid minimum wages and unpaid overtime compensation in tbe amount of $1,199.20, and 'for a like amount as liquidated damages.
On this appeal appellee has raised tbe question that tbe oral evidence heard by tbe Chancellor was not properly preserved, in that it was not approved and filed as a bill of exceptions within tbe time fixed -by tbe court, and consequently cannot be considered as a part of tbe record.
The cause was beard on November 15, 1949, and judgment was rendered on that date. No formal decree was entered until January 9, 1950, when a decree nunc pro tunc was entered as of November 15, 1949. By tbe terms of that decree appellant was given 120 days in which to file a bill of exceptions. A new term of tbe "Woodruff Chancery Court began on January 9, 1950.
As pointed out in tbe recent case of Johnson v. United States Gypsum Company, ante, p. 264, 229 S. W. 2d 671, tbe practice in each Chancery district as to tbe preservation of oral testimony is governed by special statute. Act 269 of the Acts of 1949 is controlling as to tbe Fifth Chancery District, from which this appeal originates.
In tbe Johnson case, supra, we construed Act 269 of 1949 and held that approval of tbe stenographer’s transcribed notes by tbe Chancellor is a prerequisite to treating such transcription as a bill of exceptions or as depositions. In § 3 of Act 269 it is provided that “. . . such approval must be given during tbe term or within the time fixed for such approval by tbe court.” In the Johnson case tbe court, at tbe beginning of tbe trial, directed the reporter to take down the testimony, transcribe it, and file it as depositions; and the decree contained a recital that when the transcribed testimony had been filed under the certificate of the official court reporter, it should become a part of the record in the case. We held this a sufficient reservation of power for the Chancellor to approve the testimony after expiration of the term.
In the case at bar, however, there was no such reservation of power. In fact the record reflects an affirmative statement by the Chancellor that no'such order as was present in the Johnson case was made in the instant case. The decree appealed from fixed 120 days as the time within which the bill of exceptions must be filed. This time ran from the date of the final decree, November 15, 1949, and not from the date of the nunc pro tunc order. Engles v. Oklahoma Oil & Gas Co., 163 Ark. 270, 259 S. W. 749. The time for obtaining- the Chancellor’s approval was fixed by the terms of the decree, and there was no reservation of power to approve the testimony after expiration of the term of court. The time allowed had expired before the transcript was presented to the Chancellor. Under the provisions of Act 269 we have no alternative but to sustain.the appellee’s motion to strike the transcribed oral testimony filed herein.
This evidence therefore cannot be considered and we may examine only the face of the record in reviewing the decree of the court below. No error appearing, the decree is affirmed. | [
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McHaney, J.
On May 30, 1928, the appellees, being directors of the First National Bank of Clarksville, Arkansas, in order to retain the deposit of appellant in said bank, executed and delivered to it their joint and several obligation or bond, guaranteeing that said bank would “at all times” pay on the order of appellant’s agent, Thompson-Sharyer Company, any and all sums on deposit therein. On November 9, 1929, appellant’s said agent drew a check on said bank for the balance of its account, approximately $2,700, and either that day or some two or three days later mailed it to appellant at Little Rock. The account was in appellant’s name, the check was drawn by it, or in its name by its agent, and all business with said bank was transacted in its name. The check was deposited by appellant to its credit in a Little Rock bank on the morning of November 15, 1929, and shortly thereafter, on the same date, it received information by wire that the Clarksville bank was closed, and the check was returned to appellant unpaid. Thereafter payment was demanded of appellees, which they refused, and this suit followed. They defended on the ground that appellant had failed to deposit the cheek in its bank in Little Rock for collection within a reasonable time after its receipt, and that the loss it sustained was therefore caused by its own negligence. They further alleged that, if'the check had been deposited and presented for collection in due course, it would have been paid. Appellee McWilliams further defended on the ground of his mental incapacity to make a contract—that he was non compos—and that he was therefore not bound on the bond. At the conclusion of the testimony, appellant, requested a directed verdict against all appellees, except McWilliams, which the court refused, and submitted the case to the jury on appellees’ defense of negligence in depositing the check, stating, in instruction No. 1: “And the principal question that'you will have to determine in this case is whether or not the failure of the plaintiff, if they did fail, to use due diligence in cashing the check of T'hompson-Sharyer 'Company sent to them, in apt time, or in reasonable time. If they were negligent in that respect and their failure to use due diligence in depositing the check was the cause of the loss here, then your verdict should be for the defendants. The burden is upon the defendants to establish that fact.” Appellant objected and excepted to this instruction. From a judgment on verdict for appellees this appeal is prosecuted.
The court erred in refusing appellant’s request for a directed verdict against all appellees, except McWilliams, and in giving the instruction above quoted. The court and appellees were under the mistaken belief that there was a duty resting on appellant to deposit the check within a reasonable time. There is such a rule as between drawer and drawee, else the drawee sustains all loss caused by the delay. Such a section may be found in our Negotiable Instruments Act (§ 7952, O. & M. Digest) as follows: “A check must be presented for payment within a reasonable time after its issue or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay.” Here, however, the drawer and the drawee are one and. the same person. Appellant was simply taking the money ont of one pocket to pnt it in another. If the money had been on deposit in the name of appellant’s agents, and they had drawn a check against their own account in appellant’s favor, then in an action by appellant against the agents under the facts presented by this case there might have been occasion to submit the question of appellant’s negligence in presenting the check for payment to the .jury. But we have no such case. By accepting the deposit, the First National Bank agreed to pay the checks of appellant, drawn against said account, and signed by its agent, in Clarksville, on demand. The bond executed by appellees guaranteed that the bank would do this “at all times.” The fact that appellee failed to present the check for payment in a reasonable time (assuming it to be a fact) did not relieve the bank of its obligation to pay on demand, nor did it discharge the bank’s bondsmen after insolvency of the bank, because they agreed and bound themselves that it should do so “at all times.”
It necessarily follows that a directed verdict should have gone against all appellees, except McWilliams, and judgment will be entered here for the amount of the check, $2,618.77, with interest at 6 per cent, from November 15, 1929. As to appellee, McWilliams, the judgment will be reversed and the cause remanded for a new trial, with directions to submit to the jury only the question of his mental capacity at the time of signing the bond. The court correctly submitted this question to the jury in instruction No. 2 requested by appellant, but the court did not require the jury to make a separate finding as to his mental capacity, and we cannot determine from a general verdict for all appellees what they based it on as to McWilliams.
Other questions are discussed in appellant’s brief. The question regarding the disqualification of the juror, Dickinson, will not arise again on another trial and need not be decided. Appellee, McWilliams, having the burden to prove his incompetency, will be entitled to open and close the case. Relative to the cross-examination of Dr. R. N. Manley, we think the court erred in refusing to permit counsel for appellant to cross-examine the doctor, in the manner sought, as the testimony was both relevant and competent. By putting the doctor on the stand as a witness to testify regarding appellant’s mental condition, the statutory privilege extended to physicians by § 4149, C. & M. Digest, is waived. M. & N. A. Railroad Co. v. Daniels, 98 Ark. 352, 136 S. W. 651 ; National Annuity Assn. v. McCall, 103 Ark. 201, 146 S. W. 125. | [
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Frank Holt, Justice.
The appellants, who are tax payers of the Danville school district, brought this action to contest and void a tax millage levy approved by the voters in a regular school district election held on the date fixed by law (March 15, 1973). The school directors, the superintendent of the school district, various election and county officials were made defendants (appellees). The appellants alleged numerous election irregularities including the allegation the school directors did not give notice of the election as is required by law; that, although other parties did publish a notice, such publication was an improper and inadequate instrument and not in conformity with the law requiring notice of the election in which the millage levy was voted upon. Furthermore, that the election was conducted by persons who were not properly selected as officials and who were directly interested in a favorable vote on the tax millage proposal. Also, that unqualified voters participated in the election and, therefore, all ballot boxes, including the absentee box, should be thrown out and the election voided. The trial court sustained a demur rer to the petition and refused to permit the original petition to be amended because the amendment was filed after the expiration of the statutory period of time to contest the election.
Appellants first contend for reversal that “[T]he petition as originally filed stated a cause of action for contest of an alleged tax levy and demurrer should not have been sustained.” Appellants, in support of their argument that the court erred in sustaining the demurrer to their petition, limit and ably summarize their first contention by stating:
In the first instance, the petition states acts of misfeasance and malfeasance of selecting and equipping of the required voting precincts by persons other than the election commissioners, nullifying and negating the school election to the extent that if no election had been held: and, secondly, the usurpation of the duties and responsibilities by others instead of election commissioners, designating polling precincts, and selecting of judges and clerks: thirdly, the permitting of individuals, who were not qualified voters and non-residents, to vote in the alleged absentee box, mixed, with votes in other districts, which destroyed the integrity of the box to such an extent as to throw out the entire box.
In William H. Jones v. Etheridge, 242 Ark. 907, 416 S.W. 2d 306 (1967), we said:
We have repeatedly held that a petition for contest of an election does not state a cause of action where it does not charge that any specified vote was illegally cast, or does not contain sufficient information which would identify any such illegal voter, and contain only generalities or conclusions of law to the effect that illegal votes were cast.
To the same effect is Wheeler v. Jones, 239 Ark. 455, 390 S.W.2d 129 (1965). When we apply the foregoing criteria to the case at bar, we quickly hold that appellants’ petition does not state a cause of action and was subject to appellees’ demurrer.
Appellants do not favor us with any argument that the election was invalidated because of improper or insufficient notice. Of course, an issue not argued on appeal is deemed waived. Sarkco v. Edwards Plan Service, 252 Ark. 1082, 482 S.W.2d 623 (1972).
Appellants next contend the court erred in refusing appellants’ amendment to their petition. We cannot agree. It appears undisputed that the amendment was proffered after the twenty days allowed for commencing the contest of the election. Ark. Stat. Ann. § 80-322 (Repl. 1960). It was not permissible to amend the original petition to now state a cause of action. To do so would in effect allow the appellants for the first time to assert a cause of action after the expiration of the twenty days. In. such a situation, appellants’ amendment is not permissible. Wheeler v. Jones, supra, Wilson v. Ellis, 230 Ark. 775, 324 S.W.2d 513 (1959).
Neither can we agree with appellants that the asserted delegation of duties and responsibilities by election commissioners constituted legal fraud which would invalidate the election. We do not construe appellants’ petition to assert actual fraud. Furthermore, in Wilson v. Ellis, supra, we recognized that ordinarily election regulations are mandatory before the election and directory after-wards, “and that the courts do not favor dis-franchising a legal voter because of the misconduct of another person.” A presumption attends every election that it is conducted according to the law and the presumption of validity cannot be overcome by mere charges of fraud or illegalities. Cain v. McGregor, 182 Ark. 633, 32 S.W. 2d 319 (1930).
Affirmed.
Jones, J., dissents. | [
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Ed. F. McFaddin, Justice.
A parcel of ground, which the attorneys stated to be worth fifty dollars, is the subject of this litigation, resulting .in a transcript of 285 pages and printed briefs of 217 pages. The learned Chancellor, after due consideration, prefaced his opinion with this observation:
“This case has developed into a big lawsuit over a small unimproved plot of ground in the Town of Hamp ton, Calhoun County, Arkansas. It is unfortunate that matters of this character cannot be adjusted between the parties without going into courts for settlement. No doubt the expenses of this litigation will far exceed the value of the property involved. ’ ’
Since the right to a decision of this Court in a case like this one does not depend upon the value of the property in litigation, and since the opinion in this case, though it involves a small parcel, may be a guide in some subsequent case involving extensive holdings, we give in detail the factual situation and legal principles necessary to a decision.
Appellees, as plaintiffs, filed suit in the Chancery Court to recover possession of a strip of land measuring 52 feet east and west and 175 feet north and south, and definitely described as ‘ ‘. . . commencing at the southeast corner of section 31 . . . on the township line, and running north along the section line between sections 31 and 32 a distance of 250 feet for the point of beginning; running thence north 175 feet, thence west 52 feet, thence south 175 feet, thence east 52 feet to the point of beginning. . . . ” After an extensive hearing the Chancery Court entered a decree for the appellees, and this appeal ensued.
I. Chancery Jurisdiction. Plaintiffs (appellees) deraigned title, and claimed to be the owners “and entitled to the full possession” of the parcel of land. The prayer of the complaint was “for possession of the above mentioned land,” damages and quieting the plaintiffs’ title. The answer of the defendants was not only a denial of the complaint but also prayed, inter alia, “that the title of the defendants be quieted and confirmed.” Appellants (defendants) now claim that the complaint was an action in ejectment and should not have been tried in the equity court. ’ In Goodrum v. Ayers, 56 Ark. 93, 19 S. W. 97, we said:
“Conceding that the plaintiff was not in possession of .the land, and for that reason could not maintain a suit to quiet title, it cannot avail the appellant; for he filed a cross-bill seeking to quiet his own title, and it gave the court jurisdiction of the entire controversy.” To the same effect, see Weaver v. Gilbert, 214 Ark. 800, 218 S. AY. 2d 353. So, whatever of equity jurisdiction might have been lacking in the plaintiffs ’ complaint was fully supplied by defendants’ prayer for relief.
II. Sufficiency of Plaintiffs’ Record Title. It has long been recognized, in cases like this, that the plaintiff must recover on the strength of his own title, whether the case be in ejectment or one to quiet title. In Chavis v. Henry, 205 Ark. 163, 168 S. W. 2d 610, we said:
“The plaintiffs (appellees) must recover on the strength of their own title, whether this case be considered as one in ejectment, or one to quiet title. For ejectment cases, see: Carpenter v. Jones, 76 Ark. 163, 88 S. W. 871; Wallace v. Hill, 135 Ark. 353, 205 S. W. 699, and cases collected in West’s Arkansas Digest, ‘Ejectment,’ § 9. For quieting title cases, see: Nice v. Pfeifer, 73 Ark. 199, 83 S. W. 951; Little v. Williams, 88 Ark. 37, 113 S. W. 340; Sanders v. Boone, 154 Ark. 237, 242 S. W. 66, 32 A. L. R. 461, and cases collected in AYest’s Arkansas Digest, ‘Quieting Title,’ § 10.”
Each side in this litigation claimed by mesne conveyances from Eli Cornish, as the common source of title. The plaintiffs claim both a record title and a title by adverse possession. AYe proceed, first, to examine plaintiffs’ (appellees’) record title — i. e., the title reflected by deeds duly recorded and definitely describing or including the parcel of land in question:
(a) In 1906 Eli Cornish conveyed to H. B. Dunn “. . . a part of the east half of the southeast quarter of section 31 . . . 52.50 acres”;
(b) In 1906 H. B. Dunn conveyed to C. L. Poole “. . . a part of the east half of the southeast quarter of section 31 . . . 52.50 acres . . .”;
(c) In 1906 C. L. Poole conveyed to Hampton Realty Company “. , . a part of the east half of the southeast quarter . . . section 31 . . .” 49.50 acres;
(d) In 1913 the Hampton Realty Company (an Arkansas corporation) conveyed to C. L. Poole (ancestor of plaintiffs) “. . . the remaining part of the said southeast quarter of the southeast quarter of said section 31, . . . not formerly sold and owned by C. 0. Blackstock, T. N. Means, J. B. Tomlinson, D. P. Wilson and the L. B. Pickle Estate and J. L. Hollingsworth, containing 12 acres, more or less . .
(e) In December, 1946, the county clerk executed a tax deed to C. I. Abbott on land described as “. . . Part Ey2 SE^ section 31 ... 6 acres ’ ’ and “. . . part SE14 SE% section 31 . . . 7.50 acres . . and C. I. Abbott conveyed to appellees under this same description;
(f) Appellees have for many years paid taxes on . . Part SEi4 SE14 section 31, 20.13 acres.
The foregoing is the record title of the appellees from Eli Cornish, the common source of title, it being remembered that the appellees are the heirs of C. L. Poole. As to each of the conveyances (a), (b), and (c), it will be observed that there was no definite description of any land. Each of these deeds was void for indefiniteness insofar as a record title is concerned. As to conveyance (d), the same rule — as to indefiniteness— applies, because there is nothing in the record before us to show what land if any was ever sold to or owned by some of the parties named as excluded— e. g. C. C. Black-stock and T. N. Means. As to conveyances in (e) and the tax receipts in (f) above, these are also void for in definiteness. Therefore, the plaintiffs (appellees) have no record title to the parcel of land in litigation, and cannot prevail on record title, either in an ejectment action or a suit to quiet title.
III. Sufficiency of Plaintiffs’ Claim of Adverse Possession. Even though the plaintiffs have no record title to the land, and even though their deeds do not constitute color of title, nevertheless if the plaintiffs had actual adverse possession of the premises — that is, actual, adverse, continuous, hostile, notorious, peaceable and exclusive possession of the land — for the statutory period, then they might prevail in the absence of record title; but, as stated in Topic II, supra, the burden is on the plaintiffs to show such possession. We therefore examine the evidence to see if they ever had such possession as is required to justify a decree in their favor.
The evidence discloses that when Eli Cornish conveyed to Dunn, and Dunn to Poole, and Poole to the Hampton Realty Company, in 1906, there was a fence along the south line of the southeast quarter of section 31, and also a fence running north and south on the east line of section 31. These fences constituted the east and south enclosures of the tract here involved. There were also fénces on the north and west sides of a larger tract of which the parcel here involved was a part. So we may assume that in 1906 the tract here involved was actually enclosed by a fence. But in 1910 the Hampton Realty Company opened a street on the east side of section 31 and took for the street a strip 27 feet wide off the entire east side of the parcel of land here involved. That strip has been used continuously for a street ever since 1910; so all that is left of the parcel of land in this case is a strip, 25 feet east and west and 175 feet north and south, lying west of the said street.
When the street was opened in 1910 the fences were removed from the east and sonth sides of the parcel, and ever since 1910 the tract remaining (i. e., 25 feet by 175 feet) has been west of the street and has been unenclosed and unimproved. For a short time C. L. Poole used the said tract — across the road and north of his house — as a storage lot for his farm implements, but such use was non-continuous; at infrequent intervals boys played ball on the lot and in the road. The continuous actual adverse possession — as that term is used in the decisions — has not been exercised by appellees since 1906.
Therefore, we have a case in which the plaintiffs have neither a record title nor a title acquired by adverse possession, and are not entitled to prevail either in an ejectment action or in a suit to quiet title; and the Chancery Court was in error in quieting the plaintiffs’ (appellee’s) title.
IY. Appellants’ Rights. But because the plaintiffs (appellees) are not entitled to prevail is no reason that the defendants (appellants) are entitled to have their title quieted as prayed. In fact, we conclude that the defendants are entitled to only a small strip of the property here involved. The evidence shows that in 1905- Eli Cornish made a deed to Dr. Wilson, in which certain property was definitely described; that the east side of the property was marked with a rail fence; and that Dr. Wilson had a wire fence placed just east of the rail fence on the entire east side of the property. The title of Dr. Wilson passed by will to Mrs. Iszora Wilson, his wife, and by deed from her to Jack Thomason, one of the defendants.
Mrs. Iszora Wilson, the other defendant, testified that the Wilsons never intended to hold any property except what was enclosed by the wire fence. Appellants’ counsel conceded in the oral argument, and the testimony of appellants’ witnesses showed, that there is a strip 12 feet wide, lying east of the wire fence and west of the road. Under the testimony of Mrs. Iszora Wilson and Miss Sallie Lou Wilson, this 12 foot strip does not belong to the appellants. The deed from Eli Cornish to Dr. Wilson was color of title to what it described; but the testimony of Mrs. Wilson, as. to no claim beyond the fence, constituted a declaration against interest and a renunciation of any claim to property east of the fence; and the better view of the evidence is that the fence was 12 feet west of the west side of the road. In short, all the appellants can hold is the property enclosed by the wire fence.
CONCLUSION
We conclude that the decree of the Chancery Court should be reversed and the cause mmanded, with directions to dismiss the complaint of the-plaintiffs, and to quiet appellants’ title to the west 15 feet of the parcel here involved. As to the strip 12 feet wide lying west of, and adjacent to the street, neither party is entitled to prevail in the present state of the record, since the record title appears to be in Eli Cornish. The costs of both Courts are adjudged against the appellees.
For brevity, we entirely omit the township, range and county, pince no question is presented as to these.
As between the grantor and grantee in each such conveyance, evidence aliunde the instrument might be introduced in a proper suit to establish what lands were intended to be conveyed; but the case at bar is not such a suit for reformation.
See Moore v. Jackson, 164 Ark. 602, 262 S. W. 663, and cases there cited; Adams v. Edgerton, 48 Ark. 419, 3 S. W. 628; Smith v. Smith, 80 Ark. 468, 97 S. W. 439, 10 Ann. Cas. 622. See, also, Jones’ “Arkansas Titles,” § 248, et seq., and § 309.
In addition to cases previously cited, see Cooper v. Newton, 68 Ark. 150, 66 S. W. 867.
See Woodall v. Edwards, 83 Ark. 334, 104 S. W. 128; Morris V. Eagle, 94 Ark. 180, 126 S. W. 382; and Arkansas Portland Co. v. Lands, 179 Ark. 663, 17 S. W. 2d 281.
In Jones’ “Arkansas Titles,” § 1497, et seq., there is a chapter on adverse possession, which states in detail the substance of most of our numerous cases on adverse possession.
The claim is made by appellees that the use of the .street was permissive by C. L. Poole, lather than adverse to him. Even if we ignore the Hampton Realty dedication and plat, nevertheless the record shows that in 1928 C. L. Poole conveyed to J. D. Whitehead land North of the parcel here in suit, and in the said deed to Whitehead, C. L. Poole described the conveyed premises by reference to the “ . . . street running North on Section line between Sections 31 and 32 ... ” That street so referred to in the deed is the street in question here; so the heirs of C. L. Poole are estopped to deny the street as far as Whitehead is concerned; and no permissive use to the public has been shown. Rather there is evidence of a dedication and a public user.
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Leflar, J.
The plaintiff Hummel Plumbing Company (hereinafter called Hummel) was awarded judgment in the Chancery Court against defendant Wood for $581.79, the amount of a bill owed Hummel for installing a 3-inch water line and a 2-inch gas line into Wood’s commercial laundry. At the same time Hummel was allowed a statutory lien (Ark. Stats., §§ 51-601, 51-604) on Wood’s leasehold interest in the laundry premises to secure payment of the judgment. Wood appeals, asserting that .Hummel’s work was not done for Wood, but rather for Wood’s landlord, one O’Shea, or possibly for a general contracting firm, Schriver -and Son' (hereinafter called Schriver) which had previously built the laundry for 0 ’Shea. It is agreed that the only question presented by the appeal is whether the fact findings are contrary to a preponderance of the evidence.
When 0 ’Shea contracted with Schriver for the latter to construct the laundry building, 0 ’Shea already had an agreement with Wood that Wood was to lease and operate the laundry after it was built, and it was understood that the building should be constructed specially for that purpose. Wood visited the site frequently during the construction period and had opportunity to observe the work as it progressed. The 0’Shea-Schriver contract was a written one, with fairly detailed specifications attached to it. Hummel was sub-contractor for the plumbing work, and there is no suggestion of non-compliance on Hummel’s part with the terms of this subcontract. It was completed and Hummel was paid for the work done under it before the. present controversy arose.
When the construction job was nearly finished, Wood discovered that the water and gas lines installed were apparently insufficient for commercial laundry purposes, and he requested Hummel to install an additional 3-inch water line and 2-inch gas line. Hummel installed them, but no one paid for the extra work, and Hummel brought the present suit against both Wood and O’Shea for the amount of his bill. Wood and O’Shea answered denying liability, and also brought in Schriver as a party defendant on the theory that Schriver was liable for Hummel’s extra work as a part of what was to have been done under the original O’Shea-Schriver contract.
Most of the testimony at the trial was to the effect that negotiations for the extra work were altogether between Hummel and Wood. No testimony indicated af- fimiatively tliat either 0 ’Shea or Schriver gave Hummel any orders in regard to it. 0 ’Shea denied having authorized the extra work, and testimony was given on Schriver’s behalf that the construction job had been previously completed in full compliance with the original contract and specifications. There was testimony that Schriver, after Hummel commenced'the extra work, told Hummel explicitly that he (Schriver) would not pay for it, and that Hummel then stopped work -temporarily, but resumed it after getting in touch with Wood. One witness testified that Wood discussed with Hummel the time to be allowed Wood for paying the bill if he could not get ' anyone else to pay it.
As already stated, the Chancellor found for Hummel against Wood. He further found that O’Shea was not liable to Hummel, from which finding Hummel does not appeal; also that Wood was not entitled to recover over from Shriver. Wood’s appeal presents to us only the question whether the evidence supports the decree. In view of the testimony summarized above, we are unable to say that the Chancellor’s findings were contrary to the preponderance of the evidence. The decree of the Chancery Court is affirmed. | [
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J. Fred Jones, Justice.
This is an appeal by Dow Chemical Company and the City of Russellville, Arkansas, from a chancery court decree enforcing statutory materialmen’s liens filed by the appellees against the leasehold interest of Dow Chemical in land and improvements owned by the City of Russellville.
Most of the facts were agreed to by stipulation and they appear as follows: The City of Russellville sold industrial development bonds under the municipality and county development revenue bond law [Act 9 of 1960 (ex. session)] [Ark. Stat. Ann. §§ 13-1601 — 13-1614 (Repl. 1968)] and with the proceeds from said sale purchased land adjacent to Russellville in Pope County and leased the land to Dow Chemical Company over a period of years with option to purchase. The lease rentals to be paid by Dow Chemical were pledged to service the bonds. Upon retirement of the bonds, under Dow Chemical’s option to purchase, it had a right to purchase the property including the improvements thereon for the sum of $100. Dow Chemical went into possession of the property under its lease and employed Russco Corporation and Russco Builders, Inc. in the building of two manufacturing plants on the property. These apparent two separate corporate entities will hereafter be referred to in the singular, simply as “Russco.”
In the early part of 1972 Russco became unable to meet obligations and numerous liens for labor and materials were filed against the property, and numerous garnishments after judgments were filed against Dow Chemical and the City of Russellville. Russco had completed its work under its contract when the liens were filed and the judgments were obtained against it, but Dow Chemical and the City of Russellville were still indebted to Russco in the amount of $7,740. This amount still owed to Russco was far less than the amounts of the claims filed and judgments obtained against it. As a result of the liens and garnishments, Dow Chemical and the City of Russellville filed a bill of inter-pleader and deposited the amount still owed to Russco into the registry of the court.
A trial on the issues resulted in a decree adjudicating the amounts of the liens as valid claims against Russco but holding that the land and improvements were public property and beyond the reach of the statutory liens. The chancellor held, however, that the leasehold interest of Dow Chemical was subject to the claims of the lien claimants. The chancellor entered judgments for the lien claimants against Russco and decreed liens in favor of the lien claimants in the amounts of their respective judgments against the leasehold interest of Dow Chemical Company. The decree provided that if the judgments be not paid within 10 days that the leasehold interest of Dow Chemical be sold at public auction, with the proceeds from the sale to be used, after the payment of all costs and expenses of the sale, to satisfy the lien claimants pro rata with the excess, if any, to be remitted to Dow Chemical Company. The decree provided for a stay bond pending appeal to this court, and such bond was filed by Dow Chemical. The appellants contend on this appeal that the chancellor erred in holding that the liens attached to the leasehold interest of Dow Chemical.
Ark. Stat. Ann. § 51-601 (Repl. 1971) provides that:
“Every . . . workman ... or other person who shall do or perform any work to or upon, or furnish any material, . . . for any building, erection, improvement to or upon land, . . . under or by virtue of any contract with the owner or . . . his . . . contractor or subcontractor, upon complying with the provisions of this act . . . shall have for his work or labor done, or materials, . . . furnished a lien upon such building, erection or improvement, and upon the land belonging to such owner or proprietor on which the same is situated. . . .”
By statute as well as case law in Arkansas, leasehold interests are subject to liens for materials and labor. Ark. Stat. Ann. § 51-606 (Repl. 1971); Meek v. Parker, 65 Ark. 367, 38 S.W. 900. Public policy, however, forbids the attachment of liens on public buildings and land for labor and materials furnished by contractors in the construction of public facilities. Plummer v. School Dist. No. 1 of Marianna, 90 Ark. 236, 118 S.W. 1011; Holcomb v. American Surety Co., 184 Ark. 449, 42 S.W. 2d 765. The parties in the case at bar seem to recognize the municipal immunity to liens on the fee title in this case. So, the question actually boils down to whether this municipal immunity extends to the leasehold interest owned by Dow Chemical Company.
The appellants argue that the leasehold interest of Dow Chemical is pledged toward the retirement of the $20 million bond issue and the enforcement of material-men’s liens against this interest would amount to enforcing liens against public property held by the City of Russellville. The appellees argue that Dow Chemical contracted with the City of Russellville that it would not permit liens to attach to the subject property, and that appellees stand as third party beneficiaries of that contractual obligation. They also argue that appellants are estopped from claiming immunity by virtue of their failing to comply with Ark. Stat. Ann. § 51-632 (Repl. 1971) which provides as follows:
“No contract in any sum exceeding $3,000 providing, for the repair, alteration, or erection of any public building, public structure or public improvement shall be entered into by the State of Arkansas, or any subdivision thereof, any ' county, municipality, school district, other local taxing unit, or by any agency of any of the foregoing, unless the contractor shall furnish to the party letting the contract a bond in a sum equal to the amount of the contract.”
Under the contract entered into between the City of Russellville as lessor, and Dow Chemical Company as lessee, it was provided that the lessor would obtain all necessary approvals from any and all governmental agencies requisite to the constructing and equipping of the project “and the project shall be constructed and equipped in compliance with all state and local laws applicable thereto.” The contract further provided that the lesseee shall, after occupancy of the premises under permits, approvals and authorities obtained by lessor, promptly comply with all valid statutes, laws, ordinances, orders, judgments, decrees, regulations, directions and requirements of all federal, state, local and other governments or governmental authorities, now or hereafter applicable to the leased premises. The contract provided, however, that the lessee should have the right to contest any such statutes, etc. and in such event compliance is to be postponed during the contest thereof, and:
“[E]ven though a lien against the leased premises may be incurred by reason of such non-compliance Lessee may nevertheless delay compliance therewith during contests thereof, provided Lessee, if required, furnishes Lessor reasonably satisfactory security against loss by reason of such lien and effectively prevents foreclosure thereof.”
Section 801 of the lease pertains to mechanic’s liens and recites as follows:
"After the completion of original construction and equipping, if any lien shall be filed against the interest of Lessor, Lessee, or the Trustee in the leased premises or asserted against any rent payable hereunder, by reason of work, labor, services or materials supplied or claimed to have been supplied on or to the leased premises at the request or with the permission of Lessee, or anyone claiming under Lessee, Lessee shall, within thirty (30) days after the receipt of notice of the filing thereof or the assertion thereof against such rents, cause the same to be discharged of record, or effectively prevent the enforcement or foreclosure thereof against the leased premises or such rents, by contest, payment, deposit, bond, order of Court or otherwise. Nothing contained in this Lease and Agreement shall be construed as constituting the express or implied consent to or permission of Lessor for the performance of any labor or services or the furnishing of any materials that would give rise to any such lien against Lessor’s interest in the premises.”
The lease contract further provides that commencing with the completion of the project, or when the lessee takes possession if prior to the completion of the project, the lessee agrees to indemnify and save lessor harmless against and from all claims by or on behalf of any person, firm or corporation arising from the conduct or management, or from any work or thing done on the leased premises during the term.
Section 1001 of the lease provides that if the lessee shall fail to keep the leased premises lien free, the lessor has the right to satisfy such lien and charge the amount thereof back to the lessor as rent or to exercise the same rights and remedies as in the case of default by the lessee in the payment of back rent.
Under section 1501 of the lease it provides that the lessee may assign the lease or sublet the leased premises but in such event, the lessee is to remain liable and bound by the contract.
Section 1601 of the lease provides that the leasehold estate is, and shall continue to be, superior and prior to the trust indenture and any and all encumbrances, mortgages, deeds of trust and trust indentures constituting or granting a lien on the leased premises or any part thereof or interest therein.
Section 1801 of the lease provides the lease may be terminated by the lessor if:
“This Lease and Agreement or the leased premises or any part thereof shall be taken upon execution or by other process of law directed against the Lessee, or shall be taken upon or subject to any attachment at the instance of any creditor of or claimant against the Lessee, and said attachment shall not be discharged or disposed of within ninety (90) days after the levy thereof.”
Mr. Jack Capps, acting plant manager for Dow Chemical, testified that Russco constructed the buildings involved in this case under a contract with Dow Chemical and that the contract was entered into through Dow Chemical’s Houston office. He said it was his understanding that Russco was to be paid out of the bond money raised for the construction of the plant. He said that bids were taken on the job and that Russco was not the low bidder but the contract was awarded to Russco because it was a local construction company. He said that Russco was not bonded and that Dow Chemical did not generally require a bond on their contracts. He said that so far as he knows Dow Chemical was never advised by the City of Russellville, or anyone else, that there was supposed to be a bond required of a contractor on the job. He said that Russco,had completely performed its contract.
Had the City of Russellville or its lessee Dow Chemical seen fit to comply with the mandatory provisions of § 51-632, supra, the difficulty presented in this case should never have arisen because under Ark. Stat. Ann. § 14-604 (Repl. 1968) a surety bond would have protected against the claims for labor and materials, and the provisions of the bond would have become a part of the contract. New Am. Cas. Co. v. Detroit Fid. & Surety Co., 187 Ark. 97, 58 S.W. 2d 418; Stewart-McGehee Const. Co. v. Brewster, 171 Ark. 197, 284 S.W. 53.
In the case of Nat’l Surety Corp. v. Edison, 240 Ark. 641, 401 S.W. 2d 754, the City of Texarkana in a similar situation failed to exact a bond from the general contractor. Apparently as a device to circumvent the statute, it created a private corporation to go through the procedure of letting a contract for the construction of buildings before transferring the property to the city. In that case, however, National Surety had issued a performance bond to a subcontractor protecting the subcontractor from claims arising out of an additional subcontract. The bonding company contended it was not liable for labor and material lien claims under the general performance bond since the bond was not for the perfor- manee of a public contract. We affirmed the liability of the bonding company and the concurring opinion pointed out as follows:
“[T]he appellant must have known that the bond was made in connection with construction falling within the scope of Section 1 of Act 351, cited in the bond. In the circumstances the provisions of § 14-604 ought to be read into the bond, just as would have been the case if the city had complied with the law.”
It would appear from the record in the case at bar, that the City of Russellville also attempted to circumvent the mandatory provisions of the statute by simply requiring its lessee, Dow Chemical, to assume all responsibility made mandatory under the statute for the protection of laborers and materialmen on municipal property not subject to materialmen’s and laborer’s liens. Such could have been the only reason and effect in requiring Dow Chemical to protect and hold harmless the city against unenforceable laborer’s and materialmen’s liens against public property. Dow Chemical agreed to assume this responsibility under its lease contract and apparently elected to forego a bond on its contractor. According to the testimony of Mr. Capps, Dow Chemical as a matter of practice simply does not require bonds of its contractors. There is no question that Dow Chemical’s leasehold interest was assignable by it.
In Grinnell Co. v. City of Crisfield, 287 A. 2d 486, cited by the appellants, the Rubberset Company owned land and sold it to the city under a contract providing that the city would build a plant thereon and lease the property back to Rubberset at a specified rental over a 20 year period, at the end of which Rubberset had an option to purchase the property. In that case the city contracted with Weidemuller Construction Company (without written approval of Rubberset) to erect the building on the property. Weidemuller entered into a subcontract with Grinnell for the installation of a fire protection system for the plant and when Grinnell was not paid for the materials it furnished, it filed a mechanic’s lien on the property. The trial court held that the subcontractor Grinnell had no recourse against the city, and also held that the interest of Rubberset was subordinate to that of the city and was not subject to Grinnell’s lien. The trial court sustained a demurrer filed by Rub-berset. In affirming the action of the trial court, the appellate court remarked as “significant” the fact that Rubberset was not a signatory to the construction contract, as required in the lease agreement, and the court in Grinnell cited from a previous case as follows:
“ ‘ * * *[A] mechanic’s lien ordinarily attaches to whatever interest the person responsible for the improvements has in the property.’ ”
The court in Grinnell seemed to place the emphasis on who was responsible for the improvements- or who was the employer of the contractor and as the appellees readily point out in the case at bar, Dow Chemical was the party responsible for contracting with Russco for the construction of the buildings involved in this case.
In the case of Tropic Builders, Ltd. v. United States, 475 P. 2d 362 (Supreme Court of Hawaii 1970) Len Company and Associates was the prime contractor on a government housing project. The Aloha Company was performing construction work for Sam Len. A subsidiary of Len referred to as “NADLQ” had a 55 year lease on the site from the United States Government, and upon completion of the project the ownership stock was transferred to the federal government. Tropic was a subcontractor under Aloha and when it was not paid for its services, it filed a mechanic’s lien against the interest of NADLQ and the improvements thereon. In the meantime NADLQ had merged into another corporate entity referred to as NCQ. The trial court held that Tropic had a valid lien against NCQ’s lease on the project site and its interest in the improvements thereon. NCQ, Len, and his surety appealed and. as assigned error contended that the mechanic’s lien could not be enforced against property belonging to the United States or in which the United States had any interest. In affirming the trial court the Supreme Court of Hawaii said:
"The judgment recognized the existence and enforceability of mechanic’s lien not on the fee simple interest of the United States but on the interest of NCQ, as successor to NADLQ, in the lease and leasehold improvements on the project site.
* * * The fact that the project site was owned by the United States in fee simple did not make NADLQ’s lease and NADLQ’s interest in the leasehold improvements immune from such liens. Basic Refractories v. Bright, 72 Nev. 183, 298 P. 2d 810 (1956); Crutcher v. Block, 19 Okla. 246, 91 P. 895 (1907).
W vr
It is stated in Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 388, 59 S. Ct. 516, 517, 83 L. Ed. 784 (1939), that the ‘government does not become the conduit of its immunity in suits against its agents or instrumentalities merely because they do its work.’ That statement was made with reference to a corporation organized under the authority of a Congressional act. It should apply with equal or greater force to a corporation organized under a state law relating to private corporations.”
In the Crutcher case, cited by the Hawaii Supreme Court in Tropic Builders, supra, the lien was against houses erected by Crutcher in a housing project on land owned by the United States Government under lease to Crutcher. In approving the liens in that case the Oklahoma Supreme Court said:
". . . Under the rule here adopted, it is immaterial that the legal title to the land in question is in the United States. The United States authorized the leasing of such land for townsite purposes, and by the terms of such a lease an estate is created. The territory and the general government are bound by their contracts the same as an individual, and it is only the estate held by the appellant that can be affected by this lien.
. . . where the government leases land for a term of years, such lease must be measured by the general law applicable to such instruments, unless exceptions affirmatively are made by the law itself. . . . ”
In 53 Am. Jur. 2d, § 44, at p. 557, is found the following:
‘The courts generally hold that, subject to the paramount title of the owner in fee and the conditions of the lease, a leasehold estate is subject to a mechanic’s lien for an improvement erected by or under a contract with the lessee. It has been so held even though the land is the property of a municipality or of the United States. Some statutes expressly provide that the lien extends to leasehold interests.” See also 57 C.J.S., § 17, Mechanic’s Lien.
We are of the opinion the chancellor did not err in holding that the materialmen’s liens involved in this case attached to the leasehold interest of Dow Chemical and in ordering the foreclosure of same.
The decree is affirmed. | [
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J. Fred Jones, Justice.
This is an appeal by the City of Jonesboro from a chancery court decree holding that the city was arbitrary in denying appellee Paul Arnold’s application to rezone his 11 acre tract of land within the city limits of Jonesboro from R-l to R-2 classification. On appeal to this court the city contends that the chancellor’s finding that the dty acted arbitrarily, capriciously and unreasonably in refusing the rezoning request, was contrary to the preponderance of the evidence. We do not agree with this contention.
It appears from the record that there are three classifications for residential zoning in the City of Jonesboro, and separate classifications for commercial zoning. It appears that R-l represents the highest and most desirable residential classification; that R-2 is the next highest classification and R-3 is the lowest residential classification. The R-2 classification permits apartment buildings while R-l is confined to single family dwellings. When land is taken into the city limits of Jonesboro, the R-l classification automatically attaches and the property remains in the R-l classification until rezoned by the city. It appears that commercial property is likewise classified in three categories as C-l, C-2 and C-3.
The 11 acre tract involved in this case is bounded on the west by Hester Street and on the south by Cherry Street. The record is not clear as to whether Cherry Street has been completely opened along the south boundary line of the property, but the property on the east is bounded by a drainage ditch which extends north more or less parallel with Hester Street for a distance of approximately two-thirds the length of the tract involved, at which point the drainage ditch curves to the northwest and continues as the northeast and north boundary line of the property until it is intersected at an angle by Hester Street. U.S. Highway 63 runs in a northwest-southeast direction on the northeast side of the drainage ditch, and the drainage ditch is traversed by a bridge from the north end of Hester Street to the highway.
There are three or four lots classified as R-l between the north end of Hester Street and the appellee’s property, but the remainder of the property immediately west of Hester Street and adjacent to appellee’s property is zoned R-3. The property north, east and northeast of the appel-lee’s property is zoned C-3. The property south of the appellee’s tract is still zoned R-l.
Appellee Arnold first submitted his application for rezoning to the Metropolitan Area Planning Commission. His application was approved and the rezoning wa's recommended by that body. The matter was then presented to the Jonesboro City Council and the application was denied.
Mr. Aubrey E. Scott, Chairman of the Metropolitan Planning Commission, testified that he is serving his sixth year on the Commission and the Commission approved Arnold’s request to rezone his property from R-l to R-2. He said he considered it to be in the best interest for future development of the city that the application be granted, because the property immediately east of Arnold’s property is classified as commercial, and the property across Hester Street immediately west of Arnold’s property is in an R-3 classification which is a less restrictive classification than the R-2 classification requested by Arnold. He said the property to the south of the Arnold tract is still in an R-l classification, and that it was automatically classified R-l when it was brought into the city limits.
Mr. Ralph Bang, another member of the Planning Commission, testified that in his opinion it would be to the best interest of the metropolitan area to re-classify Arnold’s property from R-l to R-2.
Mr. Roy Cooper, another member of the Planning Commission, and who is also engaged in general construction, testified that in his opinion the rezoning of Mr. Ar nold’s property as requested, would be in the best interest for the future development of Jonesboro. He said that insofar as the terrain of the property is concerned, it would support either apartments or residential or commercial.
The appellee Paul Arnold testified that he had owned the property involved for about 15 years; that all the property across the drainage ditch east and north of his property is commercial and he is seeking an R-2 classification in order to build an apartment building on his property. He testified that it would not be economically sound business practice to build one-family homes under the R-l classification requirements on his property immediately across Hester Street from an R-3 zone. He said that if, and when, Cherry Street is extended along the southern boundary of his property, it would divide his property from R-l classification south of his property.
Mr. Bill Bowers, superintendent of a construction company and member of the City Council, testified that he voted to deny the request for rezoning because through his past experience as street superintendent for the City of Jonesboro, he knew there was a very narrow wooden bridge across the drainage ditch at the north end of Hester Street, and that Hester Street would be the primary means of ingress and egress to and from the property involved. He said that the bridge had been remodeled but that people in the area had requested street humps in order to slow the traffic down over Hester Street; that it was his opinion that apartment buildings would create more traffic and that it was because of the traffic problem he voted to deny the petition.
On cross-examination Mr. Bowers testified that Hester Street is relatively a residential street but could be widened if someone would give the right-of-way for that purpose. He also admitted that since he had established his attitude in the matter, the bridge from Hester Street to the highway had been repaired and is now “pretty close” to two-way traffic.
Mr. Ralph Strickland, another, mertiber of the City Council, testified that because o! the petitions and attitudes of the people in the area, together with the traffic situation requiring speed humps, he just simpiy had to vote against rezoning the property from R-l to R-2. He said he did not feel that an apartment building on the land involved would be to the best interest of the city. He said that his constituents in the area expressed to him a feeling that to rezone the property would create traffic hazards and that he had not seen any specific plans as to street development or the size of apartment building Mr. Arnold was planning in the area. On cross-examination he admitted that the property east of the Arnold tract is zoned commercial, but he said that the drainage ditch between the Arnold property and the commercial property could act as a buffer between the two zones.
Bill Bowers, a practicing dentist in Jonesboro and a member of the City Council, testified that the reason he voted to override the recommendations of the Planning Commission was, first of all, the request had been presented to the Commission previously and had been denied. He said that by talking to people in the neighborhood he determined that a majority of the people who lived in the neighborhood felt it was a part of their neighborhood and did not want this land rezoned. He said that one of their objections was that rezoning would permit more people to live on the land, thereby increasing the traffic on the streets. He said that he was opposed to so-called spot zoning and that he considered Mr. Arnold’s petition to be a petition for spot zoning.
On cross-examination Dr. Bowers testified that he drove the streets in the area, “knocked on a few doors” and called on people who had asked him to look into the matter. He said that the people he talked to live in the area; that they have to use the existing streets for access to and from work, and that the bridge across the drainage ditch at the end of Hester Street creates a particular problem in handling the traffic. He said that he voted against installing speed humps on Hester Street because he does not believe in speed humps. Dr. Bowers testified on cross-examination “There are [traffic] problems all over this particular area and this was one primarily because of the construction at the end of Hester.”
In tht case of City of Little Rock v. Andres, 237 Ark. 658, 375 S.W. 2d 370 (1964), we set out the standard for review in rezoning cases as follows:
“If the chancellor’s finding to the effect that the authorities were arbitrary in not changing the zoning is supported by a preponderance of the evidence, the decree must be affirmed. City of Little Rock v. Garner, 235 Ark. 362, 360 S.W. 2d 116; City of Little Rock v. Henson, 220 Ark. 663, 249 S.W. 2d 118; City of Little Rock v. Joyner, 212 Ark. 508, 206 S.W. 2d 446.”
There is no question that the property involved in this case is bounded on the east, north and west sides by zoning classifications less restrictive than the R-2 classification requested by Arnold and recommended by the Planning Commission. We note also that none of the property owners in the area testified in the case.
In the case of Olsen v. City of Little Rock, 241 Ark. 155, 406 S.W. 2d 706, the landowner’s application for rezoning his property from two-family residential to “D” apartment use, was denied by the City Administrative Agencies and the chancery court on appeal. None of the property owners in the affected area testified in that case and in reversing the chancellor’s decree, we said:
“In a case of this kind the chancellor should sustain the city’s action unless he finds it to be arbitrary. No matter which way the chancellor decides the question, we reverse his decree only if we find it to be against the preponderance of the evidence. City of Little Rock v. Garner, 235 Ark. 362, 360 S.W. 2d 116 (1962).
# # *
That the proposed rezoning will not adversely affect the neighborhood is confirmed by the complete absence of any protest on the part of other landowners in the area. Such apparently universal acquiescence in the proposal is decidedly unusual in zoning cases. * # * It is fair to conclude that none of the neighboring property owners — the group who would suffer the greatest damage if the reclassification is contrary to the public interest — oppose the plaintiffs’ petition. Upon the record as a whole we are convinced that the weight of the evidence lies on the appellants’ side.”
It is apparent from the testimony of members of the City Council that their primary objection to rezoning the property is because of the additional traffic such rezoning would likely create, especially on Hester Street. The chancellor viewed the area involved in this case with particular attention to the traffic on the streets, as well as the bridge across the drainage ditch at the end of Hester Street, and we are unable to say that the chancellor’s decree is against the preponderance of the evidence.
The decree is affirmed.
Harris, C.J., not participating. | [
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Kirby, J.
Appellants, the beneficiary in the life insurance policy and the bank to which it had been assigned as collateral, brought this suit to recover the amount of the policy upon the death of the insured and, from a judgment on a directed verdict against them, prosecute this appeal.
The undisputed testimony shows that the policy, dated December 9, 1916, was issued on the life of the insured, the first payment of premium $20.50 covering a period of more than a quarter or until April 1, 1917. The policy was issued in consideration of the application, the payment in advance of said $20.50 as a first payment paying until April 1, 1917, with a grace period as provided “and the payment of all payments and calls required under the contract at or before the time when due and payable and during continuance of this contract.” It further provides: “The premiums due under this policy shall be due and payable annually, semiannually, or quarterly, at the option of the insured, and failure to pay same at maturity shall render the policy absolutely null and void and the same shall be forfeited without further notice of the action of the directors of this association, unless reinstated as provided herein. Payments shall be due January 1, April 1, July 1, and October 1, and until further action of the directors shall be at the following rates, etc.”
Premiums were paid on the policy to and including March 31, 1929, but no premiums were paid after that date. The insured died on September 14, 1929. Proof of death being made and liability on the policy being denied, the suit was brought.
Appellants contend that the court erred in holding that the insurance policy lapsed because of nonpayment of the premium due on April 1, and any premium thereafter, and in directing a verdict against them, insisting that the premium was not required to be paid quarterly in advance, and that the policy did not lapse until the end of the annual premium period.
It is undisputed that no premium was paid or offered to be paid or at all after the premium due on April 1, which was not paid, and that the insured died on September 14, 1929, after the expiration of the grace period for the payment of the April premium.
The policy expressly provides that payment shall be due January 1, April 1, July 1 and October 1, and the failure to pay same at maturity shall render the policy absolutely null and void and the same shall be forfeited without further notice, unless reinstated as provided, and expressly requires the payment of all payments and calls required under the contract “at or before the time when due and payable.” No provision is included in the contract about paid-up or extended insurance, and no contention is made that the insured attempted to exercise the option to pay premiums otherwise than quarterly. The failure to pay the quarterly premium due at maturity on April 1, or within the period of grace allowed therefor, rendered the policy void under its express terms without any further notice or action upon the part of the insurance company, and it is not contended that there was any reinstatement of it. It is also undisputed that the death of the insured occurred long after the expiration of the grace period allowed for payment of the quarterly premium at maturity due on April 1, and the policy having lapsed and become void because of such default, the court properly directed the verdict in favor of the insurance company.
We find no error in the record, and the judgment is affirmed. | [
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David Newbern, Justice.
This is an abuse of process case. It was brought by the appellee, Dr. Kemal Kutait, against the appellant, Union National Bank of Little Rock (the Bank). Dr. Kutait alleged the Bank was liable for malicious prosecution as well as abuse of process due to its unjustified action against him for $5 million alleging improprieties and dishonesty in a business relationship. The Trial Court directed a verdict on the malicious prosecution aspect of the claim, finding that the Bank’s action against Dr. Kutait was, although unsuccessful, commenced with probable cause. The abuse of process claim was tried, and a jury found in favor of Dr. Kutait. The Bank contends the evidence does not support an abuse of process judgment as there was no “process” issued subsequent to the complaint it filed against Dr. Kutait. We agree with the Bank’s argument, and thus we must reverse and dismiss the case.
The Bank’s suit against Dr. Kutait was filed August 7,1987, asserting (1) breach of a contract of guaranty on a loan to Leird Church Furniture Manufacturing Co. (Leird); (2) fraud; (3) intentional tortious interference with a guaranty contract between the Bank and the Economic Development Administration (EDA); (4) intentional interference with loan agreements between the Bank and Leird; and (5) breach of Dr. Kutait’s duty as a director of Leird.
In 1981 the Bank loaned money to Dr. Kutait’s brother, Ed Kutait, to start Leird, a furniture manufacturing business. Dr. Kutait guaranteed a portion of the loan and served on Leird’s board of directors. Conflicts arose between the Bank and Ed Kutait. Leird filed for bankruptcy in 1984. At that time Ed Kutait and others were suing the Bank in a federal court for $ 15 million in damages upon various allegations, including fraud, arising out of their business relationship.
During the federal litigation the Bank deposed Dr. Kutait and learned that he was supporting his brother financially. The 1987 suit was filed shortly after the deposition. The Bank’s claims against Dr. Kutait were all arguably time barred or lacking in a factual basis. Dr. Kutait contended the claims accusing him of dishonesty and deceit caused distress which was exacerbated by the $5 million in damages sought in the suit. His counsel sought to have the case dismissed for lack of a sound legal basis. During the process of negotiations counsel for the Bank allegedly suggested it would dismiss the suit if Dr. Kutait would influence his brother to drop his federal court claim against the Bank.
Dr. Kutait refused to attempt to influence his brother. On August 25, 1988, shortly before trial the Bank dropped its claim against Dr. Kutait by taking a voluntary nonsuit. The Bank could have refiled its claim against Dr. Kutait within one year, but it did not do so. Dr. Kutait filed this malicious prosecution and abuse of process action two months after the federal court jury returned a verdict for Ed Kutait against the Bank in excess of $5 million. He sought compensatory and punitive damages arguing that the institution of the 1987 lawsuit was without probable cause.
At the trial, testimony was presented supporting the allegation that the Bank’s counsel said the suit against Dr. Kutait would be dropped if he used his influence to get his brother to drop his federal court claim.
The Bank raises several arguments. We need only address the first of them, i.e., that the Court erred in refusing to grant its motion for a directed verdict on the abuse of process claim.
Abuse of process
The nature of abuse of process was considered in Smith & McAdams Inc. v. Nelson, 255 Ark. 641, 501 S.W.2d 769 (1973). We quoted with approval from W. Prosser, Law of Torts § 121 (4th Ed. 1971), three requirements to sustain an abuse of process action. 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.
In that case and others we have determined that abuse of process is somewhat in the nature of extortion or coercion. The key is improper use of process after issuance, even when issuance has been properly obtained. In the Smith & McAdams, Inc., case we stated, “The test of process abuse is not whether the process was originally issued with malice and without probable cause. The remedy in that situation would be an action for malicious prosecution which was asserted in the case at bar.” In Cordes v. Outdoor Living Ctr., Inc., 301 Ark. 26, 781 S.W.2d 31 (1989), we reiterated that it does not matter, when considering abuse of process, whether the legal procedure set in motion was indeed founded upon probable cause because the second requirement is that the procedure must have been perfected to accomplish an ulterior purpose for which it was not designed.
The Bank argues that the evidence presented failed to support all the elements of the claim. We agree there was no “process” abused subsequent to the initiation of the action and, therefore, the third of the elements of the claim failed. The only process issued in the 1987 suit was the summons which accompanied the complaint served on Dr. Kutait. It was the fact of the filing of the lawsuit against him which formed the basis for Dr. Kutait’s complaint and not a specific abusive use of any “process” like the issuance of summons, serving of an arrest warrant, or improper actions in the process used to obtain discovery.
In each of our prior cases we have had some specific act of this nature to consider in determining that the elements of abuse of process were met, and we have not extended the tort to include the filing of a vexatious action. See, e.g., Culpepper v. Smith, 302 Ark. 558, 792 S.W.2d 293 (1990) [arrest warrant]; Cordes, supra [arrest warrant]; Peterson v. Worthen Bank, 296 Ark. 201, 753 S.W.2d 278 (1988) [writs of garnishment]; Smith & McAdams, Inc. v. Nelson, 255 Ark. 641, 501 S.W.2d 769 (1973) [arrest warrant]; Lewis v. Burdine, 240 Ark. 821, 402 S.W.2d 398 (1966) [writ of garnishment]; and Baxley v. Laster, 82 Ark. 236, 101 S.W. 77 (1907) [writs of garnishment].
In Farm Service Cooperative v. Goshen Farms, 267 Ark. 324, 590 S.W.2d 861 (1979), we specifically rejected a claim that the filing of a vexatious lawsuit was sufficient to establish the action. We noted with approval a description of abuse of process as “a narrow tort,” and we made it clear that evidence of filing of vexatious litigation is not sufficient. In this case, we cannot even say we are dealing with a vexatious action as the Trial Court found it was filed with probable cause and that finding has not been questioned on appeal.
Dr. Kutait urges an expansion of our definition of abuse of process to include the filing of parallel litigation to accomplish an ulterior coercive purpose. He cites a variety of cases from other jurisdictions generally supportive of his position that the filing of litigation for a perverse purpose is sufficient process. The Bank counters with citations from other jurisdictions which hold to the contrary and reject the mere filing of litigation as satisfying the requirements for abuse of process.
We need not resort to the law in other jurisdictions as the opinion and holding in the Farm Service Cooperative case provide ample guidance. To sustain an abuse of process claim, there must have been issuance of process subsequent to initiation of suit, and the additional process must have been utilized for a coercive or improper purpose. While that may seem a mechanical sort of rule, this case demonstrates the wisdom of it. Were we to hold that the filing of the action satisfied the “process” requirement we would put ourselves in the position of holding that one may be liable for the filing of an action with probable cause. Even if the Bank had an ulterior motive for suing Dr. Kutait, and even if that motive had been improper, we would not wish to say that any citizen is precluded from bringing an action when there is probable cause to do so. Abuse of process issued thereafter is a different matter, and that did not occur here.
Reversed and dismissed. | [
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Per Curiam.
According to the petition, the trial court has issued its order. We do not issue a writ of prohibition for something that has already been done. | [
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Tom Glaze, Justice.
Appellant was convicted of the crime of rape and then pled guilty to the charges of burglary and criminal attempt to commit rape. He subsequently filed a Rule 37 motion seeking post-conviction relief alleging he received ineffective assistance of counsel. The trial court denied appellant’s petition, and appellant now appeals that ruling. Appellant argues that his trial attorney, Bill McArthur, improperly failed to file a timely speedy-trial motion, asking appellant’s charges be dismissed. He further claims McArthur obtained trial continuances that appellant never approved. Neither of appellant’s arguments has merit.
The short answer to appellant’s first argument is that, while Mr. McArthur did not ask that appellant’s charges be dismissed on speedy-trial grounds, appellant did file such a motion pro se, and the trial court denied his motion. Appellant appealed the trial court’s ruling to the court of appeals, and in an unpublished opinion, the appellate court held the appellant had not been deprived of a speedy trial. Monts v. State, CACR 91-242, opinion delivered on June 17, 1992. Thus, in this Rule 37 proceeding, appellant has shown no prejudice which has resulted from his trial attorney’s failure to file a speedy-trial motion. Knappenberger v. State, 283 Ark. 210, 672 S.W.2d 54 (1984). Appellant raised the speedy-trial issue he now says his attorney failed to raise, and he lost on that issue both at trial and on appeal. Rule 37 does not provide a means to relitigate a matter decided on appeal. Spivey v. State, 299 Ark. 412, 773 S.W.2d 446 (1989).
We also point out that the court of appeals’ decision that appellant’s speedy-trial claim was without merit lends support to the presumption that Mr. McArthur acted within the bounds of reasonable professional assistance. Spivey, 299 Ark. 412, 773 S.W.2d 446; Cox v. State, 299 Ark. 312, 772 S.W.2d 336 (1989). Counsel cannot be found ineffective when he or she fails to make an argument which has no merit. Stanley v. State, 297 Ark. 586, 764 S.W.2d 426 (1989). In sum, even if appellant’s counsel had filed a motion to dismiss on speedy-trial grounds, such a motion would have been unavailing.
Appellant’s next argument concerns whether his trial attorney, McArthur, obtained continuances in appellant’s absence and without his approval. Both the appellant and McArthur testified on this issue, and McArthur related that he had discussed all the continuances obtained with both the appellant and his mother, and appellant was present for all such requests except one. The trial court’s docket sheet supports McArthur’s testimony concerning appellant’s appearances. It is well established that the credibility of the witnesses is a matter for the factfinder, Ham v. State, 296 Ark. 385, 757 S.W.2d 932 (1988), and in this case, the trial court obviously believed Mr. McArthur’s testimony rather than the appellant’s.
Finally, we reiterate the rule that matters of trial tactics and strategy, which can be a matter of endless debate by experienced advocates, are not grounds for post-conviction relief. Knappenberger, 283 Ark. 210, 672 S.W.2d 54. Here, McArthur testified that sources had informed him that the victim in this case was “shaky,” and if given enough time, the victim might move from the state and refuse to testify for the prosecution. We cannot say here that counsel’s tactical decisions to obtain continuances denied appellant a fair trial. Id.
For the above reasons, we affirm. | [
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Frank Holt, Justice.
Appellant contracted with appellee Larson and Wear as the general contractor to construct an addition to appellant’s furniture factory. Larson and Wear subcontracted the roofing to appellee Industrial Roofing. The work was completed in 1974. The roof sustained damage during a storm on April 2, 1980. On June 30, 1981 the appellant filed this action against the appellees alleging that the roof damage had been caused by the negligent design, fabrication, and installation of the roof.by Industrial Roofing and the negligent supervision of Industrial Roofing by Larson and Wear. The circuit court granted the appellees’ motions to dismiss on the ground that the action was barred by the five year statute of limitations, Ark. Stat. Ann. § 37-237 (Supp. 1981). Further, it was barred by the three year statute of limitations governing torts. Ark. Stat. Ann. § 37-206 (Repl. 1962). Appeal is taken from the dismissal of the action.
Section 37-237 is § 1 of Act 42, Acts of Arkansas, 1967, and it states as follows:
No action in contract (whether oral or written, sealed or unsealed) to recover damages caused by any deficiency in the design, planning, supervision or observation of construction or the construction and repair of any improvement to real property or for injury to property, real or personal, caused by such deficiency, shall be brought against any person performing or furnishing the design, planning, supervision or observation of construction or the construction or repair of such improvement more than five (5) years after substantial completion of same.
The appellant observes that this provision applies only to actions “in contract” whereas the next section, § 37-238, a similar statute governing personal injury actions, applies to actions “in tort or contract.” He argues that the legislature left open the possibility that a plaintiff who had contracted to have construction work performed could sue the contractor for personal damage arising from a deficiency in design, planning, supervision or construction of an improvement more than five years after its completion if the plaintiff alleged negligence, a tort, rather than breach of contract. Since his complaint alleges negligence, he argues that § 37-237 is inapplicable. Consequently, § 37-206 is the only governing statute as to when the action must be brought. Section 37-206 requires that the tort action be brought within three years after the cause of action accrues. The appellant argues that its cause of action accrued on April 2,1980 when the storm caused the damage, because the tort was not complete until that time. Thus, its action was not barred, since it was filed on June 30, 1981, well within three years after the date he claims the cause of action accrued.
The first issue presented is whether the phrase “in contract” in § 37-237 should be construed to mean the statute is limited to actions where the plaintiff alleges a theory of recovery in contract or whether it is broad enough to govern in actions arising out of a construction contract where property damages, as here, are allegedly caused by a tort; i.e., negligence in the deficiency in design, planning, supervision or construction. As we have stated on many occasions, the guiding star in interpreting a statute is the intention of the legislature. Shoop v. State, 209 Ark. 642, 192 S.W.2d 122 (1946); West v. Cotton Belt Levee Dist. No. 1, 116 Ark. 538, 173 S.W. 403 (1915); and Henderson v. Russell, 267 Ark. 140, 589 S.W.2d 565 (1979). Here, it is obvious that the legislative purpose was to enact a comprehensive statute of limitations protecting persons engaged in the construction industry from being subject to litigation arising from work performed many years prior to the initiation of the lawsuit. Similar statutes were enacted in many states during the 1960’s. The annotation at 93 A.L.R.3d 1242, 1246 (1979) states:
While the statutes thus enacted are not uniform in content, the purpose for which they were enacted was uniformly to limit the time within which actions for deficiencies in the design, construction, and supervision of construction of improvements to real property, for which architects, engineers, and others in the construction industry were responsible, could be brought against such persons. The effect of such statutes is to cut off entirely an injured person’s right of action before it accrues, if it does not arise until after the statutory period has elapsed.
See also Carter v. Hartenstein, 248 Ark. 1172, 455 S.W.2d 918 (1970).
We have held that it is always proper to look at the preamble of an act to ascertain its meaning. Oliver v. Southern Trust Co., 138 Ark. 381, 212 S.W.2d 7.7 (1919). The preamble to Act 42 states:
An act to establish a Statute of Limitations for any deficiency in design, supervision and construction of improvements to real property, for injury to real or personal property and for personal injuries and wrongful death arising from such deficiency, and to establish financial responsibility for persons bringing actions in connection therewith. (Italics supplies.)
An impartial reading of the nine sections of Act 42 confirms the statement in the preamble that the Act was intended to establish limitations for “any” deficiency in work arising out of a construction contract.
If we construed § 37-237 in the manner urged by the appellant, the purpose of the legislature in enacting that provision would be totally frustrated, because every plaintiff who wished to avoid its impact could do so merely by alleging negligence rather than contract as the theory of recovery. Instead, we construe the phrase “in contract” in § 37-237, in the light of the legislative purpose and the language of the preamble to Act 42, to extend the coverage of § 37-237 to all actions which arise out of a construction contract where property damage has allegedly resulted from any deficiency in design, planning, supervision or observation of construction or the construction and repair of any improvement to real property.
The facts in the present case are somewhat analogous to those in Atkins Pickle v. Burrough-Uerling-Brasuell, 275 Ark. 134, 628 S.W.2d 9 (1982), where we held that the “real character” of an action for negligent performance of a construction contract was in contract rather than in tort. Here, Smith contracted with Larson and Wear for the construction of the addition to the factory, and Larson and Wear subcontracted with Industrial Roofing for its roofing obligation under the contract with Smith. Hence, all the work about which appellant complains which caused property damages was done pursuant to a contractual relationship between the parties to this litigation. Accordingly, § 37-237 applies to this action. It is admitted that the action was filed more than five years after substantial completion of the improvement. Therefore, the trial court correctly held this action to be barred by § 37-237.
Since we hold that the action is barred by § 37-237, we deem it unnecessary to discuss the other argument advanced by the appellant.
Affirmed.
Adkisson, C.J., dissents. | [
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Steele Hays, Justice.
This is an appeal from the denial of a motion to correct an illegal sentence under Ark. Code Ann. § 16-90-111 (1987). When appellant was sentenced on a plea of guilty to theft of services, he was fined $500 and costs and given a five year suspended sentence conditioned on good behavior and making restitution in the amount of $1,020.44. Appellant was given sixty days to pay the fine, costs and restitution.
About five weeks later, on August 23, 1983, appellant was incarcerated in the Department of Correction as the result of other charges. Some ten months later, having failed to make restitution or pay the fine and costs, appellant was brought before the trial court on June 25, 1984, for a hearing to revoke the five year suspended sentence mentioned above. The trial court informed the appellant that he would allow an additional thirty days to make restitution and sixty days to pay the fine and costs, but if appellant failed to perform, then the suspended sentence would be revoked “without further proceedings.” Pursuant to that announcement the trial court on September 4,1984, entered an order revoking the suspended sentence and sentenced appellant to three years, teq months and fifteen days to be served consecutively to any sentence then being served. Neither the appellant nor his attorney was present on September 4, when this sentence was imposed.
Appellant filed various motions after the September 4 sentence. The last motion prior to that now being appealed was affirmed on appeal by this court in a per curiam order on September 28, 1987. Thereafter, appellant filed a petition to correct an illegal sentence, pursuant to § 16-90-111 (1987). Relief was denied and appellant brings this appeal.
Appellant first contends that sentencing is a critical stage of a criminal case, Mempha v. Ray, 389 U.S. 128 (1967); see also, 21 Am. Jur. 2d Criminal Law § 529 (1981), and that he has a constitutional right to be present at any stage of the criminal proceeding that is critical to its outcome, Kentucky v. Stincer, _ U.S _, 107 S. Ct. 2658 (1987). We agree with those statements of the law. Arkansas has always required the defendant’s presence at sentencing for a felony. See Cole v. State, 10 Ark. 318 (1849); Sneed v. State, 5 Ark. 431 (1843). See also Ark. Code Ann. § 16-90-106 (1987). The presence of the defendant is required at resentencing as well. Paul v. United States, 734 F.2d 1064 (5th Cir. 1984).
The state does not dispute the fact that appellant was not present on September 4 when he was sentenced, but maintains that because he did not object when the court advised that sentence would be imposed “without further proceedings,” then he waived any objection. We disagree. The state does not contend the trial court made it clear by those words that he intended to sentence the appellant in absentia, and we are unwilling to hold that the fundamental right to be present at sentencing was knowingly waived in the absence of language specifically advising an accused that he is subject to being sentenced prospectively without his being present. Even if we could agree that appellant should have objected, the nature of the remedy provided by § 16-90-111 (1987) is not dependent upon a prior objection. The statute contains a post-conviction remedy, narrowly defined, for the correction of an illegal sentence. The legislature obviously chose to provide a safeguard for persons aggrieved in this manner that goes beyond the review provided by appeal or even by an A.R.Cr.P.Rule 37 petition. See Williams v. State, 291 Ark. 255, 724 S.W.2d 158 (1987). If an objection were required, it would in many cases preclude the availability of the remedy and greatly reduce the effect the statute was intended to have.
Reversed and remanded. | [
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Per Curiam.
In May, 1982, petitioner William Munn, Jr. was convicted in the Circuit Court of Howard County of second degree murder. He was sentenced to twenty years imprisonment in the Arkansas Department of Correction. He has now filed a pro se motion seeking permission to file a belated appeal of his conviction. In his motion he concedes that although he was aware of his right to appeal, he failed to inform his attorney of his desire to appeal until after the time for filing a notice of appeal had passed. He attributes his delay to ignorance of the law and to the fact that he was transferred to prison and isolated for a period of time. In an affidavit filed in response to petitioner’s motion, the attorney states that after trial he discussed with petitioner whether an appeal would be taken and petitioner said he did not want to appeal. He was not notified that petitioner had changed his mind until approximately two weeks after the time for filing the notice of appeal had expired.
Criminal Procedure Rule 36.9 provides that a belated appeal may be granted for good cause even if no notice of appeal was filed. We have consistently held that the failure of counsel to perfect an appeal in a criminal case where the defendant desires an appeal amounts to a denial of the defendant’s right to effective assistance of counsel. Gray v. State, 277 Ark. 442, 642 S.W.2d 306 (1982). We recognize, however; that a convicted defendant may waive his right to appeal, Gray, supra, and in petitioner’s case we find that he did so.
Petitioner states that after trial he was undecided about whether to appeal. He admits that by the time he wrote his attorney, it was too late to file a notice of appeal. Counsel’s affidavit indicates that he would have acted promptly if instructed to do so. Petitioner has provided no good cause for his failure to contact the attorney within the time set for filing a notice of appeal.
Motion denied. | [
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John I. Purtle, Justice.
The Travelers Indemnity Company appeals from a declaratory judgment in favor of its insured, Olive’s Sporting Goods, Inc. The circuit court adjudged gunshot injuries to several persons to be separate occurrences within the meaning of the policy issued by Travelers to Olive’s. For reversal, the appellant argues that: (1) the court erred in finding there was more than one occurrence involved in the litigation; (2) the court erred in holding the contract of insurance ambiguous; and (3) the court erred in finding that the “products hazard” and “completed operations hazard” limits of the policy were not applicable. We agree with the appellant that there was only one “occurrence” with respect to the policy of insurance and that the aggregate coverage stated is the total sum for which Travelers may be liable under the circumstances of this case.
The trial court held that each injury inflicted by a gunman amounted to a separate occurrence under the insurance policy with Olive’s. The Court of Appeals held that there was no justiciable controversy and dismissed the action. Travelers Indem. Co. v. Olive’s Sporting Goods, Inc., 25 Ark. App. 81, 753 S.W.2d 284 (1988). We granted review from the opinion of the Court of Appeals.
The appellee sold a Colt .45 pistol and a 12-gauge Smith and Wesson shotgun to a Wayne Crossley. These weapons were allegedly subsequently used by Crossley in a bizarre incident in which he shot a policeman, killed and wounded several other persons, and then committed suicide.
Several lawsuits have been filed against Olive’s on behalf of the victims alleging negligence in the sale of the guns. In a separate action Olive’s sued Travelers in a declaratory judgment proceeding to determine the amount of coverage under the terms of this policy of insurance.
Before reaching the appellant’s arguments for reversal, we will discuss the specifics of a declaratory judgment action. The propriety of this action was argued before this court and was the basis of the opinion by the Court of Appeals. Our declaratory judgments statutes are found in Arkansas Code Annotated title 16, chapter 111, §§ 101-111 (1987). The purpose of the declaratory judgments law is to “settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” The law further provides that it is to be liberally construed and administered. Section 3 of the act gives the courts of record within their respective jurisdictions power to declare the rights, status, and other legal relations whether or not further relief is or could be claimed. The right to obtain a declaratory judgment is contained in § 104 and reads as follows:
Any person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction, or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.
Olive’s sought a determination of its rights under the contract of insurance with The Travelers Indemnity Company. The questions to be determined in this appeal are whether Olive’s had coverage for each of the multiple injuries and the amount of the aggregate coverage for liability, regardless of the number of occurrences.
The declaratory judgment statute was first enacted in 1953, Act 274, and amended by Act 35 of 1957. One of the early cases interpreting this statute is USF & G Co. v. Downs, 230 Ark. 77, 320 S.W.2d 765 (1959). That case was factually similar to the present case with the exception that there were two insurance companies involved. Downs involved an automobile insurance policy. An injured party filed suit against Downs alleging that the driver of a truck that caused an automobile accident was an employee of Downs. Subsequently a dispute arose between Maryland Casualty Company and United States Fidelity and Guaranty Company as to which company’s policy afforded primary coverage on the truck involved in the accident. The insurance companies then filed a declaratory judgment action in order to determine the obligations of the two insurance companies under their liability policies, and to determine which company was obligated to defend the suit. Although Downs was reversed on appeal and cross-appeal, it was held to be appropriate for a declaratory judgment proceeding by both the trial court and this court.
We again considered the matter of declaratory judgments with respect to liability insurance policies in Equity Mutual Insurance Company v. Southern Ice Company, 232 Ark. 41, 334 S.W.2d 688 (1960). This proceeding was brought to determine the rights of an insured under the terms of his insurance policy. That opinion contained language as follows:
There are many cases in which declaratory judgment proceedings (under the Uniform Law) have been invoked by insurers in similar or analogous situations. [Citations omitted.] The Equity Company had a right to use the declaratory judgment proceedings in this case to have determined its duty to pay ¡or defend, just as was done in the cases previously cited. The Equity Company alleged, inter alia: (1) that the status of the Arnold boy made him an employee of The Borden Company; and (2) that the automobile insurance policy here involved specifically excluded employees. The factual issues required determination; and Equity Company was entitled to have the facts determined in the declaratory judgment proceedings. [Emphasis added.]
A more recent case on the subject is that of Priddy v. Mayer Aviation, Inc., 260 Ark. 3, 537 S.W.2d 370 (1976), another insurance case involving liability coverage in an errors and omissions policy. Tort actions were filed against the policy holder. Again a declaratory judgment action. We affirmed the judgment of the trial court and in doing so quoted from Anderson on Declaratory Judgments, Second Ed., § 187:
Since [the] purpose of the declaratory relief is to liquidate uncertainties and interpretations which might result in future litigation it may be maintained when these purposes may be subserved. The requisite precedent facts or conditions, which the courts generally hold must exist in order that declaratory relief may be obtained, may be summarized as follows: (1) There must exist a justiciable controversy; that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy; in other words, a legally protectable interest; and (4) the issue involved in the controversy must be ripe for judicial determination.
In the present case we believe the facts clearly show that there exists a justiciable controversy in which the policy holder is vitally concerned with the number of “occurrences” and amount of his aggregate coverage. The insuror’s and insured’s interests are adverse, to some extent, under the present circumstances. Certainly Olive’s has a legal interest in the controversy in as much as its own exposure to liability will be increased many times if there is a “single occurrence” limitation applied to the facts of this case. The matter is obviously ripe for judicial determination since several tort actions have already been filed against Olive’s, and it seeks to determine the extent of its exposure beyond the limits of the policy. Therefore, the declaratory judgment action was proper. We do not consider the issue of Olive’s negligence in making this sale. Neither do we consider the merits of the claims of any of the claimants.
The first argument for reversal is that the trial court erred in finding that there were multiple occurrences rather than a single occurrence. Obviously from the standpoint of Crossley’s victims there was more than one occurrence; viewed from Olive’s perspective there is only one occurrence — the sale of the weapons to Crossley.
In considering the different clauses of a contract, we must read the whole document together and determine whether all parts are in harmony. If possible we give effect to the overall meaning of the contract. It is error to give effect to one clause over another on the same subject if the two clauses are reconcilable. Continential Casualty Co. v. Davidson, 250 Ark. 35, 463 S.W.2d 652 (1971).
The contract between the parties attempted to define an “occurrence.” The policy in part states:
If a single limit of liability is stated . . .the limit stated in the declarations as applicable to “each occurrence” is the total limit of liability ... for all damages . . . arising out of bodily injury. . . sustained by one or more persons. . . as a result of any one occurrence. Subject to the above provisions respecting each occurrence, the total liability of the Travelers for all damages because of bodily injury. . . described in any of the subparagraphs below shall not exceed the limit of liability stated in the declarations as “aggregate.”
The policy also states:
“Occurrence” means an accident including continuance [of] or repeated exposure to conditions which result in bodily injury neither expected nor intended from the standpoint of the insured .....
The policy declares that regardless of the number of persons injured or the number of claims made or suits brought on account of bodily injury, The Travelers’ liability is limited as stated in the single limit of liability quoted above.
Although we have found no decision by this court construing such an “occurrence” provision in an insurance policy, there are decisions from other jurisdictions reaching contrasting results. We are persuaded that those jurisdictions adopting the “cause” theory (rather than the “effect” theory) hold the better view. To decide that each of the injuries required separate coverage under the policy would in effect put a no-limit policy into effect. We find the case of St. Paul Mercury Indemnity Company v. Rutland, 255 F.2d 689 (5th Cir. 1955), persuasive. In that case fourteen different parties claimed entitlement to the proceeds of a single policy as a result of a derailment of a train. The court held the single limit liability stated in the policy was the total limit of recovery. The same result was reached in Champion International Corporation v. Continental Company, 546 F.2d 502 (2d Cir. 1976), where 1400 sales of defective material were made. The court held that the multiple sales were continuous and repeated elements of the same occurrence. From the facts presented in the present case, and the terms of the policy, we hold that there was only one occurrence within the meaning of the insurance policy issued to Olive’s.
The second argument by appellant is that the court erred in finding the contract ambiguous. When the contract of insurance is read in its entirety, it is clear that the appellant agreed to be bound for a total of $300,000 under the conditions covered by the policy. The terms of the policy make it clear that the $300,000 limit is applicable either to one or several causes for which the insured is liable. See Continental Casualty Company v. Davidson, supra. We do not find the policy to be ambiguous.
The final argument for reversal is that the trial court erred in finding that the “products hazard” and “completed operations hazard” sections of the contract had no application. Although the terms used in the contract may not exactly fit the stereotypical conception of the “occurrences” resulting in this action, the words cannot be construed otherwise. The “products hazard” section, according to the policy, covers bodily injury arising out of the insured’s products if the injury occurs away from the premises. “Completed operations hazard” includes bodily injury arising out of operations if the injury occurs after the operations have been completed and away from the insured’s premises. Obviously if the insured is responsible for injuries under these circumstances, it is covered by one of these provisions of the policy. It is also clear that The Travelers intended to insure Olive’s for liability under some circumstances. It makes no difference whether the intent was to cover them for claims resulting from “products hazards” and “completed operations hazards,” or operations on the premises such as the sale of a product. The aggregate limit is stated both on the declaration page and in the products hazards and completed operations hazards clauses of the policy. The declaration sheet is partially reproduced below:
To hold with the trial court in this case would cause the appellant to be responsible for up to $300,000 on every claim for which Olive’s may eventually be found liable. Each eligible heir of those killed could have a separate claim with a limit of $300,000. The limits of the policy cannot be calculated under these circumstances. Even if we were to decide that the “products hazards” provision does not apply, there is still the declaration sheet at the beginning of the policy where the total limit of liability under the policy is stated as $300,000. Therefore the aggregate limit in the policy is the amount stated on the declaration sheet — $300,000.
The case is reversed and remanded with directions to the trial court to enter declaratory judgment in accordance with the provisions of this opinion.
Hickman and Newbern, JJ., concur. | [
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David Newbern, Justice.
This case involves the remedies to be afforded a dissenting shareholder of a closely held corporation when a majority of the shareholders vote to sell substantially all the corporate assets. The appellant, H.L. “Pete” Smith, argues the Chancellor erred by substituting the equitable remedy of foreclosure for the legal remedy of determining the fair value of his shares under Ark. Code Ann. § 4-26-904(f)(2)(A) (Repl. 1991) when acting pursuant to the clean-up doctrine. He also contends the Chancellor should have ruled on his shareholder’s derivative claim brought on the corporation’s behalf under Ark. Code Ann. § 4-26-811 (a)(3) (Repl. 1991). We find no error and affirm.
Smith was the sole shareholder of Pete Smith Realty, Incorporated. On May 24, 1988, the appellees, Richard Stofer and Henry Allen loaned $475,000 to financially troubled Pete Smith Realty secured by a deed of trust on all real property owned by the corporation. A few days after the transaction, Stofer, Allen, J.E. Johnston, and Charles Regan purchased two-thirds of the corporate stock from Smith. Stofer later purchased Regan’s shares. The corporate name was changed to Eastgate Properties, Incorporated. Allen and Stofer were directors, officers, and majority shareholders of Eastgate.
In July of 1988, Stofer and Allen loaned Eastgate approximately $38,000 which was secured by the deed of trust under a future advances provision. Eastgate borrowed $200,000 of additional working capital from One National Bank which was also secured by a mortgage lien on the corporation’s real property. Stofer, Smith, and Allen were individually liable with Eastgate on the debt to One National Bank.
The original $475,000 loan from Stofer and Allen was due November 24, 1988, and well into default on March 12, 1991, when a special meeting of the stockholders, directors, and officers of Eastgate was held. During this meeting, a majority of the shareholders (Stofer, Allen, and Johnston) voted to convey the real property owned by Eastgate to Stofer and Allen in satisfaction of the debt owed them. Smith objected to the transfer prior to the meeting and voted his shares in opposition to the decision. The property was conveyed to Stofer and Allen by corporate warranty deed and bill of sale. On March 20, 1991, Smith made written demand on Eastgate for the fair value of his shares pursuant to Section 4-26-904(f)(2)(A). Stofer and Allen maintained Smith’s stock was worthless because Eastgate’s debts exceeded the value of its assets.
In May of 1991, Stofer and Allen requested an ex parte temporary restraining order in Garland County Chancery Court prohibiting Smith from removing fixtures from the real property which had been conveyed to them by Eastgate. The Chancellor granted the temporary relief on May 31,1991. On July 19,1991, Smith responded to the petition and claimed ownership of the fixtures by virtue of a 1975 agreement between Smith Farms and Pete Smith Realty. Smith Farms was also owned by Smith. Smith requested that the temporary restraining order be lifted and Allen and Stofer’s claim for permanent injunctive relief be dismissed.
Smith affirmatively contended in Chancery Court that Stofer and Allen breached a fiduciary duty of care and loyalty owed to Eastgate and its minority shareholders by transferring corporate assets to themselves for substantially less than their fair market value. Smith alleged the real property owned by Eastgate was worth over $2,000,000 but was transferred to Stofer and Allen for only $475,000. Smith also claimed Stofer and Allen’s purchase of the assets was a taking of a corporate opportunity in which Eastgate and its shareholders had a profit expectancy. As a proximate result of Stofer and Allen’s actions, Smith alleged he suffered damages of $300,000, which represented 25% of the estimated fair value of Eastgate’s assets. Smith also demanded $1,215.61 in compensation for the value of his engineering services rendered to Eastgate.
On July 5,1991, Smith filed a complaint in Garland County Circuit Court against Stofer, Allen, and Eastgate seeking a determination of the fair value of his shares under Section 4-26-904(f)(2)(A). The complaint alleged the same basic causes of action as the counterclaims filed in Chancery Court. Because Eastgate had no assets to pay a judgment, Smith sought to hold Stofer and Allen jointly and severally liable for the value of his shares under Section 4-26-811(a)(3). With respect to his claim for services rendered, Smith claimed he was suing in his capacity as a shareholder, and thus the case was a shareholder’s derivative suit brought on Eastgate’s behalf. His theory was that Stofer and Allen had failed to make provisions for paying Eastgate’s debts, so they were liable to Eastgate and Eastgate to him.
Smith immediately moved to transfer his claims against Stofer, Allen, and Eastgate to Chancery Court because the same issues were pending in the action there. Smith stated he filed his petition in Circuit Court to comply with Section 4-26-904(f)(2)(A) requiring such actions to be brought there. Having filed in Circuit Court as required by the Statute, Smith asked that his claims be transferred to Chancery Court which could decide them under the clean-up doctrine in order to avoid a multiplicity of suits and the potential for inconsistent decisions. The Circuit Court granted the motion without objection from Stofer and Allen.
The case went to trial on December 18,1991. No testimony has been included in the record as designated by Smith for presentation here, and we have only the Chancellor’s findings to consider. The Chancellor recognized most of the evidence at trial dealt with the appraised value of Eastgate’s real property which ranged from $1,600,000 to $704,000. The Chancellor ruled the most appropriate remedy to end the controversy was to set aside the conveyance from Eastgate to Stofer and Allen and order the Chancery Clerk to conduct a judicial sale of Eastgate’s real property. The Chancellor acknowledged the parties did not request this remedy but believed he could fashion any reasonable relief justified by the proof.
The property would be sold subject to One National Bank’s $200,000 loan, and the net proceeds of the sale would be paid to Stofer and Allen to apply to their loans made to Eastgate. Any proceeds in excess of the principal and interest owed to Stofer and Allen would be returned to Eastgate. Presumably, Smith would be entitled to share in the excess proceeds in proportion to his ownership interest in Eastgate. The Chancellor stated this remedy would place the parties in the same position as if Stofer and Allen had foreclosed on their mortgage.
The Chancellor further held the sale would render moot Smith’s claim against Eastgate, Stofer, and Allen for allegedly breaching a fiduciary duty by transferring assets for less than fair value, and Smith’s claim for recovery as a minority shareholder. Smith was awarded a $1,215.61 judgment against Eastgate for engineering services rendered.
Smith moved to amend the findings, arguing the Chancellor incorrectly substituted the equitable remedy of foreclosure for the legal remedy of determining the fair value of his shares. Smith alleged the foreclosure sale would not result in a fair value given to his shares as these sales were commonly viewed as “liquidation sales” where property is sold for a fraction of its value. The motion was denied. Smith moved to supplement the record with the Clerk’s report of sale showing Stofer and Allen purchased substantially all of Eastgate’s real property at the foreclosure sale for $450,000.
1. Equitable remedies
Smith argues the Chancellor was without authority to substitute the equitable remedy of foreclosure for the legal remedy of determining the fair value of his shares under Section 4-26-904(f)(2)(A). He contends a Chancellor must apply legal remedies when acting pursuant to the clean-up doctrine.
We recognize the legal right of a dissenting share holder to obtain a determination of the fair value of his shares under Section 4-26-904(f)(2)(A) when a majority of the shareholders vote to sell substantially all the corporate assets. There is no dispute that Smith complied with the Statute by objecting to the transfer prior to the meeting, by not voting in favor of it, and by making a timely written demand on Eastgate for the fair value of his shares. Ark. Code Ann. § 4-26-904(a) (Repl. 1991). The Statute is silent on the method for determining “fair value.” We have stated there is no set formula or standard for determining fair value. General Securities Corp. v. Watson, 251 Ark. 1066, 477 S.W.2d 461 (1972).
By setting the sale to Stofer and Allen aside, the Chancellor avoided applicability of § 4-26-904(f)(2)(A). To support his argument that the Chancellor was without authority to set aside the sale and impose the equitable remedy of foreclosure, Smith relies almost exclusively on the maxim “equity follows the law” as cited in Beebe School Dist. v. National Supply Co., 280 Ark. 340, 658 S.W.2d 372 (1983). In the Beebe case, National Supply argued this Court should not follow a decision reached in a law case because the case on appeal arose in equity. We disagreed, stating “equity follows the law is strictly applicable whenever the rights of the parties are clearly defined and established by law.” The primary basis for our decision, however, was the fact that the same result had been reached in an appeal from a chancery court.
It might be true that equity follows the law in the sense of applying to equitable estates and interests the same rules by which common law legal estates are governed. Pomeroy’s Equity Jurisprudence, § 426 (5th ed. 1941). We cannot, however, interpret the Beebe case to mean equity must disregard equitable remedies in favor of legal remedies when acting pursuant to the clean-up doctrine. The fact that in some instances equity follows the same rules as are applied to legal estates does not mean equity must apply the same remedies.
We believe this statement to be particularly appropriate:
[O]ne large division of the equity jurisprudence lies completely outside of the law; it is additional to the law; and while it leaves the law concerning the same subject-matter in full force and efficacy, its doctrines and rules are constructed without any reference to the corresponding doctrines and rules of the law. Another division of equity jurisprudence is directly opposed to the law which applies to the same subject-matter; its doctrines and rules are so contrary to those of the law, that when they are put into operation the analogous legal doctrines and rules are displaced and nullified. As these conclusions cannot be questioned, it is plain that the maxim, Equity follows the law, is very partial and limited in its application, and cannot, like all the other maxims discussed in this chapter, be regarded as a general principle.
Pomeroy’s Equity Jurisprudence, § 427 (5th ed. 1941).
In setting aside the conveyance and ordering the assets sold at foreclosure, the Chancellor relied on Whitten Developments, Inc. v. Agee, 256 Ark. 968, 511 S.W.2d 466 (1974), which states the general rule that “a court of equity may fashion any reasonable remedy justified by the proof.” See also Roe v. Dietrich, 310 Ark. 54, 835 S.W.2d 289 (1992); Keith v. Barrow-Hicks Ext. Imp. Dist, 275 Ark. 28, 626 S.W.2d 951 (1982). Smith argues this rule is applicable only when a court of equity substitutes one equitable remedy for another. We decline to say the rule is so narrow.
In the Whitten case, we stated even though Agee did not request foreclosure, he was, in view of his prayer for general relief, entitled to any relief in equity justified upon proof of the facts alleged. It is undisputed that in this case Smith invoked the jurisdiction of Chancery Court and there requested “all other just and proper relief.” The Chancellor acted within his authority in determining a foreclosure sale was the best method for determining the value of Smith’s shares and ending the litigation.
Smith argues the foreclosure sale guaranteed he would not receive a fair value for his shares because foreclosure sales bring only a fraction of the true value of the assets sold. He supports his argument with the fact that the price brought at the foreclosure sale, from Stofer’s and Allen’s $450,000 bid, was substantially less than the lowest appraised value of the property, $704,000.
We refuse to take judicial notice that foreclosure sales always result in property selling for less than market value. Furthermore, we cannot determine from the record whether this specific foreclosure sale brought a lower than market value price. We do know that Eastgate owed Stofer and Allen $513,000, and it owed the Bank $200,000 for a total indebtedness secured by the property in question of at least $713,000, which was well over the lower estimate of the property’s value. Smith has failed to demonstrate that the fair market value of the property, when considering the interests of Stofer, Allen, and One National Bank, was substantially higher than the price brought at the foreclosure sale.
2. Shareholder’s derivative suit
Smith’s second point is that the Chancellor should have ruled on his shareholder’s derivative claim brought under Section 4-26-811(3). The purpose of the claim was to impose joint and several liability against Stofer and Allen for any judgment Eastgate might be required to pay. The Chancellor determined his decision to set aside the transfer to Stofer and Allen rendered this issue moot.
Section 4-26-811(3) provides
The directors of a corporation who vote for or assent to any distribution of assets of a corporation to its shareholders during the liquidation of the corporation without the payment and discharge of, or making adequate provision for, all known debts, obligations, and liabilities of the corporation shall be jointly and severally liable to the corporation for the value of the assets which are distributed, to the extent that the debts, obligations, and liabilities of the corporation are not thereafter paid and discharged;
Although Stofer and Allen voted to convey Eastgate’s assets to themselves during a liquidation without first making provision for other creditors, the Chancellor set aside the transfer and ordered the assets sold. The proceeds of the sale would be used to pay other creditors, presumably in order of their priority. We agree that the Chancellor’s action rendered the Statute inapplicable. A decision would have no practical legal effect upon an existing legal controversy. Frisby v. Strong School Dist. 282 Ark. 81, 666 S.W.2d 391 (1984).
Affirmed.
Hays, J., dissents. | [
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Frank Holt, Justice.
In a non-jury trial appellant was convicted of theft by receiving and sentenced to four years imprisonment with two years suspended. Appellant questions “[w]hether the arresting officer had reasonable grounds to believe that the appellant had committed a felony or a misdemeanor as defined” by A.R.Cr.P., Rule 3.1. He then argues that the policemen lacked a “reasonable suspicion” to believe that the appellant was engaged in criminal activity which justified the stop and arrest.
At approximately 9 p.m., two police officers in plain clothes and an unmarked car were cruising in a lighted area when they observed the appellant and another individual standing at the rear of a parked car, at a street intersection, with the trunk open. Appellant was holding what appeared to be a stick of bologna. He was showing items in the trunk to “other persons.” As the officers drove by and looked, the appellant noticed them. He was “acting suspicious” and attempted to close the trunk. They stopped and observed in the open trunk several boxes of what appeared to be bologna which was later identified as Golden Platter Turkey and Ham Sticks, marked as “J.A.X.” and “H.I.” Boxes of unstamped cigarettes also were found in the trunk. At this point the officers arrested the appellant. The boxes of meat were later determined to be the property of Jacksonville High School.
We first observe that the policemen did not stop appellant. Neither did they detain him until after they saw the contents of the trunk of his car. In Tillman, Huggins & Byrd v. State, 275 Ark. 275, 630 S.W.2d 5 (1982), we explained the requirements of Rule 3.1. There we said:
Our Rule of Criminal Procedure 3.1 gives a police officer the right to stop and detain for up to 15 minutes any person he reasonably suspects has committed a felony. Rule 2.1 defines the test as more than an imaginary or purely conjectural suspicion, but less than probable cause. Even the higher standard of probable cause requires much less than a certainty, as it is said to exist simply if the circumstances known to the officer would warrant a prudent man in believing a suspect had committed a crime. (Cites omitted.) It does not depend on the same type of evidence as would be needed to support a conviction.
Here, when we consider the factors surrounding the appellant’s activity and conduct, it must be said a sufficient manifestation existed to suggest a reasonable suspicion on the part of the police officers that the appellant was engaged in some type of criminal activity.
Affirmed. | [
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John A. Fogleman, Justice.
Appellant contends the chancery court erred in refusing to reduce his alimony payments on the basis of changed circumstances. He relies principally upon the fact that, since he and appellee were divorced, she has obtained employment from which she earns substantial income. We are unable to say the chancellor’s holding was clearly against the preponderance of the evidence.
There is little dispute about the basic facts. The parties entered into a separation agreement on August 10, 1971, about three weeks after appellee filed suit for divorce against appellant. Under its terms, appellant was to pay appellee $750 per month — $375 as alimony and $125 for the support of each of the three minor children of the parties, who were to be in her custody. There was also a provision for a trust fund to be established and maintained by appellant for the purpose of providing a college education for the children. Appellee wás required to maintain a homeowner’s insurance policy on the family residence, which went to her under the agreement, and on any other residence she might buy or rent for occupancy by her and the three children. The agreement encompassed a complete division of property. It contained the statement that it was to be merged in any ultimate divorce decree and not to create a separate cause of action.
Decree of divorce was entered September 14, 1971. In it, the court approved the agreement between the parties, except for deletion, by agreement of the parties, of a requirement that appellee sell the family dwelling house and that appellant lend her $100 per month until it was sold. It recited that the provisions pertaining to alimony were merged in the decree and did not create a separate cause of action. The petition for modification was filed July 17, 1972. In it, appellant alleged that the alimony payments were based upon the understanding that appellee would not be employed, that her expenses had decreased and that there had been a change in appellant’s employment.
Appellant testified that his salary at Hurley Company, Inc., and Hurley Press was $18,000 at the time of 'the agreement, had been, raised to $18,500 and would be increased .to $19,000 on August 7, 1972. He owns only 2% of the stock in Hurley Company, in which his parents are majority stockholders. He has borrowed $2,200 for the payment of debts. He related Mrs. Hurley was not working and had stated to him that she had no plans to work at the time the agreement was being negotiated. He also said a clause in a proposed agreement between the parties providing for reduction of alimony whenever appellee went to work was stricken at her request. He stated he had been unable to make the required monthly payment of $100 into the trust fund for education of his children. He also said he had resigned as president and chief executive officer of the Hurley Company on September 3, 1971, and was off the payroll for three weeks. He was then re-employed under the same salary agreement, except for the elimination of a 2% bonus. Other fringe benefits are unchanged. Mr. Hurley would not say his resignation was voluntary, but said he felt that he had been fired, even though neither his father nor the company board of directors requested the resignation. Although appellant called his father, who was both his predecessor and successor as president of the company, as a witness, the abstract of the senior Hurley’s testimony sheds no light whatever on this subject.
Mrs. Hurley was employed as a school teacher by the Camden school system in 1971-2 at a salary of $6,300 to be increased to $6,950 for 1972-3. She neither signed a contract nor discussed her employment with any school employee prior to the signing of the separation agreement. According to her, she reached an agreement with the superintendent of schools on August 20, which was formalized into a contract approved by the school board on September 9, 1971. She will be required to attend summer school for two years.
At the time of the hearing, appellee had contracted to pay $26,000 for a smaller house for herself and the children. She expected to use the $8,000 to be realized as proceeds of the sale of her equity in the existing residence for a down payment and to effect a reduction in monthly home mortgage payments by approximately $42 per month. She said she is diabetic and that her health insurance excludes, for one year, expenses attributable to this condition. Mrs. Hurley gave estimates of total monthly expenses for herself and the three children total-ling $1,095, which she said would provide no better standard of living than they enjoyed before the divorce. Her estimate of expenses did not include any costs of enter tainment or vacations, automobile license, school books or supplies. She said her total monthly income from salary, alimony and child support totalled $1,110. While she admitted having saved $1,800, she stated she would have to use substantial amounts of this for additional taxes, insurance and closing costs attendant upon the sale of one house and the purchase of another, and her anticipated purchase of an automobile to replace the 1968 Ford she had.
It is noted that both appellant’s resignation and appellee’s contract for employment preceded the entry of the divorce decree which approved the agreement between the parties. It is also noted that one of the children of the parties was 17 years of age at the time of the hearing (August 1, 1972) and a senior in high school, who would enter college in the fall of 1973. The agreement provides that while he is attending college appellant will have the obligation of supporting him, and child support payments will be reduced by $125 per month.
It was admitted that the requirement that appellee attend summer school will not be a continuing one and that the expense of kindergarten for the youngest child would soon be terminated and orthodontal expenses for another materially reduced. These reduced costs would affect the estimates made by appellee to some extent. Still, even though some of the items exceed the bare necessities of life, appellant has not successfully contradicted appel-lee’s assertion that these estimated costs are essential to maintaining the standard of living the family had enjoyed before the divorce. In all considerations such as these the manner and style of living to which a wife and children have become accustomed is a significant factor. Riegler v. Riegler, 246 Ark. 434, 438 S.W. 2d 468. While it may be that appellee’s estimates should now be reduced by something over $100 because of items to have been eliminated, neither the trial court nor this court can be blind to the ever-increasing cost of living, or the fact that, as children grow older, their necessary expenses seem to increase. Furthermore, it seems that estimated expenses of $54 per month for clothing and $35 per month for Christmas, birthdays, additional clothing and shoes for four people, considering their station in life, is conserva tive. Since the wife’s added income has not made her self-sustaining, aside from the family burdens she must bear, the chancellor was justified in finding the evidence of changed circumstances insufficient. See Davis v. Davis, 241 Ark. 171, 406 S.W. 2d 704.
While the wife’s securing employment can be an appropriate basis for reduction of alimony payments, it does not mandate that result. The burden was on the husband to show that the change in circumstances justified the reduction. Riegler v. Riegler, supra. We cannot say he did so by a preponderance of the evidence so clear that we can say the chancellor erred. Appellant complains of his debt and the loss of his potential 2% bonus. The chancellor would have been justified in attributing both the loss and a substantial part of the debt to an abortive voluntary attempt on the part of appellant to change employment and residence. Changes arising from personal decisions and choices within the control of the husband cannot be urged as a change in circumstances to justify reduction of alimony. Grant v. Grant, 223 Ark. 757, 268 S.W. 2d 617.
Appellant complains that the wife received an extremely liberal share of his property, in addition to allowances for alimony and child support amounting to almost 60% of his income. He also points out that her “take home” pay from salary, alimony and child support is nearly twice as much as his own. He overlooks the fact that he was only supporting himself out of the income he retains and that appellee was supporting herself and three children. The liberality of the original allowances cannot afford grounds for modification. See Lively v. Lively, 222 Ark. 501, 261 S.W. 2d 409.
Since we find no basis for reversing the chancellor’s findings as to changed circumstances, we pretermit any discussion of an issue raised in appellee’s pleadings in the trial court, i.e., that the amount of alimony is based upon a separate contractual agreement, not subject to modification by the court.
The decree is affirmed.
The transcript actually recites this amount as $19,500, but appellant asserts that this is a typographical error and the correct amount is that stated above. . | [
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Tom Glaze, Justice.
This tort case was commenced by appellant Danny T. Shrum, Jr. and his wife after he slipped and fell on the bathroom floor of the leased-office space of the appellees, Southern Farm Casualty Insurance Company and Farm Bureau Mutual Insurance Company of Arkansas, Inc. After reviewing the pleadings, answers to interrogatories and depositions, the trial court granted the appellees’ motion for summary judgment from which Shrum brings this appeal.
First, we dispose of appellees’ argument that Shrum was a licensee, not a business invitee, at the time of his fall. An invitee is a person who goes upon the premises for a purpose connected with an activity which the owner carries on or permits to be carried on on the premises for a purpose mutually beneficial to himself and the owner and by invitation of the owner. Dorton v. Francisco, 309 Ark. 472, 833 S.W.2d 362 (1992). The property owner owes an invitee a duty to use ordinary care. Id. The facts here clearly establish Shrum to be an invitee.
Shrum had maintained insurance with appellees. On the day of his fall, he had gone to appellees to make sure the life insurance he had covering the indebtedness on his house would not be prematurely canceled on the date reflected on a notice mailed to him by appellees. Shrum testified that he saw Billy Moody, appellees’ agent, at a bank, and asked Moody about the notice Shrum received. Moody told Shrum to go see Shrum’s agent with appellees, Richie Grandstaff, about the matter. Shrum then went directly to appellees’ office where he saw Grandstaff, but before discussing business with Grandstaff, Shrum utilized appellees’ bathroom when and where he fell.
Appellees suggest Shrum came to their office on business that benefitted only himself; therefore Shrum was a licensee, not an invitee. The record reflects to the contrary. Shrum had been a customer of appellees for at least a seven or eight year period of time and the appellees obviously benefited from that relationship. This fact of a limited business relationship cannot be diminished merely because Shrum’s fall on appellees’ premises occurred at a time when Shrum was attempting to correct what he purportedly believed to be mistakes made by Farm Bureau in (1) crediting insurance payments made by Shrum and (2) attempting to cancel his insurance prematurely. Appellees’ agent, Billy Moody, told Shrum to see agent Grandstaff to correct these problems, and relying on that advice, Shrum proceeded to the appellees’ office to do just that. We have no problem in concluding that, based on these facts, Shrum was an invitee.
The paramount issues in this appeal are whether Shrum has shown that there is an issue of material fact as to whether soap on appellees’ bathroom floor when Shrum fell was there due to appellees’ negligence, or whether the soap had been on the floor for such a length of time that appellees knew of its presence and failed to use ordinary care to remove it. See, e.g. Boykin v. Mr. Tidy Car Wash, Inc., 294 Ark. 182, 741 S.W.2d 270(1987). This court has stated that the mere fact a patron slips and falls in a store does not raise an inference of negligence. Id. To prevail against appellees’ motion for summary judgment, Shrum is required to show that a genuine issue of material fact exists in showing Shrum’s injuries resulted from the appellees’ negligence and, in deciding whether Shrum has succeeded, we view all reasonable inferences in his favor. See Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992).
Our review of the record shows that, when Shrum went to appellees’ office to see Grandstaff, appellees’ district claims manager, Paul Mourot, was conducting his monthly meeting of his adjustors. Immediately prior to Shrum’s use of the appellees’ bathroom, Mourot and other adjustors or agents of appellees had already been in and emerged from the room. The pertinent facts and sequence of events surrounding Shrum’s fall are as follows:
(1) A plastic container of liquid soap was kept on the sink, not the wall, in the appellees’ bathroom.
(2) The appellees’ insurance agents, adjustor or secretary in the office bore the duty and responsibility to clean and maintain the bathroom.
(3) As previously mentioned, appellees’ agents or adjustors had entered the bathroom prior to Shrum, and appellees’ supervisory agent, Paul Mourot, said that he was the last person to enter and leave the bathroom before Shrum entered.
(4) Mourot testified he inspected the bathroom floor before leaving, and he would have observed soap if any had been on the floor.
(5) Mourot testified that if there was a problem with the building or if he needed something done, he would have contacted agent, Billy Moody, about it.
(6) After Shrum entered the bathroom and washed his hands, he slipped and fell, and immediately afterwards, looked where he had been standing and saw some soapy-Iooking stuff on the floor.
(7) Agent, Billy Moody, testified that he learned Shrum was hurt and went to help him. Upon entering the bathroom, Moody said that Shrum warned him there was something slick on the floor and Shrum said, “I think its soap.”
(8) Moody found soap on the floor which was about the size of a silver dollar. He cleaned up the soap, but did not preserve it.
(10) Both Mourot and Shrum denied having spilled any soap while present in the bathroom.
In viewing the above facts favorably to Shrum, one could definitely conclude soap was on the bathroom floor and the source of the soap was from the plastic soap container kept on the sink. Shrum slipped on the soap where he stood ready to exit the bathroom. It also could reasonably be inferred that, when Mourot inspected the bathroom floor, he either overlooked the soap or, having seen the soap, he failed to exercise ordinary care to remove it, believing he would later contact Moody about it. Either view of the facts reflects a material fact question which should be presented to a jury.
Appellees suggest one further point by arguing Mourot had no responsibility for cleaning appellees’ bathroom because his principal office was in Little Rock, not Fort Smith. Mourot’s own testimony reflects he inspected appellees’ bathroom floor, and if he had seen soap, he would have remedied the problem. Clearly Mourot undertook the same duty his other cohorts had in keeping the premises clean. Too, Mourot was a regular monthly user of appellees’ office facilities, and inferentially at least would have been responsible along with other of appellees’ local agents and employees to see that their bathroom facilities were cleaned and maintained properly.
For the reasons set out above, we reverse the trial court’s' granting of appellees’ summary judgment motion and remand for further proceedings.
Dudley, Newbern and Brown dissent.
While these are separate companies which have their genesis out of the Farm Bureau Federation, we refer to them collectively as appellees for the sake of simplicity in writing.
We note that the Sebastian County Farm Bureau furnished this office space to appellees, but the appellees’ agents and employees were responsible for furnishing supplies to and cleaning the bathroom.
Billy Moody testified Shrum had done business with appellees at least for as long as Moody worked for appellees in Fort Smith. | [
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Donald L. Corbin, Justice.
Appellant, Ronnie Reed, was convicted of delivery of a controlled substance (cocaine) and sentenced, as a habitual offender, to one hundred (100) years imprisonment. This appeal followed. Our jurisdiction is proper pursuant to Ark. Sup. Ct. R. 29(l)(b).
On appeal, appellant asserts two points of error. The first point of error appellant asserts is that the trial court erred in denying appellant’s motion for sanctions for the state’s failure to provide discovery with respect to the confidential informant. Appellant contends the only proper remedy for the alleged discovery violation was dismissal of the charge or exclusion of testimony about events occurring while the confidential informant was present. For his second point of error, appellant contends the trial court erred by allowing Officer Rita Porter to testify regarding two inculpatory statements allegedly made by appellant which were not revealed in discovery. Once again, appellant argues the only appropriate remedy for the alleged discovery violation was dismissal of the charge or exclusion of the testimony regarding the statements.
I. CONFIDENTIAL INFORMANT
Appellant was arrested on May 31, 1990, and a Felony Information charging appellant with Delivery of a Controlled Substance (cocaine) was filed on June 20, 1990. An amended information was filed January 28, 1991. On January 9, 1991, appellant filed a motion for discovery of the confidential informant. On March 28, 1991, the court ordered disclosure of the confidential informant. The state filed a response to discovery motion on April 11,1991, stating it had an “open file policy.” On May 17, 1991, there is a notation by Special Judge Robert Adcock in the judge’s docket notes that the “state failed to produce [confidential informant’s] address until this a.m.” On May 21,1991, appellant filed a motion for sanctions based on the state’s failure to comply with the court’s discovery order. To remedy the state’s discovery violation, appellant asked that the charge against him be dismissed or that “all testimony and evidence concerning the alleged sale and delivery by Defendant of a controlled substance to or in the presence of the alleged confidential informant.” In his motion, appellant alleged that despite the court’s March 28,1991, order for the state to disclose complete information concerning the confidential informant, the state did not provide any information to appellant regarding the confidential informant until May 17, 1991, when the state provided appellant with the name “Tanya Webster,” the address T615 Maryland, Little Rock,” which is the parking lot of a funeral home, and a memorandum itemizing payments of money to the confidential informant. Further, on May 17, 1991, the court ordered the state to disclose and produce not later than 4:30 p.m. on Monday, May 20, 1991, full and complete information concerning the confidential informant “including place of employment, correct current residence address, criminal history, and any facts or information bearing on credibility of the alleged confidential informant.” Despite the court’s order, the state provided no further information to appellant until 10:50 a.m. Tuesday, May 21,1991, when the state left a telephone message that the confidential informant was unemployed. The state’s response to the motion for sanctions, filed May 28, 1991, stated the state provided appellant with the name “Tanya Webster, 1615 Marlyn, Little Rock, Arkansas” on May 17,1991, and that the information concerning the informant’s employment was provided as soon as the state could obtain the information.
August 14,1991, appellant filed a motion to dismiss, alleging the acts of the state resulted in the confidential informant being unavailable to appellant as the confidential informant was killed June 9, 1991. Appellant stated at the hearing August 15, 1991, that he had the correct address approximately (one) 1 week before the confidential informant was killed and tried unsuccessfully to contact her. The motion was denied. Appellant concedes in his brief that “[w]hether [the informant’s] testimony could have changed the outcome will never be known because of her untimely death” and does not indicate which way the informant’s testimony would have been helpful to his case other than to say “[h]ad the appellant been given the requested information (i.e. statements, name, address, and employment of the confidential informant) in a timely manner, he would have been able to refute said testimony used to convict him and shown no participation in the crime.” We fail to see how appellant can assert that the testimony of the confidential informant would have been favorable to him since he admits he never had the opportunity to interview her. While the state did not provide the identity of the confidential informant to appellant as promptly as it should have, it does not necessarily follow that the state’s delay requires that the charge against appellant must be dismissed or that any testimony concerning events occurring in the presence of the confidential informant must be suppressed. It is within the trial court’s discretion which sanction, if any, to employ when there is a failure to comply with discovery. Renton v. State, 274 Ark. 87, 622 S.W.2d 171 (1981). Here, the only sanctions requested by appellant were either dismissal of the charge or exclusion of all testimony relating to events occurring while the informant was present. Since the informant was present during the entirety of the alleged transaction, suppression of the testimony would have left the state without a case. The incorrect address appears to have been a miscommunication given the similarity of “1615 Maryland” and “1615 Marlyn.” While the state provided the information later than required, the state asserted that the information was supplied as soon as it was available and appellant concedes that he had the informant’s correct address for approximately one (1) week before her death. The state is required to disclose material and information in sufficient time for appellant’s counsel to make beneficial use of the information. Id. Here, the identity of the informant was provided well in advance of trial. It was only the unforeseen death of the informant which prevented appellant from contacting the informant. Given the circumstances of this case, we find it was not an abuse of the trial court’s discretion to deny appellant’s motion for sanctions for the state’s delay in providing discovery with respect to the confidential informant.
II. INCULPATORY STATEMENTS
Trial was held on August 20, 1991. During opening argument, the state referred to statements allegedly made by appellant to Officer Porter during the transaction. Appellant objected to the statements that appellant called “Charles” over, appellant told “Charles” that Officer Porter wanted to buy cocaine, and appellant told Officer Porter that if the cocaine was not good to come back and he would make it good on the basis that the statements were not provided in response to his requests for discovery. Appellant asked that the charges be dismissed, a mistrial be granted, or the evidence be excluded. The trial court denied appellant’s motions, but offered to give appellant a continuance to deal with the surprise caused by the failure of the state to disclose the statements. Appellant, after consultation with his attorney, declined the continuance.
At trial, undercover Officer Rita Porter testified that on May 28, 1990, she approached appellant to buy some crack cocaine. The confidential informant was with Officer Porter during the transaction. Officer Porter testified that she approached appellant and asked him for $100 worth of crack cocaine, that appellant said he did not have small quantities and they would have to buy from one of his boys, appellant motioned for a man he called “Charles” to come over and told him Officer Porter wanted to buy cocaine. “Charles” handed Officer Porter four (4) off-white rocks, Officer Porter handed the money to “Charles” and “Charles” handed the money to appellant. Officer Porter then commented that the cocaine did not look real and appellant told her that if it was not to come back and he would fix her up.
Appellant argues the statements Rita Porter attributed to appellant should have been excluded since they were not provided in discovery. Appellant asked for the substance of all oral statements made by defendant in a motion for discovery. The state’s response stated that they had an open file policy and appellant was free to examine the entire case file upon twenty-four (24) hours notice. The court found that the statements had not been provided.
The statements clearly should have been provided. Arkansas Rule of Criminal Procedure 17.1 (1987) provides in pertinent part:
(a) Subject to the provisions of Rules 17.5 and 19.4, the prosecuting attorney shall disclose to defense counsel, upon timely request, the following material and information which is or may come within the possession, control, or knowledge of the prosecuting attorney:
(ii) any written or recorded statements and the substance of any oral statements made by the defendant or a codefendant[.]
The court found the statements attributed to appellant were not included in the state’s file, nor were they disclosed to appellant by other means. The failure of the state to apprise appellant of these statements after a proper request is a serious violation of the pretrial discovery rules, which should not be dealt with lightly.
While we look with disfavor on the state’s failure to disclose these statements, the question of the appropriateness of the court’s response to the discovery violation is a separate issue. “When the State violates the pretrial discovery rule the court has four options under Rule 19.7. They are: (1) The evidence may be excluded; (2) discovery or inspection may be ordered; (3) a continuance can be granted; and, (4) an appropriate order may be entered depending on the circumstances.” Nelson v. State, 274 Ark. 113, 115-16, 622 S.W.2d 188, 189 (1981). It is within the trial court’s discretion which sanction to employ. Renton, 274 Ark. 87, 622 S.W.2d 171. Here, the trial court offered to give appellant a continuance to deal with the surprise caused by the state’s failure to reveal the statements. We have held a continuance may be sufficient to cure the state’s failure to comply with the rule. Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981); see also Hughes v. State, 264 Ark. 723, 574 S.W.2d 888 (1978). In this case, we think any possible prejudice caused by the state’s failure to comply with the pretrial discovery rule would have been cured by a continuance. Appellant was made aware of and objected to the statements before any witnesses were presented. Since the trial court offered appellant a continuance before any testimony was presented, which he declined, we find no error.
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Tom Glaze, Justice.
At a bench trial, appellee was convicted of possession of drug paraphernalia with intent to use, and he was found to be a habitual offender with more than one but less than four felony convictions. The trial court correctly determined that appellee’s offense was a Class C felony which required a sentence of not less than six nor more than twenty years imprisonment. Ark. Code Ann. §§ 5-64-403(c)(l) (1987) and 5-4-501 (a)(4) (1987). Because appellee was found a habitual offender, the trial court, under Ark. Code Ann. § 5-4-104(a) and (e)(4) (1987), was mandated not to suspend imposition of appellee’s sentence. Nonetheless, the trial court held that, irrespective of § 5-4-104, it had inherent authority to suspend imposition of a sentence, and over the state’s objection, it awarded appellant six years, suspending imposition of five of those six years. The state appeals, asserting the trial court must follow the statutory requirements of § 5-4-104. We agree and therefore reverse.
The state appeals pursuant to Ark. R. Civ. P. 36.10(b-c) which authorizes review when the attorney general, after inspecting the trial record, is satisfied that error has been committed to the prejudice of the state and that the correct and uniform administration of the criminal law requires such review. Obviously, sentencing and the manner in which such punishment provisions can be imposed arise in every criminal case where a conviction is obtained, and the application of these statutory sentencing procedures to convict defendants requires uniformity and consistency. Thus, we accept jurisdiction of this appeal. Before considering the state’s point for reversal, we must address two matters raised by the appellee.
First, we dispose of appellee’s argument that the state failed to cite.§ 5-4-104 to the trial court, so the state cannot rely on it on appeal. This argument has no merit. At trial, the deputy prosecutor objected to the sentence imposed by the trial court, requesting that the minimum sentence of six years be imposed because the court could not “suspend on a habitual.” The trial court responded saying, “I agree with you. I for the record state I think you are right. I probably don’t have the authority ... If I don’t, I ought to ... If I don’t have that power, then there’s something wrong with the system.” The state’s and the trial court’s remarks specifically touched on whether the trial judge had authority to suspend imposition of five of the required six years when the appellee was a habitual. That issue was addressed and ruled on in the affirmative by the trial court below and is exactly the one raised and argued in this appeal.
Second, appellee argues that § 5-4-104(e)(4), the provision disallowing the suspended imposition of sentence in habitual cases, refers to Ark. Code Ann. § 5-4-502 (1987) and is inapplicable in bench trials because the habitual sentencing procedure set out in § 5-4-502 (1987) refers only to a jury. To interpret these statutes as appellee proposes would violate a defendant’s Sixth Amendment right to trial by jury. Under appellee’s construction, he could possibly avoid the habitual sentence enhancement provisions merely by asking for a bench trial, but he would subject himself to such enhancement provisions if he demanded a trial by jury. No such Hobson’s choice was intended by the General Assembly’s passage of these statutory provisions. The General Assembly merely intended for the procedure in § 5-4-502 to apply in jury trials and in doing so, to provide for bifurcated trials to protect the defendant by withholding proof of his earlier convictions until the jury has found him guilty. Such an interpretation of § 5-4-502 in no way prevents the mandatory application of the requirements of § 5-4-104(e)(4) whether the trial be by jury or to the trial court. We now turn to the state’s argument that the trial court erred in suspending imposition of appellee’s sentence.
In Southern v. State, 284 Ark. 572, 683 S.W.2d 933 (1985), the court, quoting from Sparrow v. State, 284 Ark. 396, 683 S.W.2d 218 (1985), said, “It is well settled that it is for the legislative branch of a state or federal government to determine the kind of conduct that constitutes a crime and the nature and extent of punishment which may be imposed.” This court has repeatedly held that sentencing in Arkansas is entirely a matter of statute. Richards v. State, 309 Ark. 133, 827 S.W.2d 155 (1992); Sherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988). This court has also held that the minimum sentences for habitual offenders are mandatory. McKillion v. State, 306 Ark. 511, 815 S.W.2d 936 (1991). Further, this court has held that the power to grant or withhold the authority of trial judges to suspend execution of sentence conditioned on the defendant’s good behavior properly lies with the General Assembly. Tausch v. State, 285 Ark. 226, 685 S.W.2d 802 (1985); Hill v. State, 276 Ark. 300, 634 S.W.2d 120 (1982); Davis v. State, 169 Ark. 932, 277 S.W.2d 5 (1925); Holden v. State, 156 Ark. 521, 247 S.W.2d 768 (1923).
The case of Lovell v. State, 283 Ark. 425, 434, 681 S.W.2d 395 (1984) (supplemental opinion denying rehearing), is an example where we rejected the idea that a trial court had the authority to reduce or suspend a defendant’s sentence where the General Assembly made such a sentence mandatory. There, we upheld the trial court’s ruling that it did not have the authority to suspend the defendant’s sentences because the sentencing provisions of the Omnibus DWI Act required imprisonment. The court explained its holding in part as follows:
Could a law be more plain that the legislature wanted it unmistakably clear certain things were mandatory? The legislature, not the courts, decides what is a crime and, within limits, what a sentence will be. So long as those sentences are not unconstitutional for some reason, it is our duty to enforce those laws. To do otherwise in this case would be to subvert a clear prerogative of the legislature.
Here, as in Lovell, the trial court had no authority to suspend appellee’s six-year sentence which the General Assembly made mandatory. Because the trial court exceeded its authority by ignoring the dictates of § 5-4-104(a) and by suspending imposition of five of the six years awarded the appellee, we must reverse and remand. In doing so, we direct the trial court’s judgment and commitment order be corrected to impose a sentence of six years pursuant to § 5-4-501 (a)(4) and to delete any reference to the suspension of imposition of that sentence. See Griffin v. State, 276 Ark. 266, 633 S.W.2d 708 (1982).
In assuming that this court would rule § 5-4-104(e)(4) applies to non-jury trials, appellee also makes some brief reference to an equal protection argument, but appellee did not argue or develop this issue below. Nor does appellee offer convincing argument or cite authority for the argument now advanced on appeal. | [
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J. Fred Jones, Justice.
William E. Mosley was convicted of the crime of voluntary manslaughter in connection with the death of Garland Little and was sentenced to seven years in the penitentiary. Mosley has designated the entire record on appeal to this court but has filed no abstract and brief.
The Attorney General has filed a brief in support of the state’s motion to affirm for want of error appearing on the face of the record, and has filed an abstract of the record in accordance with rule 11 (f) of this court. We have examined the entire record and find no error that would call for a reversal in this case.
The homicide in this case grew out of a free-for-all brawl in a combination bar and pool hall in which the appellant Mosley and several other people were involved. It appears that the brawl started wnen a barmaid tripped over a wire behind the bar and her boyfriend, who was present, thought another one of the patrons had pushed her. The record discloses that practically all of the patrons got into the act of fighting each other with fists, bar stools and pool cues.
Donald Thacker testified that he was not involved in the fight but was present and observed all of it from behind the bar. He said people were swinging pool sticks and bar stools and that he saw Garland Little on the floor getting beat up. He said that Little was crippled and as he got up from a bar stool where he was sitting, he pulled Mosley’s hair. He said Jimmy Burris struck Little in the side with a bar stool and knocked him down. He said that Mosley then seemed to go berserk and started beating Little on the chest and head with a pool cue. He said Little remained on the floor while Mosley stood over him and beat him with the pool cue. He said he observed Lloyd Lonberger trying to get Mosley to stop beating Little, and that the fight was all over when Mosley did finally stop beating Little with the pool cue. He said he did not see Little get to his feet again after the beating. He said that one of Little’s eyes was hanging out of its socket; that his other eye was badly swollen and he was unable to talk when the ambulance came for him. Little died in a hospital from subdural hematoma approximately ten days following the beating.
We are of the opinion that there was ample evidence to go to the jury in this case and that the evidence is sufficient to sustain the verdict and the judgment rendered thereon. Finding no error in the record, the judgment is affirmed.
Affirmed. | [
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Conley Byrd, Justice.
Appellant Jerry Lyle Caldwell for reversal of his convictions of burglary and grand larceny contends that the evidence was insufficient and that, assuming the sufficiency of the evidence, there was insufficient proof of value to sustain a grand larceny conviction. We find no merit in either contention.
The proof, stated in the light most favorable to the trial court’s finding, shows that appellant was doing business in Little Rock as Caldwell Safe & Lock Company and as such had an employee by the name of James Collins. Collins generally rodé home from work with appellant, unless he spen) the night at appellant’s home. Both Collins and appellant testified that they had been at appellant’s home until 11:00 p.m. on November 20, 1970, when appellant left to take Collins home. Appellant’s wife had retired for the night before they left home. While in route from appellant’s home in Little Rock located at 2607 Johnson Street, to Collins’ home at 2119 Perry Street, appellant testified that he remembered he had left something cooking on the stove and that he stopped at a phone booth near the Thriftway Food Store located at 7000 Asher Avenue, to call his wife. While making the phone call he heard Collins pop the door to the store and saw him come back with the head to the safe located therein. He says that he asked him “what he thought he was doing taking the safe, because I knew Bob pretty well and I took him out and dumped it out in . . . the pond.” In his confession he stated:
“On Thursday or Friday night approx. Nov. 19 or 20, 1970, between 12:00 midnight and 1:00 a.m. myself 8c Jimmy Collins went to the Thriftway food store at 7000 Asher Ave. I was driving a 1966 Mustang and parked by the phone booth at the Deep Rock Service Station across from the store. I went into the phone booth & Jimmy left the car & took a Jimmy Bar & popped the front door open. Jimmy Collins carried shavings from a Mosler safe, with him into the store because the shavings if analyzed would match the shavings or metal from the safe in the grocery store. The safe was locked and Jimmy opened the safe with the combination. Jimmy was with me when I changed the combination & he had the combination. Jimmy got the safe open 8c there was no money in the safe. Jimmy come out of the store 8c brought the safe top with him 8c left the metal shavings near the safe. He got in the car 8c I drove to Rodney Parham 8c Reservoir Road where Jimmy got out and threw the safe top into a pond of water on the west side of Reservoir Road. Then we drove off 8c went home. Jimmy stayed with me that night 8c worked for me at the store.”
Mrs. Robert Davis testified that she and her husband owned the Thriftway Supermarket at 7000 Asher Avenue and that they in connection with their business used the services of Caldwell Safe 8c Lock Company. After the break-in appellant was called to replace the safe head, and while there he was sympathetic with them and told them that most robberies like that were inside jobs. Mrs. Davis testified that the value of the safe head would be over $100.
James Collins stated he and appellant went from work to appellant’s home where they had some drinks. He had with him a paper bag containing some safe cuttings and a long screw driver which he intended to use in burglarizing the Thriftway Supermarket. His intentions were to go home, borrow his step-dad’s car and come back and do the job, but when appellant stopped to make the call he went on and did it. When asked if there was any prior plan or agreement between him and appellant to participate, he answered:
“Well, there wasn’t a plan or an agreement. I asked him what he thought about doing it and he said that I better not do it.”
The testimony of the officers was to the effect that divers were unable to find the safe head in the pond pointed out to them. While appellant contends that he was only taking Collins home when he stopped to phone his wife, the fact remains that, notwithstanding his prior conversations relative to the burglary, he conveniently stopped near the Thriftway Supermarket, transported Collins to an alleged disposal area, and then returned to appellant’s home to spend the night. Furthermore, he conversed with Mrs. Davis about the burglary the next day but neglected to mention Collins’ conduct. We find the evidence sufficient to support appellant’s conviction as a principal.
The owner’s testimony as to value was sufficient to support the grand larceny charge. See Polk v. State, 252 Ark. 320, 478 S.W. 2d 738 (1972).
Affirmed. | [
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John A. Fogleman, Justice.
Appellant Jess Henderson relies upon five points for reversal of his conviction of the offense of delivery of a controlled substance, heroin. They are:
I. The Court erred in refusing to quash the indictment.
II. The Court erred in refusing to grant a mistrial.
III. The Court erred in refusing to grant a directed verdict.
IV. The Court erred in refusing to give defendant’s requested Instructions No. 1 and 3.
V. The Court erred in refusing to grant a new trial.
We find no merit in any of them.
I. Appellant was indicted by a grand jury. He was charged with unlawfully delivering heroin on May 11, 1972, in violation of Act 67 of 1972 and Act 590 of 1971. The name of the person to whom the delivery was made was not alleged in the indictment. The indictment did not specifically allege that appellant was not a person authorized to deliver heroin. His motion to quash the indictment, which included these and other grounds not argued here, was denied. The trial court, however, treated his pleading as a motion for a bill of particulars. The state filed a bill of particulars, stating that the delivery was made to Janice Sue Smith. No further objection to the indictment was made by appellant prior to trial. The action of the trial court was proper under Ark. Stat. Ann. § 43-1024 (Repl. 1964) which permits the prosecuting attorney to amend an indictment or file a bill of particulars. The bill did not, however, state that Henderson was unauthorized to deliver such drugs. There was no error in this respect. It was only necessary that the indictment name the offense and the party charged. Ark. Stat. Ann. §§ 43-1006, 1008 (Repl. 1964). It is not necessary that the acts constituting the offense be stated unless the offense could not be charged without doing so. Estes v. State, 246 Ark. 1145, 442 S.W. 2d 221. The act which appellant was accused of violating contains a section, now appearing in Ark. Stat. Ann. § 82-2630 (Supp. 1971), providing that it is unnecessary for the state to negate any exemption or exception in the act in any indictment and that the burden of proof of any exemption or exception is upon the person alleging it. This section also contains a provision that in the absence of proof that a person is the duly authorized holder of an appropriate registration, he is presumed not to be, and that the burden of proof is upon that person to rebut the presumption. The act under which appellant was charged provides that “[ejxcept as authorized by this Act, it shall be unlawful for any person to deliver, # * * a controlled substance.” There was no error in this regard.
II. Appellant’s contention that a mistrial should have been granted is based upon multiple actions of the trial judge. After the jury was selected but before any evidence had been presented, appellant, out of the hearing of the jury, registered an objection to the introduction of any evidence pertaining to any crime other than that charged in the indictment, and, specifically, relating to the death of Janice Sue Smith, to whom the state contended the heroin was delivered. The trial judge refused to restrict the prosecuting attorney at that time, but admonished him not to inject this fact unless necessary. During the opening statement by the prosecuting attorney, appellant’s objection to a statement to the effect “that we are dealing with human lives” was overruled. The first witness called was Dr. Mae Nettleship, who, in responding to a query whether she had done a drug or blood analysis on Janice Sue Smith, stated that she had done an autopsy. Appellant’s attorney promptly objected, asked that the jury be admonished not to consider this statement and warned that, upon repetition, he would request a mistrial. The court did not specifically rule on the objection or admonish the jury. Later, when asked if it were possible for her from her observations to make a determination as to the time of injection of heroin, this witness stated she and Dr. Vinzant worked together, and he always made the observations and conclusions in relation to the time of death. When appellant objected, the circuit judge admonished the jury to disregard that part of the testimony relating to death. No motion for the declaration of a mistrial was made.
Thereafter, the prosecuting attorney was permitted to question Dwight Wells, over appellant’s objection, about his having purchased heroin from appellant on the date the offense was alleged to have occurred. When the prosecuting attorney repeated a question to Wells, a witness called by the state, as to whether he saw appellant give any drugs to Janice Sue Smith, appellant’s attorney objected on the basis that this was an attempt to impeach the state’s witness. The prosecuting attorney then asked and received permission to treat Wells as a hostile witness, claiming surprise on the basis of a pretrial statement made by him to the prosecuting attorney. The court granted this permission and allowed the prosecuting attorney to ask leading questions, all over appellant’s objection. After a few questions with reference to testimony given the prosecuting attorney by Wells some time before the trial, appellant’s attorney objected and moved for a mistrial on the basis of these questions, together with the circuit judge’s remarks in overruling appellant’s objection that the witness was not hostile, that it was sufficient that the prosecuting attorney was taken by surprise, that the witness was a hostile witness and that the prosecuting attorney could ask leading questions. After the witness had been extensively examined and cross-examined about the statement, the prosecuting attorney asked the witness whether the content of the statement or his testimony was the truth. When the court overruled appellant’s objection that the question invaded the province of the jury as the judges of the credibility of the witness, appellant moved for a mistrial on the basis of the court’s remarks.
Although appellant seems to take the position that he made numerous motions for a mistrial, we find only two occasions when such a motion was made, and they related more particularly to remarks by the circuit judge. There was no error in the court’s holding that there was a basis for the claim of surprise, so it was proper for the court to permit the prosecuting attorney to cross-examine Wells about his prior inconsistent statement. Ark. Stat. Ann. § 28-706 (Repl. 1962); Fisher v. State, 241 Ark. 545, 408 S.W. 2d 894; Shands v. State, 118 Ark. 460, 117 S.W. 18. We find no abuse of discretion in permitting the cross-examination or denying the motions for mistrial.
III. Appellant -contends there is no evidence that he delivered heroin to Janice Sue Smith. This question must be approached with the understanding that the delivery may be shown by circumstantial, as well as direct, evidence. See. Miller v. City of Helena, 224 Ark. 1016, 277 S.W. 2d 841; Dixon v. State, 67 Ark. 495, 55 S.W. 850; Wimberly v. State, 214 Ark. 930, 218 S.W. 2d 730. As we view the matter, appellant’s principal complaint is that there is no direct evidence that he made the delivery. But we find the circumstantial evidence to rise above that we have held to be insufficient in other cases because it left the jury only to speculation and conjecture in determining whether any other hypothesis except the defendant’s guilt was reasonable. See, e.g., Jones v. State, 246 Ark. 1057, 441 S.W. 2d 458.
In spite of the fact that Dwight Wells, the principal witness for the state, was obviously reluctant to testily in the case, and there were conflicts and inconsistencies in his testimony, we cannot say that it was not substantial. Wells, a resident of Huntsville, said he had lived with Janice Sue Smith off and on for four or five years, and was living with her on May 11, 1972, the date of the alleged offense. There are many facts disclosed by Wells’ testimony which are undisputed and as to which there is no question about the inferences to be drawn. He testified to the following before being granted immunity from prosecution:
He had been a user of whatever drjug was available including heroin. The Smith girl also used drugs including heroin. He had known Henderson for a couple of years, and had purchased drugs from him on several occasions. On May 11, 1972, he and Janice Sue came to Fayetteville in Wells’ car to get some drugs.
When asked to whom he went to obtain the drugs, Wells responded that he’d rather not answer the question. The prosecuting attorney stated he would like to grant the witness immunity from prosecution, and appellant objected. The court directed the witness to answer, advising him that testimony he gave would not be used against him in a criminal prosecution, except for perjury. The witness still seemed reluctant to answer the prosecuting attorney’s questions, but said that he saw Janice get her drugs. When asked if she got them from Henderson, Wells said he’d rather not say and then denied knowledge of the identity of the person from whom she got her drugs. He stated that she saw Henderson, that he (Wells) was present and received an affirmative answer to his inquity whether Henderson had any drugs, and that Henderson gave Wells some heroin wrapped in a little package at the time Janice Sue was in another room. He then related substantially the following:
He and Janice Sue arrived at Henderson’s apartment on Cleveland Street about dark, but found him at a house next door. They then went with Henderson to his apartment. Wells took with him the drugs given him by Henderson, which were worth $10 and wrapped in a little package. Janice Sue did not have any drugs at that time, but did later. Wells did not know where she got the drugs, and did not hear any conversation between her and Henderson about drugs, but he was present when she used the drugs she had about 45 minutes to one hour after they arrived. After using the drugs Janice Sue stayed in the bathroom and later “fell over.”
After objections to impeachment of the witness were made and overruled, Wells was asked about his recollections concerning a statement he had made to the prosecuting attorney on July 24, 1972. He recalled testifying before the prosecuting attorney that Janice Sue Smith was at Henderson’s apartment on Cleveland Street when she got $10 worth of heroin from Henderson and admitted that these statements were true, as fax as he knew. He also affirmed the correctness of his answers that the heroin was wrapped in tinfoil, that he got his heroin just a few minutes before Janice got hers, that he was to pay $10 for his and had the same understanding with Henderson in relation to that which Janice got. He also admitted that Henderson handed the heroin to Janice, as far as he knew. Wells then testified that, between him and Janice, he bought two “hits” at $10 each or a total of $20.
On cross-examination, Wells confirmed much of his previous testimony. He admitted making the statement to the prosecuting attorney and that his father was present at the time. He said his attorney was present at the beginning of it. He declined to say that the content of the statement was untrue. Specifically he said:
He had previously bought drugs from Henderson in Fayetteville several times when Janice was present. He was not present when Janice got drugs from anyone on May 11, 1972, and did not see Henderson deliver any narcotics to her on that occasion or hear any conversation between Janice and Henderson. He did see Janice while at Henderson’s with heroin wrapped in tinfoil. Henderson and another man were the only persons present at the house where he found Henderson. They all remained at this house for about a half hour, but no one else was present when he received his drugs from Henderson. When he took the drugs at Henderson’s house, he used the syringe that Henderson also used in his presence.
After cross-examination, Wells explained the difference in his testimony and the statement by saying he did not see Henderson put the drugs in Janice’s hand, but, while he and Janice were in the kitchen, she went into the bathroom with drugs at a time when only he, Janice and Henderson were in the house. He also reaffirmed his statement that he and Henderson had discussed money at the house to which he and Janice first went.
On recross-examination, Wells again said: It was true, as he had told the prosecuting attorney, that he helped Janice “shoot up.” Both his pretrial statement and his testimony were true.
Whatever contradictions, conflicts and inconsistencies there were in Wells’ testimony from the witness stand were for resolution by the jury, which could believe those parts of his testimony they believed to be true and disregard those they believed to be false. Reserve Loan Line Ins. Co. v. Compton, 190 Ark. 1039, 82 S.W. 2d 537; Houpt v. State, 249 Ark. 485, 459 S.W. 2d 565; Bartley and Jones v. State, 210 Ark. 1061, 199 S.W. 2d 965; Powell v. State, 149 Ark. 311, 232 S.W. 429. Most of the contradictions were more apparent than real. They arise by reason of Wells having stated to the prosecuting attorney that Henderson delivered the drugs to Janice Sue Smith and his having testified during the trial that he did not see the delivery made. The jury would have been justified in concluding that Wells’ statement to the prosecuting attorney was based upon circumstances which clearly indicated to him that the delivery was made by Henderson. We think the evidence clearly affords a reasonable basis for that belief, both by Wells and by the jury. We find the circumstantial evidence sufficient to support the jury verdict.
Appellant also argues that the testimony of Wells, who was treated by the trial court as an accomplice as a matter of law, was not sufficiently corroborated. Euletta Mae Jones, another reformed drug addict, testified that she had been acquainted with Wells, Henderson and Miss Smith in May 1972. She knew that Janice Sue had an overdose of drugs on May 11, 1972, at Jess Henderson’s house. She had gone to the Henderson house that evening and found Wells, Henderson and Janice Smith there, but left when she learned what had happened. According to Mrs. Jones, those present were worrying about Janice. On a subsequent date she went to Henderson’s place with him. While there, Henderson started talking about the events of May 11. He told Mrs. Jones that he had intended to “do the first hit,” as he had always done, but Janice wanted to “do it because she hadn’t gotten off in a long time.” According to Mrs. Jones, he stated that when Janice insisted, he went ahead and let her do the first hit.
In spite of the fact the trial court considered Wells to be an accomplice of Henderson under the evidence, we do not so consider him. He was nothing more or less than a purchaser of heroin for use by his paramour. If he was the accomplice of anyone, it was Janice Sue Smith, not Jess Henderson. The purchaser is not the accomplice of the seller, nor the recipient, of the deliverer, in spite of the fact that mere possession is a violation of the law defined by the same statute as that under which a defendant is charged. We have passed specifically upon the question where it was asserted that the purchaser was an accomplice of the seller. See Sweatt v. State, 251 Ark. 650, 473 S.W. 2d 913.
There is some apparent conflict in the authorities from other jurisdictions as to whether one who recommends, or directs a purchaser to, a seller of illicit drugs is an accomplice of the seller. In Arkansas, an accomplice, under the statute forbidding conviction of a felony on uncorroborated testimony of an accomplice, is one who could be convicted of the offense of which the defendant is charged. Havens v. State, 217 Ark. 153, 228 S.W. 2d 1003. In Rich v. State, 176 Ark. 1205, 2 S.W. 2d 40, we held, upon the authority of Wilson v. State, 124 Ark. 477, 187 S.W. 440, that one who assists a purchaser in buying intoxicating liquors and confines his participation in the transaction exclusively to the buying, not the selling, is not guilty of the offense, and not an accomplice. See also, Eddy v. State, 165 Ark. 289, 264 S.W. 832; Hobson v. State, 175 Ark. 1169, 299 S.W. 8. We have also held that one who was employed as a laborer in the operation of a whiskey still and was an accomplice in its operation and in manufacturing liquor, was not an accomplice of his employer in the possession of the still, because he could not be convicted of the crime of possessing a still, either as a principal or accessory. Henderson v. State, 174 Ark. 835, 297 S.W. 836. In Beck v. State, 141 Ark. 102, 216 S.W. 497, we held that one who acted only as the agent of the buyer of intoxicating liquors and had nó other interest in the sale, was not an accomplice of the seller. So long as one acts solely on behalf of the purchaser, he is not an accomplice of the seller. Ellis v. State, 133 Ark. 540, 202 S.W. 702.
Under the same rationale, other jurisdictions have held that a “facilitator” of a sale of illicit drugs is not an accomplice of the seller, so long as he is interested only on behalf of the buyer. See United States v. Moses, 220 F. 2d 166 (1955); People v. Branch, 13 App. Div. 2d 714, 213 N.Y.S. 2d 535 (1961); Commonwealth v. Harvard, 356 Mass. 452, 253 N.E. 2d 346 (1969); People v. Lindsey, 16 App. Div. 2d 805, 228 N.Y.S. 2d 427, aff’d 12 N.Y. 2d 958, 238 N.Y.S. 2d 956, 189 N.E. 2d 492 (1963). These holdings are more compatible with our general test of the status of a witness as an accomplice and with our cases relating to dealing in intoxicating liquors than decisions in jurisdictions holding to the contrary.
There is not a word of evidence to align Wells with the alleged deliverer, Henderson, in this case. His entire interest, so far as this record discloses, was to obtain the heroin for his paramour. Furthermore, even if Wells were properly treated as an accomplice of Henderson, the statements attributed to appellant by Mrs. Jones certainly tended to connect him with the delivery of heroin to Janice Sue Smith. Certainly someone delivered this controlled substance to her. The testimony of Mrs. Jones, if believed, rather than going to show the commission of an offense, along with its attendant circumstances, definitely, but independently of the testimony of Wells, tends in some degree to connect Henderson with the delivery and rises above a mere suspicion of guilt. This was all that was required, even if this evidence itself be considered circumstantial. Jones v. State, 254 Ark. 769, 496 S.W. 2d 423; King v. State, 254 Ark. 509, 494 S.W. 2d 476. The sufficiency of this evidence was for the jury. Austin v. State, 254 Ark. 496, 494 S.W. 2d 472; King v. State, supra.
IV. Appellant’s contention relating to the court’s failure to give his requested instructions 1 and 3 is grounded upon the alleged failure of the court to advise the jury that, in order to find Henderson guilty, it must find that he was not authorized by law to deliver heroin. There was no evidence whatever that Henderson had any authority to do so. The circuit judge did instruct the jury that it was unlawful for any person to knowingly deliver a controlled substance, unless pursuant to a valid prescription of a practitioner while acting in the course of his professional practice. This instruction, along with the instruction that the state must prove the defendant guilty beyond a reasonable doubt, was adequate to advise the jury on this score. In view of this coverage in other instructions, we find no prejudicial error in the refusal of these instructions.
V. The only grounds of appellant’s motion for new trial that are argued here relate to points for reversal already discussed.
Since we find no reversible error, the judgment is affirmed.
HARRIS, C.J., not participating. | [
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Frank Holt, Justice.
The appellant was convicted by the trial court, sitting as a jury, of using abusive language in violation of Ark. Stat. Ann. § 41-1412 (1964 Repl.) and violating Ark. Stat. Ann. § 41-2801 (1964 Repl.) by resisting arrest. Her punishment was assessed at $50 and costs and 30 . days in jail on each offense with the jail sentences suspended. Appellant first attacks the constitutionality of § 41-1412 (breach of peace statute) as being violative of the federal First and Fourteenth Amendments.
Appellant asserts that the statute is overbroad, vague, unconstitutional in its application and cannot be given a narrow construction to limit abusive language to “fighting words.” § 41-1412 reads in pertinent part as follows:
“If any person shall make use of any profane, violent, vulgar, abusive or insulting language toward or about any other person in his presence or Hearing, which language in its common acceptation is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause . a breach of the peace or an assault, shall be deemed guilty of a breach of the peace_”
Appellant’s contentions as to the constitutionality of this statute were determined adversely in our very recent case of Lucas v. State, 254 Ark. 584, 494 S.W. 2d 705 (1973). There we considered various federal cases including Gooding, Warden v. Wilson, 405 U.S. 518 (1972), upon which appellant also relies. In Lucas, in upholding the constitutionality of our breach of the peace statute, we construed and restricted its application as to abusive language to “fighting words” and, therefore, our statute met the standard required in Chaplinsky v. New Hampshire, 315 U.S. 568 (1941), from which we quoted at length. There it was held that not all speech is constitutionally protected and included among these categories are “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Fighting words must be of such a nature as “likely to provoke the average person to retaliation, and thereby cause a breach of the peace.” Chaplinsky v. New Hampshire, supra. Appellant admits that the right of free speech is not an absolute guarantee by our federal First Amendment. Schenck v. United States, 249 U.S. 47 (1919), and Whitney v. California, 274 U.S. 357 (1927).
It appears clear from Chaplinsky that any statute punishing or regulating the use of abusive language must be limited to fighting words. If the statute appears vague and unclear on its face, it can be preserved by the courts when restricted in its application to “fighting words” as defined by Chaplinsky. In other words, only that vile or abusive language which arouses anger to the extent likely to cause retaliation — fighting words — are within the meaning of the statute. With this standard or test in mind, we now turn to the evidence in this case.
A local policeman went to appellant’s residence for the purpose of arresting a relative of appellant on a charge of possessing stolen property. When the officer attempted to effect the arrest, the appellant called the officer “pig, son-of-a-bitch, mother f-.” She also called him “a jive white ass punk.” She was asked to “hush” and be “quiet;” however, she continued to repeat the epithets after another officer arrived. Appellant only denied that she called him a pig and son-of-a-bitch. She “guessed” that it was her purpose to make the officer “mad.”
It is unnecessary to show or prove that abusive language caused a fight — it is only necessary that the abusive words were likely to cause a fight or retaliation. Furthermore, the court can take judicial notice that abusive language used by the addresser constitutes fighting words. In Chaplinsky, supra, the court recognized that:
“Argument is unnecessary to demonstrate that the appellations ‘damned racketeer’ and ‘damned Fascist’ are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace.”
Likewise, we are of the view that argument is unnecessary to demonstrate the language or epithets used by appellant in the case at bar were likely to provoke an average person to retaliate and cause a breach of the peace. We cannot conceive that the First Amendment, which guarantees freedom of speech, was formulated with the view that such insulting, vulgar and inflamatory language as used by the appellant in the case at bar, supposedly to arouse anger, was envisioned as being within the bounds of freedom of speech.
Appellant next asserts that the evidence as a matter of law is insufficient to support the finding by the trial court. Without reiterating the language used, we think the evidence amply sufficient and substantial to support the trial court’s finding that the appellant violated § 41-1412 (breach of the peace). As to § 41-2801 (resisting arrest), the state adduced evidence that when the officer attempted to arrest appellant she resisted, struck him with a phone, and it became necessary for the officer to have the assistance of a fellow officer. This evidence is substantial and we affirm whenever there is any substantial evidence to support the trial court’s finding.
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Mehaeey, J.
This suit was begun by appellee to recover on two benefit certificates of $1,000 each issued on December 1, 1928, and April 1, 1929, upon the life of Opal Gann, and payable to appellee as husband of said Opal Gann. Opal Gann died on the 24th day of May, 1929, and prior to her death she had paid the assessments due upon said certificates which amounted to the sum of $13.80. The appellant filed answer in which it admitted the allegations of the complaint, but alleged that certain answers in the application of Opal Gann were warranties and were untrue.
One of the questions was No. 52 and was as follows:
“Q. Name all diseases or injuries for which you have consulted a physician for five years. A. None.”
The appellant alleged that the said Opal Gann signed and certified to said application in the following words: No. 66. “I hereby certify that I have carefully reviewed the answers to the above questions and warrant and agree that they are written as stated by me and are true in every particular”; that in the application for membership and for the second certificate the said Opal Gann, in answer to question No. 76 in said second application, stated as follows:
“Q. No. 76: I hereby certify that I have carefully reviewed the answers to the foregoing questions, 39 to 74, inclusive, and I warrant and agree that they are written as stated by me and are true in every particular, and that they supplement answers made upon my original and former examination or examinations in the Maccabees.”
Appellant further alleged that said applicant, Opal Gann, agreed to conform to the bylaws, rules, and usages of appellant’s society then in force or thereafter enacted, and the articles of association and laws of the Maccabees in force at her death together with her application and medical examination and certificate of membership shall form the basis and constitute her contract for beneficiary membership in the Maccabees; that any untrue statement or answer, or any concealment of facts in said application, would forfeit the rights of herself and beneficiary to benefits and privileges from appellant, that the said Opal Gann, in the application, when asked the question No. 52: “Q. Name all diseases or injuries for which you have consulted a physician within five years. A. None.”
Appellant states that these answers or statements were false and untrue, and that the appellant relied upon the truthfulness of them, that they were warranties, and that the benefit certificate sued on never did go in force and effect but was void.
Appellee filed a reply to this answer denying the allegations as to the warranties.
Appellant defended on the ground that the policies were void. It contends that the answers to the questions above set forth were warranties and were false. It calls attention to and relies on the case of Providence Life Assurance Society v. Reutlinger, 58 Ark. 528, 25 S. W. 835.
Appellant quotes from that case as follows: “As a general rule, a warranty is a stipulation expressly set out, or by inference incorporated, in the policy, whereby the assured agrees “that certain facts relating to the risk are or shall be true, or certain acts relating to the • same subject have been or shall be done.”
The court in that case, however, also said in speaking of warranties and representations: “When made to the insurer at or before the contract is entered into, they form a basis upon which the risks proposed to be assumed can be estimated. They operate as the inducement to the contract. Unlike a false warranty, they will not invalidate the contract, because they are untrue, unless they are material to the risks, and need only be substantially true. They' render the policy void on the ground of fraud, “while a noncompliance with a warranty operates as an express breach of the contract. * * * All reasonable doubts as to whether they be warranties or not should be resolved in favor of the assured.”
Appellant next calls attention to Metropolitan Life Ins. Co. v. Johnson, 105 Ark. 101, 150 S. W. 393. In this case the court said: “The questions propounded in the application, as set out in the statement of facts, calls for answers founded on the knowledge or belief of the applicant, and in such cases a misrepresentation or omission to answer will not avoid the policy unless wilfully or knowingly made with an attempt to deceive. ’ ’
The answers in that case were somewhat like those in this case and the declaration of the applicant at the close was very similar to the answers and declaration in the instant case. It was stated in the application: “Every answer must ¡be true or the policy will be void.”
Next case relied on by appellant is Brotherhood of American Yeomen v. Fordham, 120 Ark. 605, 180 S. W. 206. In that case the court said:
“In the beneficiary certificate before us it was agreed that the answers onade to the medical examiner should be warranties, and that any false or untrue statement or answer should operate to forfeit the rights of the beneficiary. The evidence is undisputed that the insured had a severe attack of typhoid fever in the latter part of 1905 and that disease of the heart and other diseases often result therefrom. The court therefore should have directed a verdict in favor of the insurance association.”
The appellant next quotes from and relies on Bankers’ Reserve Life Co. v. Crowley, 171 Ark. 135, 284 S. W. 4. It quotes as follows:
“A noncompliance with a warranty operates as an express breach of the contract of insurance, while false representations render the policy void on the ground of fraud.” Immediately following this statement in the opinion is the following: “The questions propounded in the application as set out above call for answers founded on the knowledge or belief of the applicant, and a misrepresentation or omission will not avoid the policy unless wilfully or knowingly made with an intent to deceive. * * *
“Ip Mutual Aid Union v. Blacknall, 129 Ark. 450, 196 S. W. 792, it was held that knowledge affecting the rights of the insured, which comes to the agent of the insurance company while he is performing the duties of his agency in receiving applications for insurance and delivering policies, becomes the knowledge of the company; and the insurance company is bound thereby, where the ag’ent who solicited the business was charged with the duty of asking the applicant questions concerning his physical condition.”
In the instant case the questions as to whether the insured had consulted a physician or physicians was not asked; the question was: “Name all diseases or injuries for which you have consulted a physician within five years” and the answer written by the agent of the company was “None.”
The undisputed proof shows that this was not the answer, but that both Gann and Mrs. Gann told the agent about being injured from lifting' a piano. The agent of the company himself Says, when asked what answer Gann gave him: “As well as I remember he advised me that she had not had any disease or accident, but he mentioned the fact that at one time, the date of which I do not recall, as he stated to me, she assisted in moving a piano. And after assisting’ in that work she had a hemorrhage, ¡but he said it did not amount to anything, as he recalls, and so he wrote in reply to the question “None.”
He was then asked: • “Did he tell you whether or not there was a doctor to treat her or consult her for that injury or illness?” He answered: “I think maybe he did.”
Then, he testified, they went to see Mrs. Gann, and he said she made about the same answers that Gann did and told him of this incident, and the witness said: “Well, Dr. Lipsey will have to review this, and he can fill in as he thinks best” and he just let the word remain there subject to Dr. Lipsey’s changing.
Whether the answers were representations or warranties is immaterial in this case because the evidence shows that the agent of the insurance company was advised that she had consulted a doctor about injury and hemorrhage. It is true that one doctor for the insurance company testified that she had tuberculosis and consulted him. This evidence, however, is contradicted by other witnesses and by the circumstances.
Then the physician representing the company examined Mrs. Gann privately, and had an opportunity- to ascertain her condition, and he says there was no one present when he made the examination, and he said that Mrs. Gann told him that she had not been treated for anything that amounted to anything, nothing worth mentioning, and he does not remember whether she told him she had consulted a physician or not. But when the in sured stated to the doctor that she did not think her ailments amounted to anything, that statement in itself was sufficient to put him on notice that she had ailments, hut that in her opinion they did not amount to anything. If the company wanted to know, or he wanted to know, what the ailments were, he should have inquired. This doctor also said at the time that he examined her: “She was apparently the perfection of.health.”
Notwithstanding the assured was in excellent health at the time of the application, and notwithstanding the fact that the company’s physician examined her and was advised that she had some ailments but that .she did not think they amounted to anything, still the company seeks to avoid the policy by undertaking to enforce strictly the rule, harsh and unfair as it is, that, if the answers were not literally true, recovery cannot be had, regardless of the good faith of the applicant.
A warranty is in the nature of a condition precedent; it must appear on the face of the policy; it cannot be created or extended by construction.
“The practical operation of such literal warranties is so often harsh and unfair that courts require their existence to be evidenced clearly and unequivocally, and are not inclined to allow it to rest upon a mere verbal interpretation where a reasonable construction of a contract as a whole will authorize a different meaning. All reasonable, doubts as to whether statements inserted in or referred to in an insurance policy are warranties or representations should be resolved in favor of the insured.” Modern Woodmen of America v. Whitaker, 173 Ark. 921, 293 S. W. 1045.
The difference between warranties and representations is discussed at length in the case of Modern Woodmen of America v. Whitaker, supra, and it is unnecessary to discuss it further here. The principles announced in that case are applicable here.
For the reasons given above, instruction No. 2, objected to by appellant, was not erroneous. The appellee would have been entitled to recover in this case, however, if the answers to the questions had been warranties.
Appellant also insists that the court erred in its failure to give the following instruction requested by it: “You are told, gentlemen, as a matter of law, the policy, the application for insurance, the medical examination, the bylaws of the association, altogether create the contract sued on in this case.
A sufficient reason for refusing to give this instruction is that the bylaws make the articles of incorporation a part of the contract, and these were omitted from the requested instruction.
In addition to this, it was made perfectly clear to the jury what the contract was. Instruction No. 3 requested by defendant was properly refused. Certainly there is no evidence that the beneficiary had knowledge that the policies were procured through false warranties. All the proof shows that there was no intentional false statement, and that both the agent and the physician who made the examination were in possession of facts from which they could have learned, if they had made inquiry, everything that they now claim that they did not know.
We find no reversible error in the case, and the judgment of the circuit court is affirmed. | [
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Hart, C. J.
Appellant prosecutes this appeal to reverse in part a foreclosure decree for real estate, declaring another mortgage on it a prior lien.
The record.shows that -C. M. Flynn and Nath Morris were engaged in the mercantile 'business as partners, which partnership was terminated by the death of Nath Morris July 15, 1919. The interest of decedent in the partnership was inherited by his four children. According to the testimony of C. M. Flynn, he and the heirs of Nath Morris, deceased, entered into a written contract under which they were to give mortgages to each other to secure any indebtedness the court might find would be due from one to the other in winding up the Morris and Flynn partnership. Flynn gave a mortgage to E. E. Morris, Jr., under the terms of the contract. On November 2,1923, in compliance with the contract, E. E. Morris, Jr., gave to C. M. Flynn a mortgage on the land in question for the purpose of securing him to the extent of one-fourth of the liability that might be found to be due him when the affairs of said partnership were completely wound up. This mortgage was filed for record on February 14, 1924. A suit for accounting was commenced in the Lonoke Chancery Court on July 14, 1924, but the record does not clearly show which of the interested parties brought the suit.
There was a mortgage executed on the land in question by E. E. Morris, Jr., to Morris & High to secure an indebtedness due them on January 30, 1924, and this mortgage was duly assigned to C. V. Holloway on March 28, 1925. The chancellor found that there was due the sum of $423.12 on this mortgage, and it was held to be a prior lien on the land in question. Hence no further reference need be made to it.
The court further found that there was due appellant $810 on a subsequent mortgage transferred to him which had been duly filed for record December 17, 1924, on the land in question. The court held that this amount was a junior and subsequent lien to the C. M. Flynn mortgage which had been filed for record February 14, 1924.
The question of the priority of these mortgages is the only issue to be determined by the appeal. . The record shows that the mortgage from E. E. Morris, Jr., to C. M. Flynn was filed for record before a mortgage which was transferred to appellant. This is conceded, but it is insisted that the Flynn mortgage is barred by the statute of limitations,
The partnership of Morris and Flynn was dissolved by the death of Nath Morris, and C. M. Flynn, as surviving partner, became, entitled to the possession and management of the firm property for the purpose of settling the partnership accounts. Hill v. Draper, 54 Ark. 395, 15 S. W. 1025.
No specific money claim or demand can exist in favor of one partner against another growing out of the partnership affairs until there has been a settlement and some amount found to be due from one to another. Hence, until the affairs of the partnership are wound up, the state of the account between the partners is inchoate and continuous. Evans v. Hoyt, 153 Ark. 334, 240 S. W. 409.
In this view of the matter, it will be seen that the statute of limitations has not run on the settlement of the partnership indebtedness because the parties have not entered into an agreement between themselves, and there has been no judgment in the court settling the partnership affairs.
The case of Williams v. Walker, 148 Ark. 49, 229 S. W. 28, has no application for the reason that the partnership in that case was not dissolved by death. When a partnership is dissolved by the agreement of the parties, the statute of limitations of three years will commence to run; but in case the partnership is dissolved by the' death of one of the partners, as we have already seen, the surviving partner has the right to take charge of the partnership assets and to take charge of the accounts. If the surviving partner does not make a settlement within a reasonable time, the heirs of the deceased partner or his representative may bring an action in the chancery court to compel a settlement. Such action seems to have been brought in the present case on the 14th day of July, 1924, but it does not appear which one of the parties brought it. This is immaterial, however, for the bringing of the suit shows that there has been no settlement of partnership affairs. No proof of laches on the part of Flynn is made. This is also conclusively shown by the mortgage which was executed by E. E. Morris, Jr., one of the heirs of Nath Morris, to C. M. Flynn, to secure him for any indebtedness that he might be owing the partnership when a settlement should be made of the partnership affairs. The fact that this mortgage was executed in November, 1923, and filed for record on February 14, 1924, shows that it was recognized by all the parties in interest that there had been no settlement of the partnership affairs at that time.
It is well settled that the statute of limitations does not begin to run in any case until there is a complete and present cause of action. Cairo & Fulton Rd. Co. v. Parks, 32 Ark. 131 ; and Louisville Silo & Tank Co. v. Thweatt, 174 Ark. 437, 295 S. W. 710.
In the present case, the statute of limitations will not commence to run against the Flynn mortgage until there has been a settlement of the partnership accounts in the chancery court where suit was brought for that purpose. Therefore, the decree will be affirmed. | [
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Carleton Harris, Chief Justice.
This litigation involves an effort by appellants to obtain the names of those persons' who were given complimentary tickets' for all football games participated in by the University of Arkansas, in this State, during the Fall periods of 1969, 1970 and 1971; also, the number of complimentary tickets received by each of those persons. Suit was instituted in the Pulaski Circuit Court seeking to mandamus the Board of Trustees of the University to furnish this information. It might be here stated that other information relative to complimentary tickets was sought in the complaint, but all information has been furnished except the names of the recipients of complimentary tickets. The trial court, after hearing evidence, held that the lists of persons receiving complimentary football tickets to the games played in this State during the years 1969, 1970 and 1971 “are not public records as contemplated by those statutes [Freedom of Information Act], not being by law required to be kept and, further, plaintiffs making no showing of any legitimate personal interest in themselves or the class they represent or legitimate public interest ■being served in said items being made available to them for copying and inspection, that the petition filed herein be dismissed.” From this judgment, appellants bring this appeal. For reversal, it is asserted that the trial court erred in dismissing the petition. A second point is asserted, viz., that the trial court erred in refusing to enforce a request for Subpoenas Duces Tecum.
Appellees set out seven points, i.e., seven reasons, why the judgment of the trial court should be sustained; while more than one appear to contain merit, there is no need to discuss them in this opinion since we are of the view that point “C’V in itself, precludes appellants from prevailing, i.e., the Freedom of Information statute is inapplicable to the lists in issue.
Appellants’ entire position is based upon Act 93 of 1967 (Ark. Stat. Ann. § 12-2801 — 07 [Repl. 1968]), and they argue that, under its provisions, they are entitled to the information sought. Appellants first refer to the “preamble” of the act, but the reference actually is to a portion of the title, as supporting their position. This contention need not be discussed for we have said many times that the title of an act is in no sense controlling, and is only properly considered if the act itself is ambiguous. In Roscoe v. Water and Sewer Improvement District No. 1, 216 Ark. 109, 224 S.W. 2d 556, we said:
“The title of an Act is in no sense controlling, and, like a preamble, or emergency clause, it may be looked to for the purpose of ascertaining a meaning not fully expressed in the Act proper, yet — as we have so often said — where there is doubt as to the legislative intent, due either to ambiguous phrases or a suggested word omission, and where the missing word can be appropriately supplied by determining from the title, preamble, or other collateral phrases just what the lawmakers intended to accomplish, it is then proper to consider any or all of these collateral aids.”
Since we find no ambiguity, there is no reason to consider the preamble, or the tide.
Pertinent portions of § 12-2803 and 2804 provide as follows:
‘“Public records’ are records made, maintained or kept by any public or governmental body, board, bureau, commission or agency of the State or any political subdivision of the State, or organization, corporation or agency, supported in whole or in part by public funds, or expending public funds. ***
“12-2804. Except as otherwise specifically provided by laws now in effect, or laws hereafter specifically enacted to provide otherwise, all state, county, township, municipal and school district records which by law are required to be kept and maintained [our emphasis] shall be open to inspection and copying by any citizen of the State of Arkansas during the regular business hours of the custodian of the records.”
Webster’s New International Dictionary defines public record as “A record required by law to be made and kept; a record made by a public officer in the course of Iris legal duty to make it; a record filed in a public office and open to public inspection.”
This definition is the general definition of a public record, but, of course, statutory requirements are paramount. It is here contended that the statutory definition of public records makes the records sought subject to public inspection, but if the language of § 12-2803 at first blush lends itself to this construction, such an interpretation quickly vanishes upon reading § 12-2804. Of course, a statute must be read in its entirety to reach a proper interpretation.
In McCaa Chevrolet Company v. Bounds, Admr., 207 Ark. 1043, 183 S.W. 2d 932, we said:
“In ascertaining the intention of the legislature recourse may be had to the entire act under consideration. ‘The different parts of a statute reflect light upon each other . . . Hence, a statute should be construed in its entirety, and as a whole.’ 50 Am Jur. 350. ‘The intention of the lawmaker is to be deduced from a view of every material part of the statute’.” [Citing numerous cases].
It is at once apparent from even a cursory reading of § 12-2804 that the records which the General Assembly had in mind are those mentioned in the italicized phrase “which by law are required to be kept and maintained.” The Freedom of Information Act does not itself provide that any particular records shall be kept; it only provides that records which are required by some statute (other than the Freedom of Information Act) to be made and kept, shall be open to public inspection. There is no semblance of ambiguity in this provision and whether the statute be construed narrowly or broadly, the italicized phrase can only mean one thing, viz., that the Freedom of Information Act, as far as inspection of records is concerned, applies only to those records which by statute are required to be kept and maintained. Appellant has cited no statute, nor do we know of any, that requires the University of Arkansas, or its Athletic Department, to keep and maintain a record of complimentary tickets given, either the number of same, or the names of the persons receiving them. It is true that such a record is kept and appellants argue that the act permits public inspection of any record which is maintained or kept by any public or governmental body, board, bureau, commission or agency of the State. In other words, it is contended that any time such a State agency keeps a record, though not required by law, it immediately becomes subject to the provisions of the Freedom of Information Act. It is apparent, from what has been said, that we do not agree with this position. Of course, the athletic accounts, including the number of complimentary tickets given, and the lists of names, are available to the auditors, both for an interior audit by the University, and for the State Legislative Audit Division, but this does not mean that the lists are a public record, and the fact that an agency may have confidential records is recognized by statute. Ark. Stat. Ann. § 13-1505 (Repl. 1968) sub-section (D) provides in part:
“The Legislative Auditor shall have access at all times to all of the books, accounts, reports, confidential or otherwise [our emphasis], vouchers, or other records of information in any state office, department, board, bureau, or institution of this state. Nothing in this section shall be so construed as authorizing or permitting the publication of information now or hereafter prohibited by law.”
According to the testimony, the lists of numbers of complimentary tickets, and the lists of names, are compiled primarily because of the contracts that the University has with other institutions covering the games played in Arkansas during a particular season. It appears that, according to most of the exhibits offered, the total gate, after deductions of expenses (including officials’ fees, travel expenses, and complimentary tickets), was split between Arkansas and the Southwest Conference team being played. As an example, Mr. George Cole of the Athletic Department at the University, testified:
“When we sign a contract with Texas University or TCU they state in the contract that they’re playing Arkansas; that they would want, I’ll use an arbi trary figure, they would [want] five hundred dollars worth of complimentary tickets. Then, when they make their report they deduct that. Now then, we deduct five hundred dollars worth from our complimentary tickets and if we give more than that we have to pay Texas half of the price of that ticket for any over five hundred dollars. That’s in the contract.”
Fred S. Vorsanger, Vice-President for Business Affairs and Secretary to the Board of Trustees, testified that the lists were made to be used, if requested, as a part of the settlement with the opposing team; that the other school would be primarily interested in numbers (of complimentary tickets) but that the names of the recipients of the tickets were kept in case that school wanted to confirm the numbers.
As previously stated, appellants have obtained all information sought except the names of the ticket holders. For instance, an exhibit was offered showing the disposition of football tickets for games played in Arkansas during the Fall of 1970, reflecting as follows:
SOLD TO: PER CENT “ DISPOSITION OF TICKETS TOTAL OF TOTAL
78.26% Public 237,313
1.94 General Admission (High 5,896
School, Miscellaneous)
Faculty and Staff 8,829 C5 c4
Students 31,154 o
Complimentary 8,146 <£> c4
Opponents 11,971 go
100% TOTAL TICKETS SOLD AND COMPLIMENTARY TICKETS 303,309
COMPLIMENTARY TICKETS BY GROUP:
“A” Men 487 6.39%
Board of Trustees 448 5.40
Faculty and Staff 1,898 23.20
Legislators 1,892 23.21
Miscellaneous 337 4.10
Newspaper JO bo o o o oo
Radio Stations bo o o r^ . — i
State Officials > oo o cq oo cq
Team O oo o cq oo oo
8,146 100% TOTAL COMPLIMENTARY TICKETS BY GROUP
$1,347,461.71” RECEIPTS
For the reasons herein stated, and without discussing further defenses advanced by appellees, we hold that appellants are not entitled, under the statute (Freedom of Information Act), to the information sought.
As to the second point for reversal, we find no merit. Appellants sought to have Subpoenas Duces Tecurn served on Cole and Vorsanger requiring them to appear with all rules and regulations pertaining “to the physical and financial accounting for football tickets” for the years heretofore mentioned. It is difficult to determine from the record just what action was taken by the trial court. An order had been signed directing the mentioned individuals to bring such records, but appellants say that the court sustained objection to the subpoenas being issued, and refused to order appellees to produce the rules and regulations described in the subpoenas. At any rate, discussion of this point would be academic since the testimony reflects that there are no such written rules and regulations.
Affirmed.
George Rose Smith, J., not participating.
“Trial court should be affirmed on its dismissal of appellants’ petition.
A. Jurisdiction is lacking because this is a suit against the state prohibited by Article 5, Section 20, Arkansas Constitution.
B. Discretionary authority regarding these lists is constitutionally protected by Amendment 33, Arkansas Constitution.
C. In the alternative, the Freedom of Information statute is inapplicable to the lists in issue.
D. Plaintiffs made no showing of necessary interest to compel production of the lists.
E. An action in nature of mandamus cannot be used to enforce alleged rights which are non-existent under Act 93 of 1967.
F. Scope of judicial review of administrative action is limited.
G. Appellants failed to sustain the burden of proof.”
Perhaps, in view of the holding herein, it might be well to state that this category, “State Officials”, does not include Supreme Court Justices, who are not recipients of complimentary tickets.
The record reflects that the court stated:
"I very reluctantly signed those two orders. I left or let my reluctance be known to counsel for petitioner. I had no earthly idea what he wanted insofar as rules and regulations. If you have a little booklet that you call rules and regulations, bring it. I am going to deny your request at this time. They can produce it, that is, your witnesses. You can develop the facts in your inquiry; don’t go into it right now.” | [
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George Rose Smith, Justice.
These seven appeals have been consolidated here. The controlling question is whether a plaintiff, by taking a voluntary nonsuit with respect to two counts in his complaint, can thereby convert an adverse partial summary judgment with respect to a third count into an appealable order.
Six landowners filed three suits against Franz Foods, alleging that Franz had, by discharging prohibited wastes into the sewer system of the city of Green Forest, polluted a stream running through the plaintiffs’ property. The trial court sustained demurrers to the complaints, but on appeal we held that the complaints, by charging Franz with breaches of a contract with the city, stated a cause of action. Ratzlaff v. Franz Foods of Arkansas, 250 Ark. 1003, 468 S.W. 2d 239 (1971).
After that decision four more suits were filed. Eventually all seven complaints alleged not only the ground for recovery which we had sustained but also a second ground, that Franz had wrongfully discharged wastes directly into the stream, and a third ground, that Franz’s discharge of certain wastes into the municipal sewer system violated a city ordinance. On Franz’s motion the trial court entered partial summary judgments striking the third count of the complaints. The plaintiffs at once took voluntary nonsuits with respect to the two counts which the trial court had found to be valid and appealed from the partial summary judgments.
We sustain Franz’s motion to dismiss the appeals for want of a final appealable order, which the statute re quires. Ark. Stat. Ann. § 27-2101 (Supp. 1971). In interpreting the statute we have steadfastly refused to allow piecemeal appeals. See our most recent case on the point, Independent Ins. Consultants v. First State Bank of Springdale, 253 Ark. 779, 489 S.W. 2d 757 (1973). Here the appellants seek to circumvent the policy of the statute by holding two counts of their complaints in abeyance while they seek our opinion upon the validity of a third count. If that procedure is permissible, litigants may appeal from various interlocutory orders by taking a nonsuit with respect to the rest of the case.
We are not persuaded by the appellants’ argument that the situation is essentially the same as it would have been if they had first asserted only one cause of action and then, after a successful appeal from an adverse summary judgment, had added the other two causes of action by amendment after the case had been remanded to the trial court. The controlling distinction is that in the case at bar we know that a piecemeal appeal is presented and that we would violate the policy of the statute by entertaining it. In the suggested alternative situation no violation of the statute would exist or be discernible upon the appeal.
The case at bar falls squarely within the spirit of a statement that was first made in Woodruff v. State, 7 Ark. 333 (1846), and was later commented upon in Yell v. Outlaw, 14 Ark. 621 (1854): “It is not in the power of a party to single out a single issue, even by the most solemn contract of record, and submit it to the consideration of the supreme court, so as to elicit the opinion of the supreme court upon the law or the fact of that particular issue. Such a judgment would not be final, as not embracing all the issues in the case, and consequently it could not become the subject of an appeal or writ of error. The real object of the parties was to take the opinion of the supreme court upon the questions of law arising upon the demurrer to the second plea, but in order to receive the benefit of that decision it became absolutely necessary that the circuit court should pass upon all the issues joined.”
Appeals dismissed. | [
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Frank Holt, Justice.
Appellant was convicted of first degree murder by a jury and sentenced to life imprisonment in the Arkansas Department of Correction. Appellant’s only contention for reversal is that the trial court erred in not granting a requested mistrial after the appellant, on cross-examination, was asked:
Q. A. J., are you guilty of shooting a man in Pine Bluff on December the 22nd, 1970?
A. Was I guilty?
Q. Did you shoot him?
A. Yes, sir, I shot him.
On re-direct appellant stated the shooting was in self-defense which resulted in no prosecution.
Appellant’s counsel forcefully presents the argument that the word “guilty” implies an accusation of a crimi nal wrongdoing or of having committed a crime. Even so, we cannot agree with appellant that the question was not proper. We have long approved the format of this question, on cross-examination, when asked in good faith, as being permissible to test the credibility of a witness, the state being bound by the answer. Polk v. State, 252 Ark. 320, 478 S.W. 2d 738 (1972), Harrington v. State, 251 Ark. 587, 473 S.W. 2d 911 (1972), Black v. State, 250 Ark. 604, 466 S.W. 2d 463 (1971), Hughes & Bridges v. State, 249 Ark. 805, 461 S.W. 2d 940 (1971), and McAlister v. State, 99 Ark. 604, 139 S.W. 684 (1911). In Polli, the defendant was asked if he was guilty of robbing a filling station; in Harrington, if he was guilty of interstate transportation of stolen property; in Black, if he was guilty of raping a woman at a certain time and place; in Hughes & Bridges, “Did you take some money off Bobby Horne;” and in McAlister, if the witness had “assassinated” another person. In each of these cases we held it was proper cross-examination of the witness.
We think the question was particularly appropriate, in the case at bar, inasmuch as the state adduced evidence that the victim, lying unarmed on the floor, was shot five times by the appellant. The appellant insisted that he shot in defense of his brother and that the deceased was armed. Certainly the credibility of the appellant was a crucial issue.
Affirmed.
Harris, C.J., not participating. | [
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J. Fred Jones, Justice.
This is an appeal by First Federal Savings and Loan Association of Pine Bluff from a trial court order overruling its motion to set aside a judgment rendered against it under a mandate from this court pursuant to an opinion we delivered on February 12, 1973, wherein Pine Bluff National Bank was the appellant, Billy E. Parker was the appellee, and First Federal Savings and Loan Association of Pine Bluff was a garnishee. See Pine Bluff Nat'l Bank v. Parker, 253 Ark. 966, 490 S.W. 2d 457. The single point relied on by First Federal on this appeal is stated as follows:
“The trial court erred in failing to reverse its prior judgment in favor of frank Parker as directed by the opinion and mandate of this court.”
According to the record in Pine Bluff Nat'l Bank v. Parker, supra, Pine Bluff National sued Billy Parker for a debt past due and sued out a writ of garnishment against First Federal. First Federal-, as garnishee, answered on April 4, 1969, that it held funds deposited to the account of Billy Parker in the amount of $13,231. Pine Bluff National and Billy Parker then worked out a compromise agreement whereby Parker paid a lump sum on the debt to Pine Bluff National and a consent judgment was entered for the balance of the debt in the amount of $24,600. Under the agreement, recited in the consent judgment, Billy Parker executed three installment notes for the $24,600 balance, and Pine Bluff National released approximately $20,000 worth of its security interest in certain automobiles which Billy Parker had pledged as security for the original debt. The consent judgment recited that First Federal, the garnishee, would hold the savings account above referred to for a period of 61 days and if by that time Billy Parker was in default on his installment notes, the court would enter an order directing First Federal to pay over the $11,231 to Pine Bluff National. Such default occurred, and on April 17, 1970, judgment was entered by the trial court finding Billy Parker in default, and ordering First Federal to pay the $11,231 to Pine Bluff National.
On July 2, 1970, First Federal filed a motion to set aside the judgment against it as garnishee. It alleged that it had erred in answering that Billy Parker had $11,-231 on deposit with it, and alleged that the mistake had not been discovered until the entry of the judgment against it for the $11,231. It alleged that the savings account was actually a joint account in the names of Frank Parker or Billy Parker and it prayed permission to file an amended answer to the original interrogatories. The trial court granted First Federal’s motion and entered an order setting aside the judgment against the garnishee and permitting it to file an amended answer. Pine Bluff National appealed to this court from that order and we held that the trial court had a right to set aside its orders in term time and refused to pass upon Pine Bluff National’s claim to the funds because that issue had not been resolved by the trial court and we dismissed the appeal. Pine Bluff Nat’l Bank v. First Fed. S & L, 250 Ark. 600, 466 S.W. 2d 249. First Federal did amend its answer setting out the joint account, and Frank Parker filed an intervention claiming to be the sole owner of the funds in the joint account. The trial of the case then continued before the court, sitting as a jury, and the trial court rendered judgment with findings and conclusion as follows:
“1. That the Court had authority to set aside the Judgment entered on April 17, 1970 and permit the Garnishee to Amend its Answer, thus placing all parties in the same position with regard to their legal rights that they had prior to the filing of the Answer by Garnishee.
2. That a joint account is garnishable only to the extent of ownership of the debtor.
3. The savings account in question is solely owned by Frank Parker and that First Federal Savings & Loan Association of Pine Bluff should be directed to release the savings account to Frank Parker individually. In the event a Supersedeas bond in the sum of $11,231.00 is filed by the plaintiff within thirty (30) days, then said amount is to be held by the garnishee.
IT IS, THEREFORE, by the Court, considered, ordered, adjudged and decreed that the savings account in question be and is hereby found to be owned by Frank Parker and that First Federal Savings & Loan Association of Pine Bluff be and it is hereby ordered and directed to release the savings account to Frank Parker, individually. In the event a Supersedeas bond in the amount of $11,231.00 is filed by the plaintiff within thirty (30) days then said amount is to be held by the garnishee.”
Only Pine Bluff National appealed from that judgment and we said:
“The bank does not appeal from the court’s findings as to the respective rights between Frank Parker and First Federal Savings. The court committed no error in permitting Frank Parker to intervene because the court had that right by virtue of our holding in the first appeal. Furthermore, Frank Parker had a right to establish his actual ownership of the account because that was a garnishment proceeding. Hayden v. Gardner, 238 Ark. 351, 381 S.W. 2d 752 (1964). Pine Bluff National contends that the court erred in refusing to grant it a judgment against First Federal because, acting in reliance on the first judgment, the bank released certain automobiles which Billy Parker had pledged as security for the original de:bt. That contention is meritorious.”
We conclude it would be a waste of judicial effort to quote further from our opinion of February 12, because we consider the language clear and the conclusion we reached supported by the case law cited. The first sentence in the above quote from our opinion disposed of the issue on appeal pertaining to the savings account as such. We found merit in Pine Bluff National’s contention as above set out and we reversed and remanded with the following directions:
“The trial court is directed to enter judgment in favor of Pine Bluff National and against First Federal in the amount of the garnishment together with interest.”
As pointed out in our original opinion, no appeal was perfected from the trial court’s finding that the funds in the hands of First Federal belong to Frank Parker, and the correctness of that holding has never been before us.
First Federal argues on this appeal that the trial court erred in complying with the mandate of this court, in that it only entered judgment against First Federal in favor of Pine Bluff National as specifically directed by this court, but failed to set aside its prior judgment in favor of Frank Parker as was also intended and directed by tbis court when we employed the word “reversed.” First Federal argues that had we intended the judgment in favor of Frank Parker to remain unaffected, we would have so indicated by employing the usual phrase — “affirmed in part and reversed in part.” The answer to this argument is that if the trial court’s findings that the funds in the hands of the garnishee actually belong to Frank Parker and its order to pay same over to Frank Parker amounted to a judgment in favor of Frank Parker against First Federal, there was no appeal by First Federal from such judgment. Certainly Pine Bluff National had no interest in Frank Parker’s account with First Federal. It simply relied, to its detriment, on the verified answers to interrogatories propounded by it to First Federal ás garnishee in a suit it filed against Billy Parker. The trial court correctly complied with the mandate of this court and the judgment is affirmed.
Affirmed.
Harris, C.J., not participating. | [
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Hart, O'. J.,
(after stating the facts). Evidence was introduced by appellant tending to show that appellee was not totally disabled and also that his disability was not permanent; but, inasmuch as the verdict of the jury must be tested by the evidence in the light most favorable to appellee, we need not abstract the testimony for appellant. Under our settled rules of practice, if there is any evidence of a substantive character to support a verdict, it cannot be disturbed upon appeal.
Contracts of insurance should receive a reasonable construction so as to effectuate the purposes for which they are made. In oases where the language used is ambiguous, it should be construed in favor of the insured because the policy is written' on forms prepared by the insurer. Of course, legal effect should be given to all the language used, and the object to be accomplished by the contract should be considered in interpreting it.
The disability clause has been copied in our statement of facts and need not be repeated here. Total disability is generally regarded as a relative matter which depends largely upon the occupation and employment in which the party insured is engaged. This court has held that provisions in insurance policies for indemnity in case the insured is totally disabled from prosecuting his business do not require that he shall be absolutely helpless, but such a disability is meant which renders him unable to perform all the substantial and material acts of his business or the execution of them in the usual and customary way. Industrial Mutual Indemnity Co. v. Hawkins, 94 Ark. 417, 127 S. W. 457, 29 L. R. A. (N. S.) 635, 21 Ann. Cas. 1029 ; Brotherhood of Locomotive Firemen & Enginemen v. Aday, 97 Ark. 425, 134 S. W. 928 ; and Ætna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S. W. 335.
Thus it will be seen that our court makes no distinction between accident policies and life insurance policies containing total disability clauses. The construction placed upon policies of this sort follows the general trend of authority in the United States. Case Notes to 41 A. L. R. at 1376 ; 37 A. L. R. at 151 ; 24 A. L. R. at 203 ; and 7 Ann. Cas., page 815.
It only remains to apply the principles to the facts . of the present case. "While, as above stated, the evidence was conflicting, still the evidence introduced on the part of the appellee warranted the jury in finding that he was totally and permanently disabled within the meaning of the terms of the policy under consideration. The object to be accomplished was to indemnify the insured for loss of time for being wholly disabled from prosecuting his business. It has been well said that, if the language used was to be construed literally, the insurer would be liable in no case unless the insured should lose his life or his mind. Of course, as long as he is in possession of his mental faculties, he is capable of transacting some part of his business; but, as we have already seen, he was not able to prosecute his business within the meaning of the policy unless he was able to do all the substantial acts necessary to be done in its prosecution. The very purpose of obtaining the policy was to indemnify him in case he should become disabled, so that he could not carry on his business. In the present case, the premiums were paid and the policy kept up by the insured according to its terms until his disability occurred.
It is fairly inferable from the evidence introduced in favor of appellee that he was no longer able to carry on his business after about the first of August, 1928. His condition at that time became so that he could not attend to any of the duties of his business except to advise about the sales and purchases of produce. Before that time he was able to go about the streets and purchase produce from the various wagons where he anight find them. After his disability he could only purchase-produce from wagons which came to his place of (business. Even then he could not handle the produce and examine it with his hands. He could only walk with great difficulty and suffered constant pain. His right hand was numb, and he could no longer assist in keeping’ his books or in helping to sort cut vegetables or in loading and unloading produce. In crder to conduct his business successfully, it was necessary that he should do all these things. His business was such that he could not profitably conduct it by merely supervising it and hiring others to perform the work. His disability necessitated him to take his two sons in partnership with him in order to successfully carry on the business. His loss in this respect was the very object of taking out the insurance. Hence, when the character of the business, together with the attendant circumstances, is considered, we are of the opinion that reasonable minds might reach the conclusion that the insured was totally and permanently disabled within the meaning of the policy as above defined, and that the jury was warranted in finding a verdict in his favor.
- After the judgment was rendered, a motion was filed on behalf of appellee for the allowance of attorney’s fees against appellant to be included as part of the costs. ■ Under our statute, a reasonable attorney’s fee for the prosecution of the case may be allowed; and, inasmuch as this pertains to the remedy, it is taxed as part of the costs. Vaughan v. Humphreys, 153 Ark. 140, 239 S. W. 730, 22 A. L. R. 1201.
The amount of the judgment rendered in this case was $2,550, and the court allowed the sum of $500 as attorney’s fee. The record of the case is before us; and, without in any manner disparaging the ability and services of the attorneys for appellee, it seems to us that' the fee allowed is somewhat excessive and should be reduced to $400. Merchants’ Fire Ins. Co. v. McAdams, 88 Ark. 550, 115 S. W. 175 ; Mutual Life Ins. Co. v. Owen, 111 Ark. 554, 164 S. W. 720 ; Maryland Casualty Co. v. Maloney, 119 Ark. 343, 178 S. W. 387, L. R. A. 1916A, 519 ; Ætna Life Ins. Co. v. Taylor, 128 Ark. 155, 193 S. W. 540, Ann. Cas. 1918B, 1122 ; Metropolitan Ins. Co. v. Chambers, 136 Ark. 84, 206 S. W. 64 ; Indiana Lumberman’s Mutual Life Ins. Co. v. Meyers Stave & Mfg. Co., 158 Ark. 199, 250 S. W. 18 ; Camden Fire Assn. v. Meloy, 174 Ark. 84, 294 S. W. 378 ; and St. Paul Fire & Marine Ins. Co. v. Green, 181 Ark. 1096, 29 S. W. (2d) 304.
Therefore the judgment recovered by appellee for the amount of the policy sued on will be affirmed, and the attorney’s fee will be reduced to $400. | [
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George Rose Smith, J.
This proceeding for unemployment benefits was brought by the twelve appellants, former employees of the appellee L. W. Scott, who does business as Scott Paper Box Company. Under the Ar kansas Employment Security Act (Ark. Stats. 1947, Title 81, Cli. 11) tire case was heard by the Appeals Tribunal and reveiwed by the Board of Review. These tribunals awarded benefits to the appellants for a period prior to September 3, 1947, but denied any further benefits for the reason that thereafter the appellants’ unemployment was due to their being on strike against the appel-lee. The circuit court affirmed this decision.
For the most part the facts are not in dispute. In August of 1947 a number of the appellee’s employees began negotiating witli'a labor union representative with a view to joining the union. On August 14 this representative wrote to the appellee, requesting a conference for the purpose of discussing a contract between the union and the employer. On the following morning the appellee caused this letter to be posted by the time clock and in substance informed his employees that if they wanted to organize a labor union they would have to seek employment elsewhere. The Appeals Tribunal, finding that this conduct amounted to a lockout, allowed unemployment benefits for the period immediately following. Ark. Stats., § 81-1106 (d). That ruling is not questioned upon this appeal.
On August 20 the appellee sent a letter to each of the employees who were then away from their jobs. In this letter the employer assured his workmen that their connection with the Box Company had not been terminated by any act of the Company and that they were welcome to return to work. On August 21 the. employees replied by letter, requesting assurance that if they returned to work there would be no discrimination on the basis of union activity. The appellee answered by mail the next day, stating that there would be no. such discrimination. The employees then returned to their jobs. As we have indicated, unemployment benefits were allowed for this period of idleness.
About a week later, on Saturday, August 30, the employer requested six or seven of the men to work that Saturday afternoon. It is not clear from the record whether these men agreed to work that afternoon or assigned various personal reasons for not being’ able to work. At any rate, they did not come back to work after tbe noon hour. At tbe beginning of tbe next work day five of these men were informed that they were no longer employed by the Company. A majority of the other employees then called a strike and established a picket line. The five who had been discharged joined in the strike, all the striking employees taking the position that they would not return to work unless the five were reinstated or unless the appellee also discharged any others who failed to work on Saturday afternoon. In this proceeding the appellants seek unemployment benefits for the period beginning with the date of the strike.
The Appeals Tribunal denied benefits upon the sole ground that the appellants’ unemployment was due to a labor dispute. In so holding, the'Appeals Tribunal overlooked the fact that the Act does not deny benefits in every case of unemployment that results from a labor dispute. On the contrary, the Act authorizes the payment of benefits if the Commissioner finds that the labor dispute was caused “by the failure or refusal of any employer to conform to the provisions of any agreement or contract between the employer and employee or of any law of the State of Arkansas or of the United States pertaining to collective bargaining, hours, wages,” etc. § 81-1106 (d).
On appeal the Board of Review considered to some extent the language just quoted but rested its affirmance on the. ground that there was no agreement between the employer and the employees in this case. This conclusion was erroneous as a matter of law. It is undisputed that the letters of August 20-22 were exchanged, and the administrative tribunals so found. These letters unquestionably constituted an agreement that there would be no discrimination on account of union activity.
Thus the Appeals Tribunal was in error in concluding that the mere existence of a labor dispute precludes the allowance of benefits, and the Board of Review was in error in holding that there was no agreement that could have been violated by the employer. The appellee insists that the judgment should nevertheless be affirmed, for the reason that the discharge of the five employees was not in violation of the agreement or of State or Federal law. With respect to the Federal law the National Labor Relations .Board has held, in a decision rendered after that of the Board of Review, that the five men were not discriminated against on the basis of their union activity. L. W. Scott, d.b.a. Scott Paper Box Co., 81 NLRB No. 98, Case No. 15-MC-28, Feb. 10, 1949. The Appeals Tribunal and the Board of Review may or may not agree with that decision.
The issues now remaining hinge upon questions of fact as yet undecided. Under the statute the findings of fact made by the Appeals Tribunal and the Board of Review are conclusive upon judicial review if supported by evidence. § 81-1107 (d) (7). Where an administrative body is empowered to make findings of fact it is not the province of the courts to discharge that function merely because the administrative agency has not acted. For instance, it has been our consistent practice under the Workmen’s Compensation Act to remand the cause to the Commission if that body fails to make a finding upon a pertinent issue of fact. Long-Bell Lbr. Co. v. Mitchell, 206 Ark. 854, 177 S. W. 2d 920; Paragould Laundry & Dry Cl. Co. v. Rogers, 210 Ark. 764, 197 S. W. 2d 567. Here the administrative tribunals have not yet determined whether the labor dispute was caused by the appellee’s failure to conform to his agreement of to law. Similarly, it is argued that the five discharged employees did not owe their original idleness to a labor dispute, but that also is a question of fact. Their right to benefits may depend at least in part upon whether they were available for work, as the Act contemplates. § 81-1105 (b) and (c). It is not the function of this court to, decide such fact questions in the first instance.
Reversed, with instructions to remand the cause to the Board of Review for findings of fact upon the issues that are still undecided and for further proceedings consistent with this opinion.
Grifein Smith, C. J., concurs. DijNaway, J., not participating. | [
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John A. Fogleman, Justice.
Appellant Perry, charged with the first degree murder of Pat Brumett, was found guilty of voluntary manslaughter by a jury which fixed his punishment at six years’ imprisonment. He alleges that the trial court erred in admitting two photographs of the body of Brumett into evidence and in allowing the prosecuting attorney to exceed the bounds of propriety in closing argument. We find no reversible error.
Appellant asserted that the killing was done in self-defense. Brumett died from wounds inflicted on him by Perry with a knife. A physician, acting as State Medical Examiner, testified that in his opinion death resulted from a knife wound on the neck, but that one under the arm might have been the cause. There had been previous difficulties between the two and some argument between them on June 18, 1972, the day of the fatal encounter. The killing took place in a small cabin consisting of one room, a kitchen area and a bathroom. It occurred after a dice game there in which Lewis Sutton, Neal Jester, Brumett and Perry had all participated at one time or another during a period of three hours or more. All par ticipants had been drinking beer or whiskey. The argument between Perry and Brumett took place while this game was in progress.
Just prior to the encounter, Brumett had been sitting at the end of a bed near the door to the cabin. None of the others present saw what took place between Perry and Brumett as Perry started to leave, or heard any statements made by either to the other. Each professed to have had his attention attracted by a commotion, as if persons were scuffling near the door, and to have then seen Brumett bleeding badly and Perry and Brumett standing and facing one another. Immediately after the witnesses saw this, Perry bolted out the door. None of the witnesses saw any weapon in the possession of either Perry or Brumett or heard any threat made by Brumett to Perry.
Perry first contends that the photographs were introduced without a proper foundation having been laid, i.e., that it was not shown that the pictures were accurately taken or that they were correct- representations of the subject matter. They were identified by C. B. Crownover, a deputy sheriff who investigated the incident. Crownover went to the hospital and observed Brumett’s body after he had made an inspection,in and about the cabin and obtained such information as he could. He testified that the two photographs admitted, along with others excluded, were made in his presence by the physician who acted as medical examiner, after Brumett’s clothing had been removed. Crownover said that the pictures showed Brumett’s appearance after the clothing had been removed. We cannot say the foundation thus laid for the introduction of these pictures was inadequate. We note the physician later testified that he made the photographs and that the two, one a front view and the other a rear view of Brumett’s body, portrayed all the “cuts” on it. He. referred to these photographs in explaining his examination and findings.
Appellant also contends the photographs should have been excluded because of their tendency to inflame the minds of the jury, and that they were introduced solély for that purpose.
Brumett was described as a man over six feet tall, weighing over 200 pounds. Perry was said to have weighed 140 to 150 pounds. Perry testified that as he started to leave, Brumett jumped up from the bed and started striking and choking him, and that he ran his hand in his pocket, withdrew a knife and cut Brumett with it until Brumett slackened his hold enough that he (Perry) could get loose and fall out the door. Perry stated that he did not know how many times he struck Brumett with the knife, but that he thought each time that Brumett would feel a “sting” and release him. Perry denied having his hand or arm around Brumett’s neck while cutting him with the knife.
An in camera hearing was held before the circuit judge admitted the photographs into evidence. It is significant to us that he rejected five others. We agree with appellant that these admitted should have been rejected if their sole effect was to inflame the passions of the jurors against him. See Garrett v. State, 171 Ark. 297, 284 S.W. 734. Otherwise, the admission and relevancy of photographs are matters resting largely in the discretion of the trial judge. Lee v. State, 229 Ark. 354, 315 S.W. 2d 916. An objection that photographs tend to inflame or prejudice the jury is not valid, if they are otherwise properly admissible. Milam v. State, 253 Ark. 651, 488 S.W. 2d 16; Williams v. State, 239 Ark. 1109, 396 S.W. 2d 834; Oliver v. State, 225 Ark. 809, 286 S.W. 2d 17. However inflammatory they may be, they are admissible in the discretion of the trial judge, if they tend to shed light on any issue or are useful to enable a witness to better describe the objects portrayed or the jury to better understand the testimony, or to corroborate testimony. Davis v. State, 246 Ark. 838, 440 S.W. 2d 244; Stewart v. State, 233 Ark. 458, 345 S.W. 2d 427; Oliver v. State, supra. Photographs are also admissible as primary evidence upon the same grounds and for the same purposes as diagrams, maps and plats. Sellers v. State, 91 Ark. 175, 120 S.W. 840. These principles have been applied in sustaining the admission of photographs depicting conditions resulting from bodily injuries. Reed v. McGibboney, 243 Ark. 789, 422 S.W. 2d 115. We there pointed out that an oral description of such conditions by a witness who was unusually eloquent might be as inflammatory as a photograph showing the same conditions.
The photographs admitted showed a front and a rear view of Brumett’s body. The one taken from the rear showed two long gaping wounds on Brumett’s back, both on the left side — one just below the shoulder blade, and one near the bottom of the rib cage — and another across the back of his neck. The one taken from the front showed one severe wound on the throat and another below the armpit, both on Brumett’s left side.
We have in many cases upheld the admission of photographs of the body of the victim in a homicide case when they showed the nature and location of wounds, even though the photographs were gruesome. See, .e.g., Lillard v. State, 236 Ark. 74, 365 S.W. 2d 144; Oliver v. State, supra; Perkins v. State, 217 Ark. 252, 230 S.W. 2d 1; Lee v. State, 229 Ark. 354, 315 S.W. 2d 916; Smith v. State, 216 Ark. 1, 223 S.W. 2d 1011, cert. denied, 339 U.S. 916, 70 S. Ct. 562, 94 L. Ed. 1341; Black v. State, 215 Ark. 618, 222 S.W. 2d 816, cert. denied, 338 U.S. 956, 70 S. Ct. 490, 94 L. Ed. 590; Higdon v. State, 213 Ark. 881, 213 S.W. 2d 621; Nicholas v. State, 182 Ark. 309, 31 S.W. 2d 527; Sellers v. State, supra.
Perry’s defense raised questions, among others, as to which of the two was the aggressor, whether Perry in good faith endeavored to avoid the danger which appeared to him and to avert the necessity of killing Brumett and to decline further contest before the mortal wound was inflicted, whether Perry honestly believed he was in danger of losing his own life or suffering great bodily injury, whether the circumstances were sufficient to excite the fears of a reasonable person, whether Perry acted hastily or in a spirit of revenge and whether he acted with due caution and circumspection. Ark. Stat. Ann. §§ 41-2209, 41-2235, 41-2236 (Repl. 1964). Bruder v. State, 110 Ark. 402, 161 S.W. 1067; Deatherage v. State, 194 Ark. 513, 108 S.W. 2d 904; Peters v. State, 245 Ark. 9, 430 S.W. 2d 856; Duncan v. State, 49 Ark. 543, 6 S.W. 164.
The nature and location of the wounds were material in this case to several of the issues. In considering these issues, the jury was at liberty to consider the nature, and location of the wounds, the probable manner of their infliction and the extent to which they were contradictory to appellant’s contentions. See Bartley v. State, 210 Ark. 1061, 199 S.W. 2d 965; Black v. State, supra. The number and severity of the wounds were relevant to the questions whether Perry acted in a spirit of revenge, and whether he acted with due caution and circumspection. In addition, these facts had some probative force tending to show malice. Davis v. State, 246 Ark. 838, 440 S.W. 2d 244; Government of Virgin Islands v. Lake, 362 F. 2d 770 (3rd Cir. 1966); Carson v. State, 217 Ark. 658, 232 S.W. 2d 835; Tatum v. State, 172 Ark. 244, 288 S.W. 904. See also, Stanley v. State, 248 Ark. 787, 454 S.W. 2d 72; Stockton v. State, 239 Ark. 228, 388 S.W. 2d 382; Bly v. State, 213 Ark. 859, 214 S.W. 2d 77; Wooten v. State, 220 Ark. 750, 249 S.W. 2d 964. They were also to be considered in determining whether the intent to kill should be inferred. Craig v. State, 205 Ark. 1100, 172 S.W. 2d 256. From an examination of these wounds, it appears that it was possible for all or some of them to have been inflicted by one who was behind Brumett. If so, that fact was quite material to the question of whether deceased or appellant was the aggressor. See Bartley v. State, 210 Ark. 1061, 199 S.W. 2d 965.
In Nicholas v. State, 182 Ark. 309, 31 S.W. 2d 527, where a picture was nothing more than a description of fatal wounds of the deceased at the hands of the accused, it was argued that, because of the gruesomeness of the wound shown, the picture prevented a fair and impartial trial because it tended to arouse the passions of the jury. Our language there is pertinent here. We said:
The character of the wound inflicted upon deceased by one charged with his murder is always admissible in evidence, and we know of no rule limiting the description thereof to word of mouth. # * .* We do not think the most accurate method of reflecting a truth should be eliminated, but, just to the contrary, such a method should be approved and accepted.
We can say with assurance that there was no abuse of the circuit judge’s discretion in admitting these photo graphs, and his rejection of five others tends to indicate that his discretion was soundly exercised. Since appellant was charged with first degree murder and convicted of only voluntary manslaughter, we have considerable doubt that the admission of the photographs could have inflamed the passions of the jury. See Perkins v. State, 217 Ark. 252, 230 S.W. 2d 1; Garrett v. State, 171 Ark. 297, 284 S.W. 734.
Appellant complains that the prosecuting attorney failed to produce a forensic pathologist to testify about the direction from which the cuts were inflicted or the position of the person who inflicted them, as he stated that he would at the hearing in camera. In view of what we have said, this failure is immaterial. He also complains of the statement by the circuit judge at that hearing that the photographs admitted would have “some weight to the jury for them to know there was a hog skinning out there.” If that statement had been made in the presence of the jury, we would have cause for concern. Since it was made out of the hearing of the jury, appellant could not have been prejudiced by the folksy language used by the judge in stating the reasons for his ruling.
Appellant also complains that the circuit judge gave the jury no instruction stating the purpose for which the photographs might be considered and admonishing the jurors against permitting these pictures to inflame their minds, as was done in Lee v. State, 229 Ark. 354, 315 S.W. 2d 916. There was no request by appellant for such an admonition. The failure to give an admonitory or cautionary instruction, or one limiting the effect of testimony or the purpose for which it may be considered, is not prejudicial error, in the absence of a request therefor. Petron v. State, 252 Ark. 945, 481 S.W. 2d 722; Steel v. State, 246 Ark. 75, 436 S.W. 2d 800; Clark v. State, 246 Ark. 1151, 442 S.W. 2d 225. Fielder v. State, 206 Ark. 511, 176 S.W. 2d 233; Kyles v. State, 143 Ark. 419, 220 S.W. 458.
The fact that appellant’s counsel admitted that the victim was cut numerous times did not render these photographs inadmissible. In the first place, the location and severity of the cuts were not admitted and admission could hardly have portrayed the actual nature of the wounds or given any indication as to the direction from which they may have been inflicted. Furthermore, the fact that the evidence is cumulative or unnecessary because of an admission by defendant of facts disclosed by photographs does not, in and of itself, render them inadmissible. Smith v. State, 216 Ark. 1, 223 S.W. 2d 1011, cert. denied, 339 U.S. 916, 70 S. Ct. 562, 94 L. Ed. 1431; Rivers v. United States, 270 F. 2d 435 (9th Cir. 1959); State v. Upton, 60 N.M. 205, 290 P. 2d 440 (1955). See also, Stanley v. State, 248 Ark. 787, 454 S.W. 2d 72; State v. Greene, 74 R.I. 437, 60 A. 2d 711 (1948); State v. Lantzer, 55 Wyo. 230, 99 P. 2d 73 (1940).
Appellant’s contentions about the prosecuting attorney’s arguments to the jury are threefold. The arguments were not reported verbatim, but the record purports to state the gist of the statements to which appellant objected and of his objections thereto. We do not consider the statement in appellant’s brief that the prosecuting attorney was waving a knife in front of the jury, because the record does not disclose that this was done, or, if it was, that any objection was made.
The first objection was made to a statement by the prosecuting attorney that he had wanted Perry to open a pocket knife in court, but that appellant’s attorney would-n’t let him because he (the attorney) didn’t think he could open it with one hand. After a general objection was made, the court admonished the jury to consider remarks of counsel as statements of their opinions and to base its verdict on the evidence and the law given by the court. Thereafter, appellant’s attorney only requested that the judge ask the prosecuting attorney to stay in the record. We do not consider there was any reversible error here. Perry had testified that while Brumett was striking and choking him, he got one hand into his right pocket, removed his pocket knife, stuck his finger in the “nail thing,” put it against his leg and opened it. The circuit judge had sustained appellant’s attorney’s objection to the prosecuting attorney’s request that Perry demonstrate how he opened the knife with a knife tendered by the prosecuting attorney. Perry later denied that the knife was open in his pocket before the encounter. Appellant did not request any further admonition, object to that given, or move for a mistrial. In view of the court’s admonition, we cannot say that there was any prejudicial error in this instance. See Camp v. State, 249 Ark. 1075, 467 S.W. 2d 707.
The second objection was made to the statement that Pat Brumett was a fellow that liked to shoot craps, drink and fight, and that the defendant must have liked to also. It is sufficient to say that there was no error because it was not unreasonable for one to draw from the evidence the inference that the prosecuting attorney stated. See Patrick v. State, 245 Ark. 923, 436 S.W. 2d 276; Gibson v. State, 252 Ark. 988, 482 S.W. 2d 98.
The third instance is reported thus:
MR. LOVELL: He jumped on the man’s back and cut him all to pieces.
MR. McCOY: I object. I want him to argue the evidence.
THE COURT: I have repeatedly told the jury where their verdict will be based on and the right of attorneys to express their opinions.
MR. McCOY: Would you insist he stay in the record.
THE COURT: He has a right to express his opinion, Mr. McCoy.
MR. McCOY: Save my exceptions.
Here again, appellant’s attorney did not move for a mistrial and made no request for any further admonition except that the prosecuting attorney be required to stay in the record. Appellant argues that there is no evidence that appellant jumped on Brumett’s back and that the only evidence on the subject was the testimony of two witnesses that the two were locked face to face. It is true that the witnesses said that the two were standing face to face when they looked toward appellant and the deceased. It is also true that they had both previously heard a commotion and when they saw Brumett and Perry, the wounds must have already been inflicted, because Brumett was bleeding badly at the time and neither professed to have seen any of the combat. As we have previously indicated, an inference that the wounds were inflicted by someone to Brumett’s rear would not be totally unfounded. Consequently, there does not appear to have been any impropriety in the argument, and the court’s admonition to the jury to the effect that statements of counsel were to be considered as opinions only would seem to be sufficient. See Ulmer v. State, 253 Ark. 106, 484 S.W. 2d 691; Gibson v. State, supra; Camp v. State, supra; Patrick v. State, supra.
The trial court has a wide latitude of disci in controlling, supervising and determining the prop of the arguments of counsel, and its exercise will not be reversed in the absence of manifest gross abuse. Stanley v. State, 248 Ark. 787, 454 S.W. 2d 72; McGill v. State, 253 Ark. 1045, 490 S.W. 2d 449; Hill v. State, 253 Ark. 512, 487 S.W. 2d 623; Blanton v. State, 249 Ark. 181, 458 S.W. 2d 373. We find no abuse of that discretion here.
The judgment is affirmed. | [
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Conley Byrd, Justice.
Appellant Donald C. King seeks to set aside his manslaughter conviction on the basis of evidence discovered after the verdict. We find no merit in the contention.
The record shows two altercations between appellant and the decedent, his brother, on the date of the killing. The first altercation occurred while their mother and another brother were present. After that altercation was broken up and the decedent had started to watch television the brother and the mother departed. Thereafter appellant shot decedent at close range with a shotgun. To bolster his contention that he shot his brother because he was advancing toward him with a steak knife, appellant sought to show that decedent had a knife during the first altercation. Neither his brother nor his mother supported him on that issue during the trial. However, after the jury had retired, but before the verdict, the mother recanted and wanted to state that decedent did have a knife during the first altercation. The trial court refused to grant a mistrial before the jury returned or a new trial thereafter.
We find no abuse of discretion. See Cooper v. State, 246 Ark. 368, 438 S.W. 2d 681 (1969).
Affirmed.
Harris, C.J., not participating. | [
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Ed. E. McFaddin, Justice.
The Chancery Court granted the wife a divorce and also made a division of the real property. The husband challenges the decree.
I. Sufficiency of the Evidence as to Grounds of Divorce. Mrs. Price (plaintiff below) said that her husband had frequently slapped and otherwise mistreated her during the twenty-five years of their married life. Of Mr. Price’s acts which caused her to leave him and sue for divorce, she testified:
“ . . . He had his fist drawn back and he hit me in the face and bruised my eye and knocked me on the floor. I couldn’t get up. I just lay there and the first thing I knew he was picking me up, and helped me to the bed. I don’t know what happened while I was down on the floor. I didn’t know anything. . . . When I started out he told me he didn’t mean to hurt my eye; and I told him I was hurt awfully bad, and that my eye was nothing like the spot inside my breast; and I had a bruise over my breast, and on my back and my arm. I had bad bruises all over my body.”
The twenty year old daughter of the parties testified : that when she entered the room in which the altercation occurred, her mother and father were alone; that her mother’s eye was “swollen almost together”; that her mother was sitting on the bed; and that when the daughter remonstrated with the father, “he said he didn’t hit her with his fist, that he just slapped her.” The testimony also shows that Mrs. Price went immediately to the home of her mother and sister; and they testified as to the extent of her injuries and bruises.
While Mr. Price denied striking his wife, he did not deny his daughter’s testimony; and his offer made in open court — that he would treat his wife as she should be treated if she would return to him — implies an admission of wrongdoing, and a plea for forgiveness. The Chancellor delayed, for some time, the entry of a decree; bnt when he found there was no prospect for a reconciliation, and that Mrs. Price entertained fear for her welfare if she returned to Mr. Price, then the decree was granted. We hold it was correctly granted. (See Lupton v. Lupton, 210 Ark. 140, 194 S. W. 2d 686.)
II. Division of the Property. Three parcels of real property are involved:
(a) — The “Dover Cafe” property (part of two lots in the town of Dover) in which the Chancellor awarded the wife one-half interest in fee;
(b) — The “Gravel Hill” property (121 acres) in which the Chancellor awarded the wife one-third interest in fee; and
(c) — The “Home Place” (75 acres) in which the Chancellor decreed the parties to be tenants in common in one portion, and the wife to have one-third estate for life in the other portion.
The husband claims that the wife is usually entitled to only one-third life estate in the realty (see § 34-1214 Ark. Stats. 1947); and the wife, by cross-appeal, claims one-half interest in fee in all the property; and also asks a reasonable attorney’s fee.
It is clearly shown that Mrs. Price’s wages went into a joint bank account; and that from such account there were paid — directly or indirectly — the considerations for the “Dover Cafe” property and the “Gravel Hill” property. The record is replete with deposit slips, bank statements, and earning reports, showing the source of funds that augmented the joint account. It is unnecessary to detail all of these, but, from a careful study of the record, we reach the following conclusions:
(a) — We affirm the decree of the Chancery Court awarding the wife one-half interest in fee in the “Dover Cafe” property. When Mr. and Mrs. Price purchased the cafe, they did so on an equal basis; and her energy and efforts were responsible for the success of the business and the profits that it made. (See Williams v. Williams, 186 Ark. 160, 52 S. W. 2d 971.)
(b) — In the “Gravel Hill” property, we award Mrs. Price an undivided one-half interest in fee. It was shown that in 1948 the Prices took a mortgage, in their joint names, on 80 acres of this property. Later the owner transferred the entire 121 acres in satisfaction of the previous mortgage and for an automobile which had been purchased indirectly with funds from the joint account. So as to the “Gravel Hill” property, Mr. and Mrs. Price are tenants in common, each owning one-half undivided interest.
(c) — As to the “Home Place,” the Court found that the title to this property was acquired by two different transactions. There was one deed (called “the Brewer deed”) made in 1930, to an undivided interest, and another deed made in 1943 to an undivided interest. In his brief appellant does not contend that the Chancery decree was in error as to this property, so we affirm the decree of the Chancery Court regarding the “Home Place.”
III. Attorney’s Fee. On her cross-appeal, Mrs. Price asked for attorney’s fee, but we decide against such allowance. The record reflects that in May, 1948, at a time when the parties were separated and before the October events that led to this divorce action, Mrs. Price withdrew from the joint bank account the sum of $325 for her own use. Here is the testimony:
“Q. What is this $325 check shown on the bank statement from the Peoples Exchange Bank?
“A. I put that in the Bank of Russellville in my name.
“Q. And that closed out the account!
“A. Yes.”
The appropriation of this money by Mrs. Price constitutes a sufficient sum which she can use to pay the attorney’s fee.
CONCLUSION
We affirm the Chancery Court in all respects, except to increase Mrs. Price’s interest in the “Gravel Hill” property from one-third fee, as awarded, to one-half fee as now determined; and we adjudge the costs of all Courts against Mr. Price.
The parties did not live on the property and no homestead rights are involved. They merely used such designation for convenient reference.
It will be noticed that Mr. and Mrs. Price acquired the title to the “Gravel Hill” property in 1948, which was after the effective date of Act 840 of 1947, as found in § 34-1215, Ark. Stats. 1947. This statute is not cited in the briefs, but we point out that even if the title had been by entirety to this property, nevertheless the Chancery Court in this case had power to decree the husband and wife to be tenants in common, since the property was acquired after the effective date of Act 340 of 1947. We are not called on, at this time, to determine the effect of the 1947 Act on entirety titles created before its enactment. (See 1 Arkansas Law Review 220.) | [
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Mehaffy, J.
Appellee, G. F. Emison, filed- this suit against the appellant, W. L. Tedford, in the Pulaski Chancery Court to cancel a deed from the State of Arkansas to the appellant based on a tax forfeiture of 1924, under act 129 of the Acts of the General Assembly of 1929 to the east sixty feet of lot one in block twenty-five in North Argenta Addition to the city of North Little Eock, Pulaski County, Arkansas.
The appellee alleged that the deed was void because the act under which the State sold the land to appellant was unconstitutional, contrary to public policy, and creates unethical practices. He also alleged that the deed was void because the purchaser from the State could buy the land for less money than the owner could redeem for; that personal service of the intention to purchase the land .should be made upon the owner unless he was a nonresident of the State; that the proceeding is an attempt to confiscate appellee’s property without compensation. It was also alleged that the forfeiture and sale for the taxes of 1924 is void, and as such constitutes a cloud upon appellee’s title. The prayer is that the deed should be canceled and held for naught. The appellant filed motion asking that appellee be required to deraign his title. The court overruled this motion, and the appellant filed answer denying that appellee was the owner of and in possession of the property. Appellant admitted that he had purchased the land under act 129 of the Acts of the General Assembly of 1929, but denied that his purchase was a cloud on appellee’s title; denied that the act was unconstitutional, and denied that it was against public policy or had the effect of defeating the State of its taxes. Appellant denied that the service of the notice was insufficient, and denied that the forfeiture and sale was void, and asked that appellee’s complaint be dismissed.
Parties entered into the following stipulation:
“1. That on the 3d day of June, 1929, the defendant, W. L. Tedford, paid to the State of Arkansas, to obtain its deed to the east sixty feet of lot one in block twenty-five, North Argenta Addition to the city of North Little Rock, Pulaski County, Arkansas, the sum of $30.26.
“2. That the defendant, W. L. Tedford (appellant), put a roof on the house situated on the above described property at a cost of $27.80.
“3. That the defendant, W. L. Tedford, has collected rent on said property from June 1, 1929, amounting to $97.50.”
G. P. Emison testified in substance that he was the plaintiff and lived at 1509 Maple Street, North Little Rock, Arkansas; that he was the owner of the east sixty feet of lot 1 in block twenty-five, North Argenta, an addition to North Little Rock; that it was mortgaged to the Building & Loan Association; that he was a peace officer in North Little Rock and had been for two years—since the first of February, 1929; that he was a resident of North Little Rock in April, 1929; that the People’s Savings Bank had no interest in the property in question in April, 1929; that he bought the property from the People’s Bank September 12, 1922, paid for it in full and obtained a deed from the bank to the property.
The following was then introduced in evidence:
“NOTICE
“T6 G. F. Emison,
“People’s Savings Bank.
(H. W. Trigg, Jr., Cashier, 4-26.)
“Please take notice that I intend to purchase the following described property from the Commissioner of State Lands, Highways and Improvements on or after thirty days from the date of service of this notice upon you, to wit:
“East sixty feet of lot one in block twenty-five in North Argenta Addition to the city of North Little Rock, Pulaski County, Arkansas.
“W. L. Tedford, Proposed Purchaser. “Piled: R. A. Cook, Sheriff and ex-Officio Collector of Taxes, Pulaski County, Arkansas, 4:45 p. m., April 25, 1929.
“State of Arkansas
County of Pulaski
“I have this twenty-sixth day of April, 1929, duly served a true copy of the within notice on H. W. Trigg, Jr., cashier of the People’s Savings Bank, the president being absent, in person in said county. I was unable to locate G. P. Emison in this county.
“R. A. Cook, Sheriff,
“By A. B. Simmons, Deputy Sheriff.”
This witness testified on cross-examination that he bought the property in controversy from Mrs. Bates; that he bought the whole lot, which was-in the building and loan; that he bought it in 1922 and soon after that put it in the Building & Loan Association. In 1924 or 1925 it was in the Argenta Building & Loan Association, and at that time his' father and mother were looking after the property, which was occupied by a tenant. Witness was in Michigan; that property has always been tenant property, and he never lived on it himself; that it was supposed to be listed in his name for taxation, and if he had known that it was not paid on he would have paid it; that he paid the taxes for 1922 to the sheriff and collector, or that his father and mother did; that he has the tax receipts which he will exhibit, and that he did not know how he lost the sixty feet involved in this.suit; that he thought that his father had the abstracts which he had made for the purpose of making a loan; that the lot may have been divided; that when he bought it in 1922 he bought the whole lot from Mrs. Bates; that he had a tenant on the property in April, 1929, and that the tenant still lives on the property and had for three or four years. Witness did not know whether the People’s Bank paid any taxes or not. When he bought the property, it was assessed in the name of Mrs. Bates, or it might have been the People’s Bank, and he had it changed to his own name. The tax receipts introduced show only the west 90 feet of the lot was being paid on. The taxes on the land in controversy, the east 60 feet, had not been paid on since 1922. Witness introduced the deed from the People’s Savings Bank to appellee. He did not know the 60 feet in controversy was not included in his tax receipts. Taxes were paid by his agent as he was absent from Pulaski County for four years.
Luther Adams testified, in substance, that he was. deputy county clerk of Pulaski County and had served as such for 15 years; that there had not been a list of delinquent lands posted in the county clerk’s office for the last ten years; that the list had been in the office, but had not been posted up; that he means by posting that the list had never been .tacked on the wall in the office; that the delinquent list is about 10 feet long and four feet wide and shows the land which is unredeemed for two years from the date of the sale; that the list is printed and kept in a roll and placed in the book rack; that the printed list usually comes from the printer in rolls and is then put in the book rack on the east wall of the clerk’s office. The rack is open and under plain observation in plain view, and is referred to often. Witness said:
“We take it out of the rack and unroll' it. The collector is supposed to post these lists in the different townships at the tax-paying places. We have no place on the walls to post the list.”
Several years ago when Mr. Brodie was county clerk, a list was tacked up on one of the columns or posts in the vault. This list shows the unredeemed lands up to December 31st, showing what lands could be redeemed before the following June, and for the two years prior thereto.
Witness knows of no instance where the inquirer failed to ask some one in the office about the forfeited lands about which he was seeking information.
Attorney for appellee stated that the receipt shows this land was sold in 1923 for the taxes of 1922, and the tax receipt for 1924 shows payment only on the west 90 feet. There is nothing in the record to show when the 60 feet in controversy was forfeited to the State.
The chancery court found that appellee was the owner of the land in controversy and was in the actual possession thereof on the 3d or 4th of June, 1929; that he had no notice of the intention of defendant to buy the land from, the State of Arkansas; that appellee was entitled to recover from appellant the rent on the property from June 1, 1929, to April 1, 1930; that the deed from the .State to appellant should be canceled and held for naught; that appellant was not entitled to recover either the amount he paid to State or of the amount he paid for putting a roof on the house; that appellee should recover $97.50 rent and costs, and that appellee should have the right to redeem the property.in question from the State.
The undisputed evidence in this case shows that appqllee bought the land in controversy in 1922, paid for it, and received a deed. Taxes were paid on the property in 1922. The lot was evidently 150 feet wide. After 1922, for some reason, the taxes were paid on the west 90 feet and the east 60 feet was not paid on and was forfeited to the State for the taxes in 1924. The appellee himself was absent from the 'State, and his parents were looking after the property for him. When he left here, the property was occupied by tenants and at the time of the forfeiture and at the time of the purchase from the State by the appellant the appellee’s tenants still occupied the property. Appellant undertook to comply with the act of 1929 by giving the notice required by that act. Notice was directed to the People’s Savings Bank and to the appellee, Gr. F. Emison. Appellant must have ascertained that Emison was the owner or he would not have directed notice to him. The notice was served on the People’s Savings Bank, but no notice was ever served on appellee, and appellee had no knowledge or information that the land was delinquent or had been forfeited for taxes until after the purchase by appellant.
It is contended by appellee that act 129 of the Acts of 1929' is unconstitutional and void. We do not find it necessary, however, to pass on this question.
Section'10,084 of O. & M. Digest provides, among other things: “He shall also keep posted up in or about his office such delinquent list for one year.”
The undisputed proof in this case by the clerk shows that he did not comply with that part of this section by keeping’ posted up in or about his office the delinquent list. To post has a well-defined meaning, and it does not mean keeping the list in the office in a roll placed in a book rack, as Mr. Adams, the clerk, testified that they were kept in this county. He testified that there had not been a list of delinquent lands posted in the county clerk’s office for the last ten years, but the facl^that the law has not been complied with does not make it any the less binding.
This law, however, does not require that the list be posted up in the office, but it must be posted in or about the clerk’s office. The purpose, of course, of posting the list is to give information or intelligence or knowledge to the landowner as well as the public that the described lands are delinquent.
One of the definitions of ‘ ‘post” given by Webster is: “To publicly announce or advertise by or as by the use of a placard; to affix public notices to; to placard, as a wall; to affix to a post, wall, or other usual place for public notices; to placard. ’ ’
In the case of Hilgers v. Quinney, 41 Wis. 62, 8 N. W. 17, the court said, in construing a statute with reference to affidavit as to notices where the statute required them to be posted up in four public places and the affidavit showed: “ ‘One at the Chilton House, one at the drug store of William Mahoney, one at the Washington House, and one at the office of the county treasurer,’ was insufficient, because (1) Four public places in the village of Chilton were not necessarily four public places, so far as the county was concerned; (2) because ‘at’ is not synonymous with ‘in’; and (3j because it did not appear that the posting in the treasurer’s office was in a conspicuous place. ’ ’
The Wisconsin court, in a later case discussing this, Said: “Notwithstanding what was said on this subject in the Hilgers case, we do not feel that we ought to hold that this variance alone is fatal. The word ‘post,’ when used in the present connection, means ‘to attach to a post, or wall, or other usual place of fixing public notices; to bring to the notice or attention of the public by affixing to a post, or putting up in some public place.” Allen v. Allen, 114 Wis. 615, 91 N. W. 218.
The variance mentioned by the court in the above case was the use of “at” for “in,” and the court held that alone was not fatal.
The Florida court held in construing rules required to be published by the railroad companies: ‘ ‘ The meaning of the word ‘posted,’ as used in rule 4, is that the rules and regulations should be advertised in the form of a poster in the railroad stations; or, in other words, that, printed in bill or placard form, they shall be so attached to something in a conspicuous place in the stations that they can, in the position in which they are placed or without being removed, be read conveniently by the public. This is the usual and ordinary meaning of the term ‘posted,’ as we see it manifested daily in the posting of notices like those of sale, or against trespass, as well as other kinds. No other construction can be given it with out straining its ordinarily understood meaning, nor does any other ¡meaning so well fulfill the purpose and intent of rule 4, that these rules and regulations should be exhibited in the places stated for the information and benefit of the public. We do not think the purpose of the act, that these rules and regulations should be published, is met by the use of a pamphlet.” State v. Pensacola & A. R. Co., 27 Fla. 403, 9 So. 89.
The Texas court stated: “The copies of the order are required to be ‘posted/ The word ‘posted’ is defined as follows: ‘to attach to a sign post or other usual place of affixing public notices; to advertise; as to post a notice. ’ That such posting was intended to be notice or nothing is so plain, we think, that he who runs may read.” Voss v. Terrell, 12 Tex. Civ. App. 439, 34 S. W. 170.
There was no compliance with the statute requiring the list to be posted, and that is a positive duty imposed upon the clerk for the purpose of advising that lands are delinquent.
“I have no doubt whatever that it is essential, in order to give the surrogate jurisdiction of the person of the heirs, that this provision of the statute should be strictly complied with. It is the only process to bring them into court, and without it they are without their day in court. And I think that notice for the full time required by the statute is equally indispensable; that short notice is as no notice.” Sheldon v. Wright, 7 Barb. ,(N. Y.) 39.
In the instant case notice by posting a list was indispensable, and the tax sale without this notice was void. We held that the attaching of the warrant by the clerk was jurisdictional, and that the tax sale without this was void. Wildman v. Enfield, 174 Ark. 1005, 298 S. W. 196.
Appellant insists that at the time of the passage of this statute in many counties this was the only means the owner and the public had of information as to delinquent lands. And it is contended that in this county it is impracticable to post the list, and that there are so many forfeitures in this county that posting the lists would serve no useful purpose. However, the law requires the posting of the list, and it is important to the landowner as well as the public that this list should be published as required by law.
We said also in the above case, quoting from a Missouri case: “I hold it is true that, in ex parte and summary proceedings, the law must be strictly pursued. In the ease of McClung v. Ross (5 Wheat. 116, 5 L. ed. 16), it was decided by the Supreme Court of the United States, under the laws of Tennessee, where lands are sold by summary proceeding for the payment of taxes, it is essential to the validity of the sale and of the deeds made thereon that every fact necessary to give the court jurisdiction should appear upon the records.”
When one’s land is forfeited for taxes, and this may happen without the owner’s knowledge, it is essential that the statute be complied with. To deprive one of his property by such proceedings, it is necessary to the validity of the sale and of deeds made thereon that the records show that this statute has been complied with.
As we have already said, the statute does not require the clerk to keep them posted in his office, but it does require that the list must be posted in or about his office. He could post it by putting it on the wall in his office, or about his office, or by providing a bulletin board and posting it on it.
We said in a recent case: “It is true that the record also shows that the land was sold in 1922 for the nonpayment of taxes for the year 1921, but this sale was void because the records in the county clerk’s office do not show that the result of the school election for the school district in which the land was situated was certified as required by § 8955 of C. & M. Digest, and the results of the election certified by the county board of election as required by § 8878 of C. & M. Digest. This rendered the sale void.” Thomas v. Spires, 180 Ark. 671, 22 S. W. (2d) 553.
Appellant contends that this is really a suit in ejectment, and that appellee should have been required to set forth his deeds and evidences of title upon which he relies. Appellee would have been required to do this in a suit in ejectment. But that character of suit is brought only when the party against whom it is brought is in possession. Here the tenants who were put in possession of the property by appellee were still in possession. They were in possession at the time of the forfeiture and sale and were in possession at the time appellant purchased from the .State. The fact that the appellant induced these tenants to pay the rent to him did not put him in possession. This was a suit to cancel a deed alleged to be void, and not a suit in ejectment.
We think the undisputed proof shows that the appellee was in possession, although the appellant had collected some rents.
In addition to this, appellant himself asked for a decree of the court quieting his title as against the appellee. It is contended also by the appellant that the court erred in not allowing him the $30.26 paid to the State and the $27.80 expended in reroofing the house, and that the court should not require him to pay the $97.50 rent. ' We do not agree with the appellant in these contentions.
As we have already said, the appellant was in possession. The sale and deed of appellant were void. Moreover, the law requires notice to be given of the intention to purchase. This notice was not given. There are other questions discussed by learned counsel, but, as we hold that the tax sale and deed are void, it becomes unnecessary to discuss these other questions.
The decree of the chancery court is affirmed. | [
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Carleton Harris, Chief Justice.
Appellant, Jefferson Cooperative Gin, Inc., is an agricultural cooperative organized under the provisions of Act 153 of 1939 (Chapter 10, Ark. Stat. Ann. §§ 77-1001 — 77-1025 [Repl. 1957 and Supp. 1971]). Section 77-1001 inter alia provides that associations organized under the act shall be deemed to be non-profit, not being organized for the purpose of making profits for themselves or the members, as proprietors, but only for their members, as patrons and employees of the association. Section 77-1023 provides that each association organized under the act shall pay an annual license fee of ten dollars to the Secretary of State, and “shall be exempt from all privilege, franchise, license or other taxes, but not from taxes upon its real estate and personal property.” In 1969, the General Assembly enacted Act 311 amending the section just mentioned, and providing that each association shall pay an annual license fee of ten dollars to the Secretary of State, “and in addition shall be subject to the Arkansas Gross Receipts Tax Act of 1941 (§§ 84-1901 — 84-1929), as amended, and the Arkansas Compensating Tax Act of 1949 (§§ 84-3101 — 84-3128), as amended, and all other taxes levied in this State, except that any association which immediately distributes at the close of each business year all surpluses by cash or certificate to its members shall not be subject to the Arkansas Income Tax Act (§ 84-2001 et seq.) with respect to such income. All such associations shall be subject to taxes upon its real estate and personal property.”
Following enactment of this legislation, the Department of Finance and Administration levied a corporate franchise tax in the amount of $222.79 plus penalties upon appellant; the tax was paid under protest and thereafter appellant sought relief by instituting suit in the Pulaski County Chancery Court, praying that the court declare the assessment and collection of said tax to be illegal, and asking that the court declare it (Jefferson) entitled to a refund of said tax. The matter was heard upon a stipulation between the parties, it being inter alia stipulated that appellant is an Arkansas agricultural cooperative association, organized under the aforementioned act and that it had exhausted its administrative remedies before instituting suit. It was also stipulated that the question before the court was whether Act 311 of 1969, or any other statute of this state, authorized the assessment and imposition of the corporate franchise tax on agricultural marketing associations organized under Act 153 of 1939, as amended by Act 311 of 1969. On trial, the court entered its decree holding that the assessment and collection of franchise taxes against appellant was legal and valid; appellant’s complaint was dismissed, and judgment rendered for appellee for the taxes as collected, together with costs. From the decree so entered, appellant brings this appeal.
At the outset, it should be borne in mind that certain basic differences exist between an agricultural cooperative and a general corporation. It has already been pointed out that under Ark. Stat. Ann. § 77-1001, agricultural cooperatives (although not eleemosynary) are deemed to be non-profit, existing solely for the purpose of making a profit for the members in their individual capacities as producers. Chapter 18 (§§ 84-1833 — 84-1842), entitled “Corporate Franchise Taxes”, passed as Act 304 in 1953, deals with the franchise tax for profit making corporations. However, the act makes clear that non-profit associations are not included, § 84-1833 providing:
“The term ‘corporation,’ as used in this act (§§ 84-1833 — 84-1842), shall mean and include all corporations, domestic and foreign, active and inactive, organized or qualified to do business under the laws of the State of Arkansas permitting the doing of business for profit [our emphasis], and shall include all corporations operated by receivers and trustees of any court, and corporations which rent or lease their property to any person, firm or corporation.”
With this background, it is argued by the state that it is clear that the legislature, in enacting Act 311 of 1969, removed agricultural cooperatives from the franchise tax exemption. In construing the statute, the state points out that the primary rule is to ascertain and give effect to the intention of the law makers, and it is correctly stated that there are several aids in determining this intent. Appellee calls attention to the title of Act 311, as follows:
“AN ACT to Amend Section 24 of Act 153 of 1939 (Ark. Stats. [1947] Section 77-1023) to Subject Agricultural Cooperative Associations to All Taxes Now or Hereafter Imposed On Corporations; and for Other Purposes.”
Contemporaneous legislation passed during the same session is also mentioned, viz., Act 395 of 1969, whereby the exemption for rural telephone cooperatives from the sales tax and use tax was specifically removed; also Act 119 of 1969 removed the exemption for electric cooperative corporations from the sales tax and the use tax. It is demonstrated, says appellee, that in the last mentioned acts, exemptions were removed for specific taxes only, but that in the act, now under discussion, by adding the words “and all other taxes levied in this State,” the General Assembly made it clear that it had in mind subjecting agricultural cooperatives to additional taxes besides those specifically mentioned.
However, let us bear in mind that there is also a cardinal rule which must be observed in construing taxing legislation. In Commissioner of Revenues v. Arkansas State Highway Commission, 232 Ark. 255, 337 S.W. 2d 665, we said, quoting an earlier case :
“It is the general rule that a tax cannot be imposed except by express words indicating that purpose. The intention of the Legislature is to be gathered from a consideration of the entire act, and where there is ambiguity or doubt it must be resolved in favor of the taxpayer, and against the taxing power.”
See also Cook, Commissioner of Revenues v. Ayers, 214 Ark. 308, 215 S.W. 2d 705, and cases cited therein.
The franchise tax was levied on corporations doing business for profit, but none of the acts mentioned levy a franchise tax on non-profit corporations, or associations. Section 84-1833, relating to general corporations, provides for the payment of a franchise tax by those corporations “permitting the doing of business for profit” and this language clearly does not include non-profit corporations, and we have so held. In State v. Bankers’ and Planters’ Mutual Insurance Association, 152 Ark. 182, 238 S.W. 17, the state attempted to impose the franchise tax upon a mutual insurance association that paid death benefits to its members. In finding the state’s position to be unsound, this court held that the insurance company was not liable for the tax because it was not doing business for profit, stating:
“The term, ‘doing business for profit,’ as used in the statute, refers to the operation of the corporation itself — whether it is doing business for profit — and has no reference to the remuneration received by its officers.
“In order to impose liability for tax it must be found that the character of business sought to be taxed falls, either expressly or by fair implication, within the language used. It does not appear to us that the language of the statute includes a corporation doing business according to the method pursued by appellee.”
This opinion construed Act 122 of 1913, the corporation franchise tax act in effect at that time, and in 1953, the General Assembly passed Act 304 of 1953, the present corporation franchise tax act, but the language as affecting non-profit corpora dons is not substantially different, i.e., neither act subjects a non-profit corporation to the franchise tax. We have held that the legislature is presumed, in enacting a statute, to have had in mind court decisions pertaining to the subject legislated on and to have acted with reference thereto, Terral v. Terral, Admx., 212 Ark. 221, 205 S.W. 2d 198; accordingly, under the presumption of legislative awareness, the General Assembly is presumed, in enacting Act 311 of 1969, to have acted with full knowledge that this court had construed the franchise tax act as being inapplicable to non-profit corporations. Ark. Stat. Ann. § 77-1018 (a part of the agricultural cooperative associations act) provides that the provisions of the general corporation laws of the State apply to the associations organized under the act except where such provisions are in conflict with or inconsistent with the express provisions of §§ 77-1001 —77-1025. As already pointed out, this act declared associations organized under its authority to be non-profit. This provision has not been changed by any legislation.
Summarizing, the language of Act 311 of 1969 “and all other taxes levied in this State” certainly does not itself levy a tax; as herein pointed out, since there is no act that, by express words, indicates the intent to levy such a tax on agricultural cooperatives, and ambiguity or doubt being resolved in favor of the taxpayer, we hold that appellant is not liable for the tax.
Reversed.
Scurlock v. City of Springdale, 224 Ark. 408, 273 S.W. 2d 551. | [
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Lyle Brown, Justice.
The appellants, Billy Ray Patrick, Lonnie Ray Randolph and James Jackson were convicted of burglary and grand larceny in connection with the burglary of Foqg’s Grocery Store in Eudora. Appellants attack the propriety of their confessions being admitted into evidence. Also, they contend that the trial court erred in admitting exhibits consisting of some dollar bills, silver certificates, quarter wrappers and an empty cartridge box, all of which purportedly came from the victim’s safe.
The first point concerns the admissibility of Lonnie Ray Randolph’s statement. It is pointed out that Randolph was incarcerated for five days; that the jail cell was leaky; that he was questioned several times by five officers; and that he was fifteen years of age at the time. No evidence was introduced that any of the recited circumstances contributed to coercion. Randolph’s main argument is that the taking of a statement from a fifteen year- old boy is violative of his constitutional rights. We have held to the contrary in a case involving a boy of the same age. In Mosley v. State, 246 Ark. 358, 438 S.W. 2d 311 (1969) we said:
By the great weight of authority a minor is capable of making an admissible voluntary confession, there being no requirement that he have the advice of a parent, guardian, or other adult. The cases are anaylzed at length in People v. Lara, 62 Cal. Rptr. 586, 432 P. 2d 202 (1967), and need not be re-examined here.
Randolph also contends that no statement should have been taken from him because of his age. He cites Ark. Stat. Ann. § 45-224 (Repl. .1964). That statute provides that a person under eighteen years of age, who is arrested without a warrant, shall forthwith be taken before the county juvenile court and the case examined to determine whether he is dependent or neglected. That statute is directory and not mandatory. We have so held with respect to a similar statute, Ark. Stat. Ann. § 43-601 (Repl. 1964). That statute provides that any person arrested without a warrant shall be forthwith carried before . a magistrate. We have held § 43-601 to be directory and not mandatory; further, we have many times' recited that the failure to comply with that statute does not void a confession. Moore v. State, 229 Ark. 335, 315 S.W. 2d 907 (1958); Paschal v. State, 243 Ark. 329, 420 S.W. 2d 73 (1967).
All three appellants gave confessions. Those instruments were introduced in toto. Each confession implicated the other two appellants. Appellants argue here — and made it known in the trial court — that it was error to introduce cross-implicating confessions. (None of the appellants testified.) The point is well taken. We faced the same problem in Mosby and Williamson v. State, 246 Ark. 963, 440 S.W. 2d 230 (1969). Thére we said:
It now appears that the use of the cross-implicating confessions in the case at bar is not permissible in a joint trial because of being in violation of the confrontation clause of the federal Sixth Amendment. The answer to the problem seems to be to delete any offending portions of the admissions with reference to a codefendant, if such deletion is feasible and can be done without prejudice, or to grant separate trials.
To the same effect see Byrd, et al v. State, 251 Ark. 149, 471 S.W. 2d 350 (1971); Grooms v. State, 251 Ark. 374, 472 S.W. 2d 724 (1971).
Because of a possible second trial we treat one other point. That concerns the introduction by the State of some dollar bills, silver certificates, quarter wrappers, and an empty cartridge box. The dollar bills had an unusual fold so that they might fit into a very small Chinese envelope. The prosecuting witness identified the bills by the folds and we think that evidence was admissible. The silver certificates, quarter wrappers, and the empty cartridge box bore no particularly identifying marks and therefore should not have been introduced.
Reversed and remanded. | [
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John A. Fogleman, Justice.
Appellant Pioneer Finance Company, a foreign corporation not authorized to do business in Arkansas, brought suit against appellees on a promissory note executed by them to Rainbow Industries and secured by a security agreement. Appellant alleged that, prior to maturity, the note was assigned to it. The note, an exhibit to the complaint, was an installment note given for the balance of the purchase price on a Rainbow Home Conditioner. In their answer, appellees alleged that Pioneer Finance Company was not authorized to do business in the State of Arkansas and that the agreement was unenforceable by it in the courts of Arkansas and void ab initio. They also alleged that Rainbow Industries was not authorized to do business in the State of Arkansas and that the agreement was unenforceable by it and void ab initio. Later, appellees filed a motion for summary judgment based upon the fact appellant was a foreign corporation not authorized to do business in Arkansas and alleged it was barred from enforcement of the note under the provisions of Ark. Stat. Ann. § 64-1202 (Repl. 1966).
The circuit court granted this motion for summary judgment after considering the affidavit of the secretary of state in which that official stated Rainbow Industries was not qualified to do business in Arkansas as a domestic or foreign corporation. We reverse the summary judgment because appellees did not meet their burden of demonstrating that there was no genuine issue as to any material fact.
The certificate of the secretary of state had no bearing whatever upon appellant’s right to enforce the note. No one has ever asserted that Rainbow Industries is a corporation. In its complaint Pioneer Finance Company alleged that Rainbow Industries was a proprietorship owned by Kyle Day. There is nothing in the note sued on, the security agreement or the assignment to appellant to indicate anything to the contrary. Even if appellees’ answer was sufficient to put that question in issue, it has not produced evidence that Rainbow Industries is a corporation, either foreign or domestic. Consequently, the status of Rainbow Industries cannot be a basis for summary judgment in this case.
Appellees have also failed to meet their burden of showing that the assignment of the contract was made in Arkansas. Widmer v. J. I. Case Credit Corporation, 243 Ark. 149, 419 S.W. 2d 617.
Appellees’ arguments with relation to the burden of proof at trial and that appellant was barred from en forcement of the note because it transacted a substantial part of its ordinary business in Arkansas are wholly irrelevant at this stage. There is absolutely no evidence as to the nature and extent of the business conducted in Arkansas by Pioneer Finance Corporation in the record at this time. Of course, our statutes and cases make it quite clear that the burden is on the movant to establish that there is no genuine issue of material fact. See Ark. Stat. Ann. § 29-211 (Repl. 1962); K and S International, Inc. v. Howard, 249 Ark. 901, 462 S.W. 2d 458; Widmer v. J. I. Case Credit Corp., supra. It is only when the moving party has clearly met its burden that the opposing party has the burden of demonstrating the existence of such an issue, and only then will its failure to offer evidence in opposition to the motion entitle the movant to a summary judgment. Hervey v. AMF Beaird, Inc., 250 Ark. 147, 464 S.W. 2d 557.
The judgment is reversed and the cause remanded for further proceedings.
Harris, C.J., not participating. | [
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McHaney, J.
On June 16, 1924, appellants executed and delivered to the Guthrie Mortgage Company a promissory note in the sum of $3,000, due ten years after date, with interest from date at 6 per cent, per annum, secured by a deed of trust on 155 acres of land owned by the appellants in Howard County, Arkansas. Four days later, on June 20,1924, the above mentioned note and deed of trust were duly assigned to the appellee and a memorandum thereof noted on the record of the deed of trust. On the 17th day of September, 1924, the Guthrie Mortgage Company settled with appellants for the amount of the loan by paying off a prior mortgage in the sum of $1,800 and retaining $1,200 as a commission for procuring the loan, and which amounted to 4 per cent, per annum of the face value thereof for ten years. In 1927 the land covered by the deed of trust was forfeited for the nonpayment of taxes for the year 1926 and sold to a third party. The period of redemption expired without a redemption being effected, and sometime thereafter the appellee secured a conveyance of said lands from the purchaser at the tax sale and paid therefor the sum of $488, a sum largely in excess of the taxes, penalty and costs required to be paid in order to redeem. Appellee thereafter, in September, 1929, instituted an action to foreclose his deed of trust, some of the interest payments being delinquent and there being an acceleration clause in the deed of trust providing that, on default in payment of interest, taxes, etc., the whole amount might be declared due and payable. Summons was served upon the appellants and in a short time thereafter appellant, E. M. Butts, and his son-in-law, Floyd Tollison, called upon counsel for appellee and asked for additional time in which to raise sufficient money to pay up his indebtedness. Mr. Butts and his son-indaw testified that they understood the counsel for appellee agreed to take no further steps in the matter until about the first of January, at which time they thought they could raise the money to pay off the accrued indebtedness. Counsel for appellee testified that he told them he would give them until the first of January to pay up, but that he would go ahead and take a formal decree of foreclosure at the November term of court, but would not advertise the land for sale until after January 1, 1930; that they asked him if any additional costs would accrue, and he advised them that whatever additional costs accrued by the taking of the decree would be paid by him. , A decree was taken in November, but the property was not advertised for sale until after January 1, no payments having been made by appellants, and was sold by the commissioner on January 31, 1930. Thereafter the sale was duly reported to the court, and on February 14, appellants filed their exceptions to the report of sale and moved the court to set aside the judgment, permit them to answer, and to interpose the plea of usury to the note and mortgage and the excessiveness of the judgment. They alleged that they had been deceived by counsel for appellee and led to believe that the case would not be heard until after the first of January, 1930, instead of November, 1929. They also alleged that the judgment was excessive in that the sum. of $488 paid for a conveyance of the tax title was excessive, for the reason that the taxes only amounted to about $35. As to the usury, it was alleged that the contract for the loan with the mortgagor was void for the reason that it was tainted with usury on account of the $1,200 retained by the mortgage company as commission and the 6 per cent, to be paid in the note and deed of trust.
The court overruled appellant’s exceptions to the report of sale, decreed a confirmation thereof, and this appeal followed.
The evidence is in dispute as to what happened about the continuance of the case after service was had upon appellants, but we think the preponderance of the evidence is with the appellee that there was no agreement to take no further steps in the case until after January 1,1930. Appellants ’ evidence was to the effect that they so understood the agreement with appellee’s counsel, but, on the other hand, appellee’s testimony was positive and direct that he only agreed to postpone advertising the property until after January 1, 1930.
We find it unnecessary to decide whether the contract between appellants and the mortgage company was usurious and whether appellee was affected with notice thereof, if it were usurious. When appellant Butts and his son-in-law went to counsel for appellee, their only request was for time in which to raise money with which to pay off the accrued indebtedness. There was no mention of a defense to the action, or a request for time in which to make a defense to the action. Their only purpose was to secure a delay in order that they might raise the money necessary to pay the accrued indebtedness. Usury is a defense which must be pleaded, and appellants had ample opportunity to make the plea before the decree was rendered and before the land was sold. They neglected to do this. They waited for a period of approximately ninety days after the decree of foreclosure was taken, * * * after the land had been sold and report of sale made, and was pending before the court for confirmation before offering* to make any defense to the action whatever. It therefore rested in the sound discretion of the court as to whether it would undo and set aside everything that had been done in the case up to that time and permit them to file an answer. It exercised this discretion after hearing the evidence and declined to set the proceeding’s aside. We cannot say therefore that the court abused its discretion in this regard. They had notice of the pendency of the suit by actual service. They had been advised that if they would pay the accrued indebtedness by January 1, the controversy might be settled. They knew that they did not pay the accrued indebtedness by January 1, or any other time. They made no pretension to counsel for appellee that they desired to make any defense to the action. We are therefore of the opinion that the court did not abuse its discretion and that the judgment must be affirmed. It is so ordered. | [
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Mbhappy, J.
This suit was begun by A. B. Cupp and others against the First Baptist Church of Nashville, Arkansas, and Pat Murphy, its pastor, to restrain them from erecting a church tabernacle on lots 13, 14 and 15 in 'block 126, Nashville, Arkansas. There was a city ordinance of the city of Nashville Arkansas, reading as follows:
“Be it ordained by the council of the city of Nashville, Arkansas:
“Section I. That it being deemed in the interest of the public safety, health and morals of the city and for the protection of said city that all buildings of whatsoever character to be hereafter erected in said city and any and all alterations of buildings now or hereafter erected by any person or corporation, shall be bruit, altered or changed subject to and only when approved by the city council of said city of Nashville.
“Section II. Any owner or person erecting any buildings or making any alterations or additions to any buildings now or hereafter erected shall, before proceeding with such building, addition, alteration or change of plans of work, apply to the recorder or city clerk for a written permit to erect, alter or change any structure, regardless of material of which such building is composed; provided that any changes or alterations costing less than $100 may be made without such permit.”
The balance of the ordinance merely provides for the arrest and' punishment of persons violating its provisions.
It was alleged that the appellees had long been residents of Nashville and owned their homes on the west and south side of block 126; that the Baptist Church owned and occupied a large and commodious church building in said block facing east on Main Street; that, excepting this church, all the buildings are used exclusively for residential purposes. liiat appellees have built expensive homes in said block with a view to securing comfort and quiet therein. That the Baptist Church and its pastor, Pat Murphy, have purchased lots 13, 14 and 15 in said block with the avowed purpose of erecting thereon an open tabernacle in close proximity to appellees’ residences. That the building material is already on said lots. The tabernacle is to be 120 feet long and 70 feet wide with composition roof, set upon upright posts at intervals around the structure to support thereof. About 20 feet off the west end is to be used as a rostrum and will be boxed. The balance of said structure will be with open woven wire except from the ground to about three feet up will be wainscoting. It was alleged that the erection and operation of said tabernacle would materially interfere with the enjoyment by appellees of their homes; that they would be greatly annoyed and harassed by continuous and successive loud noises during the holding of meetings; that said noises are necessarily incidental to conducting meetings in an open tabernacle in such close proximity to their homes; that there is no parking” space around the tabernacle except the public streets surrounding the block; that a great many people will necessarily congregate at all of said public meetings, and that the stopping and starting of oars on said streets mil create loud and disturbing noises which will disturb the comfort and rest of appellees and their families, and will greatly depreciate the value of their property as homes and will render the occupation of them uncomfortable and the loud talking and speaking and singing, which are necessarily incidental to the holding of said meetings in the tabernacle, will disturb their comfort and quiet to such an extent as to be a nuisance and will cause irreparable damage to appellees in the enjoyment of their homes and in reducing the value of their property; that there is no necessity for the tabernacle at the place where it is to be built, for religious purposes, because the appellants already own a largTe and commodious church house; that it is unnecessary to erect the structure in ■ the locality close to appellees ’ homes because there are ample and more isolated places in Nashville where the tabernacle might -be built. That appellees have endeavored to persuade appellants to select a more isolated location, but they have refused all overtures in that direction; that appellants applied to the city council for permit to build the tabernacle, and that the city council refused the application; that, regardless of this, the appellants were going ahead with the construction of the building. It was further alleged that the appellees had no adequate remedy at law.
Appellants filed answer in which they admitted that they had the building described by appellees under contemplation for religious purposes, but they denied each of the statements of appellees; denied that the structure was to be used for all sorts of public speakings, concerts, shows and entertainments, but alleged that it was to be used only for religious purposes and perhaps a few public functions such as school exercises and other purposes of a dignified educational and social nature. They also said it was not to be used for any entertainments which are not had in other churches of the city, and under no circumstances was it to be used for any kind of exercises or entertainment which any reasonable person could take exceptions to; that it would not be used for other than strictly religious purposes more than two or three times a year, and then usually in the daytime; that they do not tolerate any entertainments or exercises which would not be tolerated by other churches of the city, and that they will not permit any kind of exercises or meetings except such as are dignified, moral and useful; that the object of the structure and contemplated services therein is to further improve the morals and religion of the people of the locality, just as this object is maintained by other churches in Nashville. They denied that they would materially injure appellees in any way. They alleged that the building was neither erected nor occupied and no services of any kind or use thereof had been had, and that the appellees could not in any event be entitled to any relief until the building had been occupied and used for some purpose which the law condemns as a nuisance. The Baptist Church is about a block from the Methodist and Christian churches and all of these churches are in the ■ residence section of the city. There was a decree restraining and enjoining appellants from proceeding with the construction of the tabernacle. This appeal is prosecuted to reverse the decree of the chancery court.
The character of the building, its location and dimensions aré not in dispute. In fact, there is no claim that the building itself will be a nuisance, but the controversy is as to whether the use of it, as contended by appellees will be a nuisance by decreasing the value of appellees’ property or by the annoyance and inconvenience caused by automobiles, loud preaching and singing and disturbances of this kind. A number of witnesses for appellees testified that the tabernacle would practically ruin their homes or would decrease the value of their homes very considerably.
J. S. Hopkins, a witness for appellees, testified that the tabernacle being built would decrease the value of the Cupp, Hutchinson, 'Crutchfield and Rector property; that it would be very unpleasant for appellees during meeting hours. He is the family physician of appellees, and testified that in case of sickness it would be very bad on some of them; that some of them were of a very nervous temperament. He thought it would decrease the value of the Crutchfield home 50 per cent. Did not think he could put up with the continuous fuss and nuisance they would have there during meetings, that the stopping and starting and honking of horns of automobiles used in attending the services of the tabernacle would be annoying. He testified also, however, that the starting and stopping of cars is-incidental to every church in town, and that an automobile would make as much fuss starting and stopping in front of a brick church as it would in front of a tabernacle.
T. A. Hutchinson, one of appellees, owns a home nearly west of the Baptist Church. The Rector estate has property right up against the tabernacle, suitable for residential property. Witness’ home is 75 or 80 feet from the tabernacle, and the Crutchfield home is 20 or 25 feet from the tabernacle. Witness’ home cost $10,000 five years ago. The Baptist Church is a nice, brick 'building and probably seats more people than any church in town; endeavored to get Murphy, the pastor, to build the tabernacle elsewhere, but he would not do it; attended the meeting of council when Murphy asked for permit to build the tabernacle, and Murphy at the time told the kind of entertainment the Baptist Church would indorse, anything which was moral; he mentioned a good many things they would use the building for. Witness objected to the construction of the 'building because there is more noise and confusion around a tabernacle than around a church. People do not reverence a tabernacle like they do a church, and the noise carries much further in the open air than in a church. The tabernacle would destroy the Crutchfield property. Witness testified that four years ago there was a meeting held there between the Baptist Church and Cupp’s residence where they preached two or three weeks, had music and out-of-door services; knows nothing about what the Baptist Church is going to have in the tabernacle except what Mr. Murphy said; understood they would sometime have 3 o’clock services when witness wanted to sleep. The loud noises he complained of referred to the styles of entertainment which Mr. Murphy said the tabernacle would be used for.
J. R. Hill, a real estate dealer, testified that the Cupp house cost $12,500 and was built in 1910. That he was familiar with land values in Nashville, and thought the construction of the tabernacle would impair the value of the property of appellees; thought it would impair the value of the Hutchinson property 50 per cent, and the Cupp property 33 1/3 per cent, and would almost destroy the value of the Rector estate; thought the contemplated use of the tabernacle would be very annoying, but he did not know what the Baptist congregation expected to use 'the tabernacle for.
A. B. Cupp, E. L. Crutchfield, W. A. Beauchamp, D. A. Hutchinson, W. W. Wilson, Barney Thompson and J. W. Bishop all testified to substantially the same facts with reference to the noises and damage as witness T. A. Hutchinson.
A number of witnesses testified for appellants that there would be no damage to the property or to the persons by reason of the building and use of the tabernacle. The evidence also showed that Crutchfield offered to sell a portion of his property to the Baptist Church for the purpose of .erecting a tabernacle which would have been closer to him than the one now building, and did not say anything about any objection or annoyance. The evidence showed that the appellants applied to the city council of Nashville for a permit, and that this permit was denied. It is unnecessary to set out the testimony of all the witnesses. The appellees’ witnesses testified to the noise, and that this would annoy the appellees in their homes and would decrease the value of the property. The witnesses for appellants testified that there would be no annoyance to the appellees and no decrease in the value of the property by reason of the building of the tabernacle.
Appellee’s first contention is that the ordinance is valid, and that the action of the city council in denying the permit ought to be sustained. In other words, the injunction ought to be granted if the council under a valid ordinance did not give a. permit to erect the building.
We think it wholly immaterial in this case whether the ordinance is valid or not, because, if valid, the mere refusal of a permit to erect the building by the city council would not enable private parties to maintain a suit to prevent its erection. It is generally held that a person violating a city ordinance or a State statute cannot be restrained from doing so by the courts, although the ordinance or statute might be valid. If it constitutes a. crime as this ordinance does, then the city could prosecute if the ordinance was valid and punish the person who violated it. The city itself, however, could not maintain a suit for injunction merely for violating an ordinance, but they could only do so provided the erection of the building or its use constituted a nuisance.
“The mere fact that the structures are or will be erected and maintained without the required statutory license does not make them outlaws, to be lawfully assailed and destroyed by any one, or abated at the private suit of any person. Indeed the statute does not declare them to be a nuisance in law. An equity court will not, at the suit of a private party restrain the erection of a building not in fact a nuisance, merely because its erection is forbidden by statute or ordinance.” Whitmore v. Brown, 102 Me. 47, 65 Atl. 516 ; 120 A. S. R. 454 ; Heffner v. N. Y. Taxicab Co., 130 N. Y. S. 710.
“But the mere fact that the proposed-act of the defendants is in violation of the ordinances will not enable the plaintiffs to sustain their bill. A bill in equity cannot ordinarily be sustained for the mere violation of a municipal ordinance. The threatened act o'f violence must amount to a nuisance if done.” Houlton v. Titcomb, 102 Me. 272, 66 Atl. 733, 10 L. R. A. (N. S.) 580 ; Berger v. Smith, 160 N. C. 205, 75 S. E. 1098.
If the structure or the use of it is a nuisance under the law, then a court of equity would have a right to restrain the parties whether the acts were violations of ordinances or statutes or not, and such suit could be maintained by a private person where his property rights were invaded and where the use to which the building was to be put would so interfere with the rights of others by reason of the noise as to constitute’a nuisance, or if the acts complained of decreased the value of the property or materially affected the comfort and convenience of the parties, but simply (because it is illegal or a violation of an ordinance or statute does not justify a court of equity in issuing’ a restraining’ order.
This court has said: “'Something more than the threatened commission of an offense against the law of the land is necessary to call into exercise the injunctive powers of the court. There must be some interference, actual or threatened, ¡with property rights of a pecuniary nature; but when such interferences appear, the jurisdiction of a court of equity arises, and it is not destroyed by the fact that they were accompanied by or are themselves violators of the criminal law.” State v. Vaugham, 81 Ark. 117, 981 S. W. 685, 7 L. R. A. N. S. 899, 118 Am. St. 29, 11 Ann. Cas. 277. So, if the erection and maintenance of a building are, or its use constituted, a nuisance, then it would be wholly immaterial whether the acts were in violation of law or not, so far as a suit by private persons is concerned.
The case of Bickley v. Morgan Utilities Company, Inc., 173 Ark. 1038, 294 S. W. 38, is relied on as supporting the decree in this case. The undisputed testimony in the case referred to showed that the defendants in that case were operating or intending to operate an ice factory. The building there was a 'business building, the manufacture of ice was the business to be engaged in, and the ice factory was located in a strictly residential district, and the evidence in that case also showed that the brick wall of the ice plant was within six feet of the bedroom window of one of the parties and that they left a big window on the side next to his property. There are many facts in the Bickley case which distinguish it from this case. We said in that case: “No definite rule can be given to govern all cases, but each case must depend on the particular circumstances which characterize it, and it is proper to consider the nature of the business, the kind of annoyance, the location, the surroundings, and all the attending circumstances. ’ ’ The law of nuisance is discussed at length in that case, and numbers of authorities reviewed, and it would serve no useful purpose to review them here. ‘ ‘The maxim, ‘Use your own property so as not to injure another,’ is peculiarly applicable in nuisance cases. If one does an act in itself lawful, which yet being done in that place necessarily tends to the damage of another’s property, it is a nuisance, for it is incumbent upon him to find some other place to do that act where it will be less offensive. * * * That is a nuisance which annoys and disturbs one in possession of Ms property rendering its ordinary use or occupation physically uncomfortable for him. For such annoyance and discomfort the courts of law will afford redress by giving damages against the wrongdoer, and when the causes of annoyance and discomfort are continuous, courts of equity will interfere and restrain the nuisance.” Yates v. Mo. Pac. Rd. Co., 168 Ark. 170, 269 S. W. 353, 38 A. L. R. 1434 ; Bickley v. Morgan Utilities Co., Inc., 173 Ark. 1038, 294 S. W. 38.
There are many annoyances in the very nature of things which will not be restrained. The evidence in this case shows without dispute that the tabernacle, when built, will be occupied a very short part of the time, that nothing will be done except those things tolerated by all the churches. Certainly there can be nothing in the noise of automobiles, because the undisputed evidence shows that the entire parking space about where the tabernacle is located is used all the time now, and, as one of the witnesses said, the noises made by the automobiles will not be any greater in stopping and starting at the tabernacle than they will at the church or elsewhere.
The "West Virginia court, after discussing the common law of nuisance and remedies at law, and stating that every one had a right to use his own property and do with it as he pleased, stated that his neighbor has the same right over his own property, and that from this results the rule that it is the duty of one to so use his own property as not to injure another, and the court said: “But this duty must be taken with qualifications, for in the nature of things and of society it is not reasonable that every annoyance should constitute an injury such as the law will remove or prevent. One may therefore make a reasonable use of his right though it may create some annoyance or inconvenience to his neighbor.” Powell v. Bentley, 34 W. Va. 804, 12 S. E. 1087, 12 L. R. A. 53.
In 'discussing the question of nuisance and of a livery stable constituting a nuisance, the Maryland court said: “It is true that a stable in a town is not like a slaughter house or a sty, necessarily and prima facie a nuisance. There must be places in town for keeping horses of people living in them or resorting thither; and if they do not annoy others they are both harmless and useful erections. But, on the contrary, if they are so built or kept or so used as to destroy the comfort of persons owning and occupying adjoining premises and impair their value as places of habitation, stables ■ thereby become nuisances. It cannot be denied that a livery stable in a town adjacent to buildings occupied as private residences is under any circumstances a matter of some inconvenience and annoyance; and must more or less affect the comfort of the occupants as well as diminish the value of the property for the purpose of habitation. But this is equally true of various other erections that might be mentioned which are indispensable and which do and must exist in all towns.” Bank v. Manyon, 87 Md. 68, 39 S. W. 90.
There may be some inconvenience and annoyance about a church or tabernacle in a city or town, and, if so, they would of course more or less on occasions affect the comfort of the occupants and might diminish the value of the property as residence, but certainly all will agree that church buildings and churches are indispensable in cities and towns and they are usually, if not always, in the residence districts. Factories are usually, if not always, built in the business districts. Churches are built usually in the residential districts, and the evidence in this case does not show that there will be any very great annoyance. It is urged that the noise made by automobiles will be very annoying, and that this will decrease the value of the property for residences. But the witness who testified to this admitted that near the place where the tabernacle is to be built, the parking space is already filled with automobiles; they doubtless make all the noise and cause all the inconvenience now that they will when the tabernacle is in use, so that inconvenience from the noise of automobiles is not shown to be any greater than it would 'be without the tabernacle. It is contended, however, that the loud preaching and loud singing will annoy the people. This might be some annoyance occasionally, but since the preaching and singing would be as loud in the church building as in the tabernacle building, we do not think this noise would increase the inconvenience of the persons living close to the tabernacle. It is true noises in the open air might •be heard somewhat further, but the services to be held in the tabernacle will usually be in the summer, especially the preaching and singing complained about, and in the summer time the windows of the church are all open and the singing and preaching can be heard anyway. Besides that, we think that churches and tabernacles like the one proposed to be constructed here, should be constructed, occupied and used, even if at the time of their use there is some inconvenience and annoyance. It is wholly different from an ice factory or any other factory. Every one knows that the churches are (built in cities and towns near residences, and they know that there may be some inconvenience and annoyance by the use of them,. The witnesses for appellees testified that they did not know anything about what use will be made of the structure when completed except what Mr. Murphy said, and. according to his testimony there will be no very great inconvenience, but this suit is to restrain the erection of the building, and no one claims that the building itself would be a nuisance or would damage their property or inconvenience them, therefore, if the noise and inconvenience will be such as to annoy the people, that use of the tabernacle might be restrained but certainly not the erection of the building. In other words, if the tabernacle was used for entertainments and shows and things which would be immoral and annoy the inhabitants or decrease the value of their property, this use of it might become a nuisance, and, if it does it may then be re strained, but there is no evidence in this case that anything of that kind will be done except the witnesses testified that they understood from Mr. Murphy that they would have basket ball games and other entertainments of that kind, but the evidence shows that they do not contemplate anything of the kind.
“Where the claim to relief is based upon the use which is to be made of a lawful erection, the court will ordinarily refuse to enjoin the construction or completion of the erection ■ but in such case the defendant, if he proceeds, does so at his peril and is liable to an injunction or an action of damages if such use results in a nuisance. If a building of itself will be a nuisance, its erection may of course be enjoined.” 21 Oyc. 708.
There is in this case, as we have said, no claim that the building itself will be a nuisance, but it is the use of the building complained about.
The rule is well settled that no injunction will be issued in advance of the structure unless it be certain that the same will constitute a nuisance. The Texas court said: “That a church is not a nuisance per se would seem to be a self-evident proposition. For that reason the trial court did not err in denying the temporary writ. * * * a church building is as lawful as any other structure. It is not only lawful but essential to our Christian -.civilization, and will be given the same protection of the law as is afforded the residence for the family or the place for exercising the pursuit of one’s lawful business. It is not, however, above the law. Like any other edifice or structure, however lawful in purpose and use ordinarily, it may become unlawful. The place of its location and the time and manner of .its use may be such under the circumstances as to constitute that interference with the rights of others as to become in law a nuisance abatable as such. Whether such a condition has arisen is of course a question of fact, triable as any other fact where witnesses may be heard and a verdict had. We are not "called upon to express any views as to the applicability of the common law of nuisances to a case like this. The principles themselves are as virile as ever, but their application in a given case are necessarily affected by our changed conditions due to a complex and advanced civilization. That use which will be enjoined as a nuisance is not every hurt which is inflicted upon another, but must be an unreasonable one under all the circumstances.” Waggoner v. Floral Heights Baptist Church, 116 Texas 187, 288 S. W. 129 ; Spencer Chapel M. E. Church v. Brogan, 104 Okla. 123, 231 Pac. R. 1074.
It is common knowledge that we have community buildings all over the State, buildings near residences where educational and social gatherings are had, and there is necessarily some annoyance and inconvenience from the use of these buildings. As we have already said, churches in cities and towns are indispensable. Very few people, if any at all, would be willing to have them put outside of the residential districts in cities and towns, and the annoyance and inconvenience from living close to a church where services are had is not such as to entitle one to an injunction unless, after the erection of the building, the use of it is such as to become a nuisance.
“The erection of a building to be used for a certain business will not be restrained on the ground of anticipating nuisance therefrom where it is not necessarily a nuisance but may become one under some circumstances. The anticipated injury being contingent and possible only, the court will refrain from interfering. ” Joyce on Nuisances, p. 226. Noise, in order to entitle one to an injunction, must be such as to produce a substantial injury, and the annoyance must be such as to injure or annoy a normal person. Of course, it may 'be a nuisance merely by decreasing the value of the property, but, from the evidence in this case it appears that all the annoyance and injury is anticipated and may never occur.
We have reached the conclusion that the evidence is insufficient to entitle appellees to an injunction, and the decree is therefore reversed, and the cause remanded with directions to dismiss the complaint. | [
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Kirby, J.,
(after stating the facts). Appellant insists that the court erred in giving said instruction No. 3, but concedes that the law was pro-perly declared in re-quested instructions Nos. 1 and-2 given by the court applying the principles of law to the case made.
In Mutual Benefit & Health Assn. v. Tilley, 176 Ark. 528, 3 S. W. (2d) 320, the court, in an action by the administrator of the insured to recover -on an accident policy for the death of the insured, who was shot by his wife, the beneficiary under the policy, where the jury found the killing was intentional but not justified, held that the killing was “accidental” within the meaning of the policy, saying: “Appellant insists that the killing, while intentional, was-justified, and insists that there can be no. recovery, and the following cases are cited in support of that contention (citing cases).
‘ ‘ In reply to this contention, it may be said that the jury has found, under the instructions referred to above, that the killing was intentional, but not justified. This béing true, the killing was ‘accidental’ within the meaning of the language employed in the policy sued on. ’ ’
The instruction No. 3 complained of is in no wise contradictory of the instructions that correctly declared the law as applicable to the proved facts, and is not, therefore, erroneous, and could not have been prejudicial, since it was not an incorrect definition of the term ‘ ‘ accidental,” and in any event the jury was not limited to the term as defined therein, the court saying: “If you find that the deceased, Ony Ware,"came to his death as a result of accidental means as defined to yon,” did not limit the definition to the particular instruction, having defined “accidental” also in the other correct instructions. It did not leave out any element necessary to he shown before a judgment could be rendered against the appellant not, as already said, limiting the definition to the particular instruction. The .jury could well have found from the testimony that Newman, having become angered at the conduct of the insured, aimed himself, continuing to make threats of getting even or of destroying him, sought the deceased, invited him into a small room away from the presence of others, assaulted and finally killed him without any justification; or that Newman provoked deceased into assaulting him, voluntarily engaged in the fight and without any effort to retire or withdraw therefrom' shot and killed the deceased without the right to do so in self-defense.
Appellant’s contention that the court erred in the admission of the testimony, the answer of appellee, stating she had two children and was employed in the State Educational Department, could not have been prejudicial, even if erroneous. There was no question in the case about what amount the recovery should be, if a recovery was had. It could not have resulted in any event in increasing the amount of the recovery, which was limited by the amount of the policy. The chief witness for appellant had stated in his testimony that he had a family of nine people dependent upon him, and apparently as some mitigation for his becoming enraged at the conduct of his partner and accentuated evidently the feeling aroused against him because of his conduct complained of, and the statement could be regarded as invited error, even if it were held to be error.
The alleged improper argument of counsel for appellee complained of is without merit. It was an ex pression only of surprise at the manner of appellant’s conduct of the trial of the case., but his opinion thereof, without reciting any facts or incidents, of the trial that caused such opinion to' be held and expressed, could not have been erroneous. Counsel made no statement of any facts outside the record, nor of any particular facts as shown by the record upon which his expression of surprise was based or founded, and the jury could not have been impressed with any other view than that it was but an expression of his opinion on the case and the manner of developing it and was entitled to weight only as it was warranted by the facts in the trial. It was but an argument and not outside the right of counsel in making an argument of the case to thé jury, and no error was committed in the making of such statement.
Upon a careful consideration, of the whole case, we do not find'any prejudicial error in the record, and the judgment is accordingly affirmed. | [
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Smith, J.
On February 10, 1928, Mrs. Fannie R. Partridge filed her fifth and final settlement as guardian of her daughter, Sadie Partridge. After including numerous charges and credits the settlement showed the “Present amount now due by guardian to her ward, value of estate, as per this report, $12,542.74. ’ ’ Included in the assets was a note, secured by a first mortgage on land, in the sum of $5,099.38, and, after taking credit therefor, a net balance of $7,443.36 was shown to be due the ward.
Attached to the settlement, as a part of it, was the following writing: “I, -Sadie Partridge, former ward of my mother, Mrs. Fannie It. Partridge, have this day received of Mrs. Partridge one note, of the value of $5,099.38, which is secured by first mortgage on the Kendrick lands, or a part thereof, signed by Mrs. Louise Pope, which I accept and credit my guardian with said amount as shown in her report. I have also checked over all items listed in her report. I find them correct, and I join in and with her in asking the approval of said report by this court. (Signed) Sadie Partridge.”
This settlement was filed in the office of the clerk of the probate court on February 10, 1928, and on March 26, 1928, the judge of the probate court indorsed upon it the following notation: “Passed for publication.” Publication of notice of the filing of the settlement was duly made, and on April 23, 1928, the judge indorsed thereon the notation: “Examined and approved April 23, 1928. (Signed) Homer Folbre, Judge.”
Without further order or action by the probate court, the' clerk thereof entered an order containing the recital that the 'guardian had -filed final settlement account ‘ ‘ showing all funds accounted for, * * * and at the same time is filed the final receipt of the minor, iSadie Partridge, showing all funds as having been turned over to her by her guardian, and same is hereby approved and the guardian is discharged from further liability. ’ ’
It is obvious that this order was a misprision on the part of the -clerk, resulting from a very superficial reading of the guardian’s settlement, as the settlement did not disclose that a final receipt had been filed showing that all funds had been turned over to the ward, but recited only the ward’s receipt for the note, and expressly recited that there was a balance due the ward of $7,443.36.
The term of the court at which this order was entered expired, and on February 11, 1929, when the term of office of the judge who had made the order had also expired, a mmc pro tunc order was entered by his successor in the office of probate judge. This order reads as follows:
‘ ‘ On this the 11th day of February, 1929, this matter coming on to be heard upon the petition off 'Sadie Partridge, a minor, and it appearing to the court that a judgment on the final report was entered by the clerk, and the said judgment was in error as the said judgment states that the final receipt of the minor, Sadie Partridge, all funds as having been turned over to her ¡by the guardian, the fact being and the fifth and final report showing that the ward accepted the note of Mrs. Louise Pope in the amount of $4,099.38, leaving due and owing her (by the guardian the sum of $7,443.36.
“It is ordered that this judgment be entered superseding and setting* aside the judgment entered by the clerk, and it is further ordered that there was due and owing to the minor from the guardian as of February 9, 1928, the sum of $7,443.36.
“Now this order is entered mmc pro tunc, or now for then. ’ ’
On October 26, 1929, R. M. Boon, who was a surety on the bond of the guardian, .filed a petition for a writ of certiorari, in which it was' prayed that the nunc pro tunc order be canceled, and upon hearing the petition the circuit court granted the relief prayed and that order was quashed, and this appeal is from that judgment.
The action of the circuit court quashing the nunc pro tunc order is defended upon the grounds that it was made without notice to petitioner, the surety on the bond; that the judgment of the court of April 23, 1928,, became final on the lapse of the term and could not thereafter be modified or vacated; and that the mmc pro tunc order did not speak the truth as to what was actually done by the court on April 23, 1928, but substituted a judgment entirely different from that actually rendered.
We do not think any of these contentions can be sustained. No notice was given the surety that the nunc pro tunc order would foe applied for; fout none was required. Notice was given to the 'guardian and her attorney, and they appear to have conceded .the error which the nunc pro tunc order cured. This was fout a step' in the settlement of this guardianship, df which notice to the surety was not required. 2-8 C. J., chapter Guardian and Ward, § 498, page 1294; Beakley v. Cunningham, 112 Ark. 71, 165 S. W. 259 ; Jones v. Graham, 36 Ark. 383 ; Crowley v. Mellon, 52 Ark. 1, 11 S. W. 876.
The nunc pro time order was made within a year of the date of the order which it corrected -and at a time when an appeal therefrom might have (been prosecuted, and.had that ¡been necessary, and no notice to the surety o-f the appeal would have been required. Section 2258, C. & M. Digest.
It is true the term of court at which the original order was entered had expired when the nunc pro tunc order was made, fout § 6290, O. & M. Digest confers upon the court in which a final order has (been made power, after the expiration of the term, to vacate such order for misprision of the clerk—this being among the causes there named for the exercise of this power.
The case of Butt v. Saxon, 181 Ark. 81, 25 S. W. (2d) 8, is in point. In that case a sale of land had been made to Saxon, which was erroneously reported to have been made to Dickinson, and the clerk of the chancery court wrote up an order to that effect, which order was corrected at a subsequent term of the court to reflect that Saxon, and not Dickinson, was the purchaser, and it was held that § 6290, O. & M. Digest, conferred that power upon the court.
It is true, as many cases have held, that nunc pro tunc orders cannot foe used to correct errors appearing in previous orders, and that their only purpose is to correctly reflect and record the action which was taken by the court, and -not to make it recite what it did not recite but ought to have recited. This rule, so well established that no citation of authority is required, did not prevent the making of the order which was quashed upon certiorari. The original order of the probate court was to approve the settlement as filed, 'but the entry in the records of the probate court as made by the clerk thereof did not correctly reflect that order. The order entered found no authority in the judgment rendered, which merely approved the settlement as filed. The order of the court did not purport to find that the settlement recited that the guardian had complied with § 5069, C. & M. Digest, by exhibiting the receipt of the ward .for all the property. On the contrary, the settlement which the court approved expressly recited that a portion only of the assets had been paid over and that a balance remained unpaid. It was therefore a misprision on the part of the clerk to enter an order which could have been written only by one ignorant of the recitals which the settlement contained and which the court had approved. No authority whatever existed for the- order which the clerk entered, as it did not conform to the order which the court made. It was therefore proper to correct his erroneous order by an order entered nunc pro tunc, and no notice thereof to the surety on the guardian’s bond was required. He became a party to such orders as the court might make in settling the guardian’s accounts when he signed the bond, as surety, required by the statute to enable the guardian to1 enter upon the discharge of her duties as such. It has never been deemed necessary,, in acting upon the settlements of guardians, to require the presence of the sureties upon the guardian’s bond, by service of notice upon them that such settlements are about to be acted upon. Planters’ Mutual Ins. Ass’n v. Harris, 96 Ark. 229, 131 S. W. 949.
The testimony of Judge Folbre and that of the deputy clerk who actually entered of record the original order was heard by the court below, and has been carefully examined by us, and, without setting out this testimony, we announce our conclusion to' be that nothing appears in this testimony to indicate that Judge Folbre made any order except that hereinabove quoted—that of approving the settlement as filed. 'This order of Judge Folbre’s is not susceptible of the construction which the order, as entered of record by the clerk, placed upon it, and the order as entered should therefore be corrected to conform to the order made, and this the nunc pro tunc order did.
The judgment of the court below, quashing the nunc pro tunc order, will therefore be reversed, and the petition for certiorari will be dismissed, and this judgment will be certified back to the probate court. | [
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Richard B. Adkisson, Chief Justice.
After a trial by jury, appellant, Bobby Lynn Hilton, was convicted of aggravated robbery and sentenced as a habitual offender to fifty years in the Arkansas Department of Correction. On appeal, we affirm.
At approximately 10:00 p.m. on March 25, 1979, appellant walked into a 7-11 store on 65th Street in Little Rock. He pulled out a gun and told the clerk to give him all the money in the cash register, but before she could do so two cars pulled up at the gas pumps. He hid his gun while she waited on the two customers; after they left he again demanded all the money in the cash register. She gave it to him and he left. He was in the store a total time of about ten minutes.
The clerk described appellant to the police as being tall and slim with dirty blonde hair and a large cobra snake tattooed on his left forearm. At trial both she and a Little Rock police officer testified that she was later able to pick him out of a lineup at the Little Rock Police Department.
Appellant argues that the trial court erred in allowing both the police officer and the clerk to testify as to her identification of appellant at the lineup, particularly since the officer testified before the clerk did. Appellant likens the situation to that of an attempt to bolster testimony by a prior consistent statement and alleges that his attorney’s trial strategy was hurt by the fact that the officer testified first.
These contentions were recently considered and rejected in Martin v. State, 272 Ark. 376, 614 S.W.2d 512 (1981). In that case we held that under Rule 801 (d) (1) (iii), Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979) a police officer could properly testify as to the existence and circumstances of an extraj udicial identification by witnesses if there is no defect in the identification procedure used, and if the person making the extrajudicial identification is present at trial and subject to cross-examination, recall, or is subject to being called as a hostile witness by the defense. Here, not only was the clerk present at trial, but she also testified and was cross-examined by the defense as to the extrajudicial identification.
Affirmed. | [
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Robert H. Dudley, Justice.
In 1977 the City of Mountain Pine adopted a comprehensive zoning ordinance. A tract of appellants’ land was zoned C-l which is defined in the ordinance as an area of intensive commercial use and the retail core of the city. The description of permitted uses for the classification does not include mobile homes. Appellants operate a laundromat, a grocery store, a drive-in restaurant and a filling station on the land. They submitted requests for a variance to the zoning committee and the city council so that they could place a mobile home on the property for use as a residence with one room to be used as an office. The requests were denied but, even so, appellants moved a mobile home onto the property.
The City of Mountain Pine brought this action against appellants seeking a mandatory injunction to compel removal of the mobile home on the basis that it is an incompatible use of a district zoned C-l. It is from an order of the trial court granting the injunction that appellants bring this appeal. Jurisdiction is in this Court pursuant to Rules 29 (1) (a), (c) and (f). We affirm.
Appellants first argue that the mobile home is incidental and accessory to commercial uses. The ordinance defines an accessory use as “A use which is customarily incidental to the principal use, as a garage for the storage of an automobile by occupant of a residence.” Although appellants argue that their use of the trailer as a residence and office is accessory to the business they operate, they offered no proof at trial that this use is customary or even that it is not unique or rare. See e.g., County of Lake v. LaSalle National Bank, 76 Ill. App. 3d 179, 395 N.E.2d 392 (1970). Therefore, the findings of the chancellor are not clearly against the preponderance of the evidence, and we affirm on this point. ARCP Rule 52; City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981).
Second, appellants argue that the ordinance in question is unreasonable and unconstitutional as applied to their property. They rely on City of Little Rock v. Hunter, 216 Ark. 916, 228 S.W.2d 58 (1950), for the proposition that “as to particular lots, a court may declare a zoning ordinance void upon a proper showing that its application is arbitrary, unreasonable and discriminatory.” At trial, not only did appellants fail to offer any proof as to the unreasonableness of the ordinance but they admitted that the city council did not act in an arbitrary and capricious manner in denying their request for a variance. We have consistently held that we will not consider issues raised for the first time on appeal. See, e.g., Sun Gas Liquids Co. v. Helena National Bank, 276 Ark. 173, 633 S.W.2d 38 (1982). Therefore we do not reach appellants’ second point.
The chancellor specifically found that under the terms of the zoning ordinance appellants’ property is zoned for commercial purposes, no mobile homes are permitted and the city council did not act arbitrarily in refusing to grant a variance to appellants.
Appellants argue that the chancellor’s interpretation of the zoning ordinance as excluding a mobile home on their property was erroneous and unreasonable. The argument, as it is made, assumes that the ordinance is not an exclusive zoning ordinance. That is, it assumed that zoned districts are not established solely for named uses, or groups of uses, to the exclusion of all others. In addition, it assumes that the ordinance is a cumulative zoning ordinance. Such an ordinance establishes a hierarchy of use districts. The single family dwelling is the highest use of the land and industrial or unrestricted is the lowest. See 2 R. Anderson, American Law of Zoning, §§ 9.14, 9.15 (2d ed. 1976). According to appellants’ argument the higher permitted uses, such as residential, are allowable as a matter of law in lower use areas, such as commercial, unless specifically prohibited. Appellants contend that since residences are not specifically prohibited from the lower use commercial district, they, as a matter of right, can use the commercial zone for residential use. The argument is fallacious. We do. not need to decide whether the ordinance is exclusive or cumulative for the result is the same. Clearly, if the ordinance is exclusive, the zoned district is for business use to the exclusion of residential use. The same result is reached even if we assume the ordinance is cumulative and higher uses are allowable in lower use areas under some circumstances. See Katobimar Realty Co. v. Webster, 20 N.J. 114, 118 A.2d 824 (1955). This is because “[T]here is no rule of law, statutory or constitutional, which ordains that any use has an exalted position in a zoning scheme entitling it to move everywhere as a matter of right. Kozesnik v. Montgomery Township, 24 N.J. 154, 131 A.2d 1,9 (1957). Thus, the higher use is not allowable in the lower use area as a matter of right. The question in every case is one of reasonableness under the circumstances. Kozesnik, 131 A.2d at 9; Lamb v. City of Monroe, 358 Mich. 136, 99 N.W.2d 566 (1959). The appellants did not demonstrate that the action of the city was unreasonable in refusing to allow the use of a mobile home as a residence in the core of the central business district. The interpretation of the ordinance by the chancellor was not erroneous.
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H. Vann Smith, Special Chief Justice.
This is an appeal from the Circuit Court of Chicot County involving the speedy trial rule, A.R.Cr.P. Rule 28.
On November 20, 1984, the appellant was charged with DWI and refusal to take a breathalyzer test in the Municipal Court of Lake Village, Arkansas. Appellant was tried and convicted of both charges on December 5,1984, and subsequently filed an Affidavit of Appeal, Appeal Bond, and the transcript in the Circuit Court of Chicot County on December 14, 1984.
On March 3,1986, the Circuit Court set the trial for June 17, 1986. Appellant filed a Motion to Dismiss on June 4, 1986, asserting a violation of the speedy trial rule in that more than 18 months had passed from the arrest to the June 17,1986, trial date. It should be noted that the 18-month time period has been changed to 12 months pursuant to the 198 7 revisions, but that this case is subject to the previous rule. The trial court heard oral arguments on June 10, 1986, and took the motion under advisement until June 13, 1986.
On that date, the court held that the speedy trial rule began running from the date the appeal was perfected, December 14, 1984, and without any excluded periods pursuant to Rule 28.3 of the Rules of Criminal Procedure, there would have been an absolute bar for prosecution after June 14,1986. The Court found that the three days it held the motion under submission were excludable under Rule 28.3(a) and that the Motion to Dismiss should be denied.
On June 17,1986, the case was called for trial, but appellant failed to appear. Appellant’s attorney was in attendance and stood on the motion to dismiss. On August 25, 1986, the trial judge filed his findings of fact and conclusions of law, from which this appeal resulted.
For the reasons stated below, we affirm the trial court’s decision.
The initial issue is whether or not the appeal was perfected from municipal court to circuit court. We find it was.
Rule 9, Inferior Court Rules, controls appeals from an inferior court to circuit court. Rule 9(b) states that appeals from an inferior court to the circuit court are taken by filing a record of the inferior court proceeding in circuit court within 30 days of the entry of judgment.
In this case, the appellant filed an Affidavit for Appeal, Appeal Bond, and caused the transcript to be filed in the circuit court on December 14, 1984. A notice of appeal to circuit court was never filed by the appellant. However, we find that such a filing is not necessary to perfect the appeal from municipal court to circuit court. As long as the record of the inferior court proceeding was filed with the circuit clerk within 30 days of the entry of the judgment, the appeal is perfected.
The second issue raised concerns the application of the speedy trial rule. Appellant was arrested for DWI and refusal to take the breathalyzer on November 20, 1984, and was found guilty in municipal court on December 5, 1984. His appeal was perfected in the circuit court on December 14, 1984.
Appellant contends that the speedy trial rule, Rule 28, should begin running on the date of the arrest, November 20, 1984, rather than the date the appeal was perfected to circuit court. Rule 28.2(a) states:
“The time for trial shall commence running, without demand by the defendant, from the following dates:
(a) from the date the charge is filed, except that if prior to that time the defendant has been continuously held in custody or on bail or lawfully at liberty to answer for the same offense or an offense based on the same conduct or arising from the same criminal episode, then the time for trial shall commence running from the date of arrest.”
The Arkansas Court of Appeals in Shaw v. State, 18 Ark. App. 243, 712 S.W.2d 338 (1986) has considered a factual situation similar to the present case. In Shaw, the Appellant was issued a traffic citation on July 17, 1983, convicted in municipal court on August 4,1983, and appealed to circuit court on August 17,1983. The appellate court held that the time within which the defendant must be brought to trial after appeal of a misdemeanor conviction begins running under Rule 28.1 (c) and 28.2 on the day a case is appealed to circuit court.
Even though Rule 28 does not specifically address appeals from municipal court, we agree with the holding in Shaw and find that upon an appeal of a municipal court decision to circuit court, the speedy trial rule begins to run from the day the appeal is filed in circuit court. Accordingly, the application of the speedy trial rule commences on December 14, 1984.
The appellant next argued that the three days the trial court held the Motion to Dismiss under advisement should not be excludable under Rule 28.3.
Rule 28.3(a) states:
“The following periods shall be excluded in computing the time for trial; (2) . . . hearings on pretrial motions.”
This court in Nelson v. State, 297 Ark. 58, 759 S.W.2d 215 (1988), held that the period of time a trial judge takes a motion to dismiss under advisement is excludable under Rule 28.3(a). Therefore, the three days in which the appellant’s Motion to Dismiss was under submission to the trial court was excludable.
Affirmed.
Holt, C.J., not participating; Purtle, J., dissents. | [
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David Newbern, Justice.
The appellant, Amaechi Igwe, was tried for possession of heroin with intent to deliver and possession of drug paraphernalia. He waived his right to a trial by jury and was tried and convicted by a circuit judge. He appeals and argues only that the evidence was insufficient to show he possessed the heroin with the intent to deliver it. The State contends we should not consider the issue because Mr. Igwe’s counsel failed to renew his motion for a directed verdict at the close of the evidence. We hold that, in a trial by the court without a jury, it is unnecessary to raise the question of sufficiency of the evidence by motion at the close of the trial to preserve the issue for appeal. We have considered the evidence which was presented to the Circuit Court, and we hold it was sufficient to support the conviction.
1. Sufficiency of the evidence
Police officers arrested several persons at a residence in Little Rock. One of those arrested cooperated in a plan to have Igwe come to the residence where he might also be arrested. An officer testified “a phone call was made” and Igwe showed up some 20 minutes later with a “paper” containing powder and a crack pipe. No one testified to what was said in the phone conversation which apparently led to Igwe’s subsequent arrival.
The powder confiscated from Igwe was tested and found to weigh 1.175 grams with a pure heroin content weighing .446 grams. According to Ark. Code Ann. § 5-64-401 (d) (Supp. 1991) possession of more than 100 milligrams (.100 grams) of heroin creates a rebuttable presumption that it is possessed with intent to deliver. It was thus up to Mr. Igwe to present evidence to rebut the presumption. The only evidence he presented bearing on the issue was his own testimony that he was a drug user, carried the heroin for his own use, and had come to the residence where he was arrested because he had been informed he could obtain cocaine there.
The general rule with respect to sufficiency of the evidence is:
The evidence to support a conviction, whether direct or circumstantial, must be of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. Smith v. State, 308 Ark. 390, 824 S.W.2d 838 (1992). We will affirm the verdict of the trial court, if it is supported by substantial evidence, and circumstantial evidence may constitute substantial evidence. Hill v. State, 299 Ark. 327, 773 S.W.2d 424 (1989). To be sufficient to sustain a conviction, the circumstantial evidence must exclude every other reasonable hypothesis consistent with innocence. Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992).
Lukach v. State, 310 Ark. 38, 834 S.W.2d 642 (1992).
In determining whether there is substantial evidence, the court reviews the evidence in the light most favorable to the appellee. Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1977).
While Igwe argues that the drugs fond in the search were for his personal consumption, the Trial Court clearly did not believe him. The question was for the fact finder, in this case the Trial Court, to resolve.
2. Directed verdict motion
In Greer v. State, 310 Ark. 522, 837 S.W.2d 884 (1992), we wrote:
Appellant’s argument is a challenge to the sufficiency of the evidence, and, since appellant did not move for a directed verdict at the close of all the evidence, we do not address the issue even though this was a bench trial. See Collins v. State, 308 Ark. 536, 826 S.W.2d 231 (1992).
The Collins case was an appeal from judgment which resulted from a jury trial. Collins had failed to renew a motion for a directed verdict at the close of all evidence. We cited Ark. R. Crim. P. 36.21(b) which provides:
When there has been a trial by jury, the failure of a defendant to move for a directed verdict at the conclusion of the evidence presented by the prosecution and at the close of the case because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.
We noted that although Collins characterized his trial counsel’s omission as a failure to move for directed verdict “at the end of the State’s case,” both the State and the defense rested after presentation of the State’s case, and no motion was made. Thus we concluded that counsel failed to question sufficiency of the evidence at the close of all the evidence as well and pointed out that the rule is firmly established that we do not consider challenges to the sufficiency of the evidence when defendants do not comply with Rule 36.21.
In the Greer case we obviously realized we were dealing with a bench trial rather than a jury trial, but we said the motion was required despite that fact without spelling out our reasons.
Other than in the Greer case, we have not ruled on this question when construing the Rules of Criminal Procedure, but we have the identical provision in our Rules of Civil Procedure 50(e). We have held that subsection (e) does not apply to a non-jury trial. Sipes v. Monroe, 287 Ark. 244, 697 S.W.2d 905 (1985); Bass v. Roller, 276 Ark. 93, 632 S.W.2d 410 (1982). In the Bass case the appellees argued that the appellants waived an argument for additional damages because Rule 50(e) required that a motion for new trial based upon insufficiency of the evidence is waived unless it is preserved through a motion at the close of all the evidence or in a motion for new trial. The Rule, which has since been amended to omit reference to the motion for new trial and judgment notwithstanding the verdict, provided:
When there has been a trial by a jury, the failure of a party to file a motion for directed verdict at the conclusion of all the evidence, or a motion for judgment notwithstanding the verdict, or a motion for new trial because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.
It was the first time we were called upon to decide whether Rule 50(e) applied to a non-jury trial. We concluded the Rule meant exactly what it said and noted that prior to the adoption of the Rule there was a requirement that the matters stated in Rule 50(e) applied both to a jury and non-jury trial. We held that, by specifically stating that it applied to a jury trial, the Rule by implication excluded applicability to cases tried without a jury.
The issue we consider here was not argued by the parties in the Greer case. Any reasons we may have had for applying the requirement of a motion for directed verdict at the close of a criminal bench trial are easily overcome when we consider the clear wording of the Rule limiting the requirement to jury trials and our assumption that the main purpose of a judge trying a case without a jury is to determine the guilt or innocence of the accused with the sufficiency of the evidence as the point of the trial.
We find no authority for applying the requirement of Rule 36.21 in a non-jury situation. Our Court of Appeals has considered the matter on several occasions, and has held that the Rule does not require the motion in a non-jury trial. Hattison v. State, 36 Ark. App. 128, 819 S.W.2d 298 (1991); Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1991); Smith v. State, 30 Ark. App. 111, 783 S.W.2d 72 (1990); and Doby v. State, 28 Ark. App. 23, 770 S.W.2d 666 (1989).
We must overrule our decision in the Greer case to the extent it required a criminal defendant in a non-jury trial to move for a directed verdict at the conclusion of the evidence to preserve the issue of the sufficiency of the evidence on appeal.
Affirmed. | [
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Humphreys, J.
This suit was brought on the 25th day of January, 1929, by appellants against appellee to cancel an administrator’s deed to appellee conveying to her the following described lands in Columbia County, Arkansas, to-wit: Southeast quarter of northwest quarter, section 25, township 17 south, range 23 west; and also the following described tract, to-wit: Beginning at the northeast corner of the southwest quarter of northwest quarter section 25, township 17 south, range 23 west, running west 160 yards; thence south 440 yards; thence east 160 yards; thence north 440 yards to the point of beginning, all in section 25, township 17 south, range 23 west; and to quiet their title thereto as against appellee, alleging that they owned the land by inheritance, and said deed constituted a cloud upon their title.
An answer was filed by appellee admitting appellant’s ownership of the land by inheritance, but alleging that she acquired title thereto by purchase at an administrator’s sale thereof against appellants’ intestate, from whom they inherited same, to pay a claim against his estate. The facts in the main are undisputed and are as follows:
Etta Green is the widow and the other appellants are the children of Elmond Green, who died intestate in the year 1921, at his known place of residence in Lafayette County, the owner of said real estate. He had resided in Lafayette County for many years with his family prior to his death, never having resided in Columbia County after his boyhood. During most of the time he lived upon lands in Lafayette County belonging to Henry B. Lester, appellee’s husband. About five years after the death of-Elmond Green, Henry Lester transferred a claim or an account for rent against Elmond Green, deceased, to his wife, the appellee herein. Appellee filed an application for the appointment of W. B. Stevens as administrator of the estate of Elmond Green, deceased, and filed an affidavit with the clerk of the probate court of Columbia County to the effect that the account for rent was due Henry Lester by Elmond Green at the time of his death. Appellee and her husband, Henry Lester, signed the bond of ~W. B. Stevens and letters of administration upon the estate of Elmond Green were issued to him. Appellee then filed a claim with said administrator for the rent which had been assigned or transferred to her by her husband, and the claim was allowed by the administrator. A petition was then filed for an order of sale for the lands in question, and they were ordered sold by the probate court of Columbia County in March, 1928, without any notice whatever to appellants, and at the sale thereof appellee purchased the lands and obtained the deed therefor which is sought to be canceled.
Under the undisputed facts stated above, the only court authorized to issue letters of administration on the estate of Elmond Green, deceased, was the probate court in Lafayette County, as the intestate resided in that county at the time of his death. Had an appeal been prosecuted from the 'probate judgment of Columbia County appointing the administrator, the judgment would have been set aside as § 5 of Crawford & Moses’ Digest concerning the appointment of administrators is mandatory. Upon collateral attack, however, the judgment and order of sale cannot be set aside as the presumption must be indulged that the probate court made the necessary findings to give it jurisdiction. There is nothing on the face of the judgment or order of sale showing to the contrary. Appellants’ collateral attack upon the judgment, order of sale and deed on the ground that the judgment was void ab initio can not therefore be sustained. The decree, however, should have been canceled upon another ground, for the undisputed facts reflect that a fraud was necessarily perpetrated upon the court in the procurement of the judgment and order of sale by appellee. Fraud vitiates everything. According to the undisputed facts in' the instant case, appellee knew that Elmond Green resided in Lafayette County at the time of his death. She did not take an assignment of the account for rent until five years after Elmond Green’s death. She did not procure an administration on Elmond Green’s estate until two years thereafter, or about seven years after his death. She- must have made it appear to the probate court of Columbia County that Elmond Green was a resident of Columbia County at the time of his death, else the court would not have appointed an administrator and made an order of sale in Columbia County. Another potent fact is that she gave no notice of the proceedings for the application of an administrator to ap pellants, and did not notify them that she was about to sell their land under administration proceedings..
Appellee attempts to sustain the judgment, order of sale and deed under act number 263 of the Acts of 1919 of the Legislature. ('Crawford & Moses’ Digest, § 181). The act is not applicable to the instant case because the findings of the court did not meet the requirements of the act.
The judgment is reversed, and the cause remanded with directions to the chancery court to cancel the deed and to remove same as a cloud on the title of appellants to said land.
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Conley Byrd, Justice.
To reverse his conviction for first degree murder allegedly committed in the perpetration of a robbery, appellant Earnest Dean Murphy contends:
“I. The trial court erred in permitting the State to introduce that portion of the defendant’s statement which implicated him as a participant in another crime.
II. The trial court erred in permitting the sons of the deceased to testify, and in failing to strike their testimony and admonish the jury to disregard it.
III. The trial court erred in failing to direct a verdict for the defendant.-
IV. There is no substantial evidence to support the verdict.”
The record shows that appellant and several other young people, while swimming at Horseshoe Lake in Pulaski County, met David Hardwick, the deceased, who had run out of gas in his pickup truck. One of the members of the swimming party took Hardwick to get some gas. Thereafter, Hardwick, appellant and a co-defendant returned to the lake where they drank some intoxicants. While there appellant' admits that he struck Hardwick; that he took Hardwick’s money, his billfold and truck; and that he threw Hardwick’s body into the lake. After taking the truck to Hughes, Arkansas, appellant and his co-defendant returned and disposed of the truck by running it into the Arkansas River. Thereafter they took a motorcycle and returned to Hughes where they were apprehended.
Testimony on behalf of the State showed that the decedent’s body had a one by one half inch abrasion under the right eye and a blood alcohol content of 0.27% by volume. The Assistant State Medical Examiner stated that death was caused by drowning. When the body was found floating in the lake, the right front pocket in decedent’s trousers was turned inside out and his wallet was missing. Decedent’s pickup truck was later found in the Arkansas River.
POINT .1. Appellant here contends that the trial court committed error in permitting the State to introduce that portion of his confession that implicated him in the crimes of grand larceny and the possession of stolen property.
The confession after stating the events that occurred at the lake, narrated how appellant and his co-défendant took the truck to Hughes and returned on a Tuesday and disposed of the truck to get rid of it. The confession then stated:
“. . . Tuesday night we and looked for a motorcycle to leave on because it would be better on gas and Betty knew a guy that had one that he had stole and redid everything on it and we took it and went back to Hughes the same night. . . .”
Most authorities concede that the action of an accused in fleeing from the scene of a crime is a circumstance to be considered with other evidence in determining probable guilt, Rowe v. State, 224 Ark. 671, 275 S.W. 2d 887 (1955). In connection therewith evidence as to the.conduct of the accused during the period of his flight including any criminal conduct constituting an inseparable part of the flight such as obtaining money or transportation is generally held admissible. See State v. Ross, 92 Ohio App. 29, 108 N.E. 2d 77 (1952), and State v. Martin, 175 Kan. 373, 265 P. 2d 297 (1953). Furthermore, evidence of flight after the commission of a crime is generally admissible even though it does not occur immediately after the crime, Commonwealth v. Liebowitz, 143 Pa. Super. 75, 17 A. 2d 719 (1941). Neither does the fact that the evidence is cumulative prevent its admissibility, Smith v. State, 216 Ark. 1, 223 S.W. 2d 1011 (1949). Consequently we find this contention without merit.
POINT II. We find no merit in appellant’s contention that the trial court failed to strike the testimony of decedent’s sons.
One son testified: that he last saw his father on Saturday Sept. 9th; that his father had money on him at that time; that his father carried a wallet in his pocket and drove a 64 Chevy pickup truck; and that his father carried his money in his billfold and in his right front pocket. He also identified the body found floating in the lake as his father. The other testified that he last saw his father on Saturday. The court otherwise sustained all objections to the remainder of the testimony on the ground of incompetency or because of leading questions.
The annotator in 67 A.L.R. 2d 731 points out that under the general rule, evidence that the victim of a homicide was survived by a wife or children is irrelevant and inadmissible in a homicidal prosecution unless it is material to the determination of the guilt or innocence of the accused. The same annotator points out that mere receipt of such evidence does not in itself constitute reversible error.
The evidence elicited from the one son and attempted to be elicited from the other son with reference to where decedent carried his money was certainly material to the issue of whether a robbery had occurred under the circumstances. The State at that stage of the proceeding was obligated to corroborate the robbery admitted in appellant’s extra-judicial confession. See Ark. Stat. Ann. § 43-2115 (Repl. 1964).
POINTS III & IV. Appellant here contends that the trial court should have directed a verdict and that the evidence is insufficient to support a felony murder conviction. In support of his arguments appellant relies upon Bell v. State, 177 Ark. 1034, 9 S.W. 2d 238 (1928), and Williams v. State, 239 Ark. 1109, 396 S.W. 2d 834 (1965).
In the Bell case there was no corroboration of an extra-judicial confession. The Williams case requires proof of the perpetration of the crime alleged in the felony murder prosecution.
Appellant here not only made an extra-judicial confession but testified in his own behalf. While on the witness stand he admitted that he was with decedent at the lake, that he hit the deceased, took his wallet, money aind truck and then threw him into the lake. In addition the State proved: that appellant was seen with the decedent at the lake near the time of his death; that decedent’s wallet> money and vehicle had been removed; and that the wallet and vehicle were found where appellant said they would be found. Furthermore, the Deputy State Medical Examiner, after noting an abrasion under the right eye, testified that decedent died from drowning.
When the evidence is viewed in the light most favorable to the jury verdict, we find substantial evidence to support the conviction. See Reeves v. State, 222 Ark. 77, 257 S.W. 2d 278 (1953).
Affirmed. | [
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Darrell Hickman, Justice.
The only question in this case is whether a city attorney’s acting as a criminal defense lawyer denies that defendant the effective assistance of counsel, a right granted by the sixth amendment to the United States Constitution. The trial court held that it does not and we affirm.
Melvin Glenn Haney was convicted in the Pulaski County Circuit Court of four counts of theft by receiving, three being felonies, one a misdemeanor. He was sentenced a total of six years imprisonment for the felonies and six months jail time for the misdemeanor.
Haney’s trial lawyer, evidently retained by him, was the city attorney of North Little Rock. Different counsel filed a motion for a new trial stating that a conflict of interest existed at Haney’s trial since the city attorney’s position was a prosecuting attorney’s role; that his trial counsel was charged with representing the city and sometimes the state against criminal defendants which was a role that necessarily conflicted with that of a criminal defendant’s attorney in the same county. It was not even suggested the trial lawyer was ineffective in his performance; indeed, it was conceded he had vigorously and ably represented the defendant. Therein lies the answer to the question. A defendant has the burden to prove ineffective assistance of counsel to the degree that he was deprived of his constitutional right. Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981); Leasuxe v. State, 254 Ark. 961, 497 S.W.2d 1 (1973). No evidence at all was offered in this regard; it is merely argued that it was improper for the city attorney to act in this case and that that amounts to ineffective assistance of counsel. Haney buttresses the argument with the statement that this is especially true since all the investigating officers were North Little Rock policemen who look to the city attorney for advice, support, and representation from time to time. The trial court found that the appellant failed to sustain his burden of proof and we affirm.
We do not reach the question of whether it is improper from an ethical standpoint for a city attorney to so act or whether the trial court should have excused the trial lawyer on a proper motion. It is not necessary to answer those questions here, and we might later be called upon to review findings of misconduct by our Committee on Professional Ethics in this or similar cases. Even if the representation was improper, it could not void the trial court’s decision because the issue presented is ineffectiveness of counsel, not unethical conduct.
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McHanby, J.
Appellees sued appellant for damages to the truck and cargo of appellee, J. E. Thompson Motor Express Company, hereinafter called the express company, and appellant cross-complained against it for damages to its truck, resulting from a collision on the intersection of Eighth and Pulaski Streets in the city of Little Bock. The truck of the express company was traveling-west on Eighth Street, while that of appellant was traveling north on Pulaski. The west-bound truck had the right of way over the north-bound truck if they approached the intersection at approximately the same time, under the city ordinance. According to the testimony of appellees ’ witnesses, the driver of the express company truck was traveling at a moderate rate of speed, on the right side of the-street, and reached the intersection of Eighth and Pulaski ahead of the other truck, and that appellant’s truck, traveling at a rapid rate, failed to yield the right of way, but negligently continued on into the intersection, striking the express company truck amidship, turning- it over, and causing great damage to the truck' and cargo. According- to the testimony of appellant’s witnesses, the reverse is true; that its driver was proceeding north at a moderate rate of speed, reached the intersection, ahead of the other truck, and was nearly across the intersection when the express company truck rapidly and negligently ran in front of its truck, striking same about the middle of the right front wheel and causing considerable damage thereto. There was a verdict and judgment for appellees.
Appellant first contends that the verdict was not supported by the evidence. We think it unnecessary to set out the evidence in detail, but the substance of it is as briefly stated above. The evidence is in sharp conflict and was sufficient to support a verdict either way. Being purely a question of fact with substantial evidence to support it, the verdict of the jury must stand.
It is next said the testimony does not support the amount of damages recovered. The verdict and judgment were for $656.54. Mr. Critz, secretary of the express company, testified that they paid $520.65 for the damage done to the truck. He submitted an itemized statement of the amount of repairs necessary and that were done, totaling the above sum. He also testified, submitting an itemized statement, to the damage done to the cargo totaling $135.89. The total of these two items is the amount of the verdict. We think his testimony was sufficient to support the amount of the verdict.
Appellant next says that the court erred in giving instruction No. 1 requested by appellees for the reason that, without covering all the issues in the case, it instructed the jury to find in favor of the plaintiff. Appellant fails to point out any issue in the ease not covered, and we fail to perceive any from an examination thereof.
Complaint is also made of instruction No. 2 for appellees on the measure of damages. It told the jury that the appellees were entitled to recover the actual cash value of the merchandise destroyed and the reasonable cost of repairing its truck in the event there was a verdict in its favor. The objection made to this instruction is that the damage to the merchandise was the difference between its value before and after the collision. The instruction did not relate to damaged merchandise, but to merchandise that was destroyed. The instruction is also criticised because it does not tell the jury that the cost of repairing the truck should be only such cost as was occasioned by the collision. We think the instruction necessarily means this. If appellant had thought it open to this construction, it should have made a specific objection thereto.
It is finally insisted that the court erred in refusing to give its requested instruction No. 5, which would have told the jury that if its truck was being driven at a lawful rate of speed and that it was the first truck to enter the intersection, its truck had the right of way “and it was negligence on the part of plaintiff’s driver to drive into the intersection in front of the defendant’s truck.” The court correctly refused this instruction. It was inherently wrong in telling the jury that, if appellant’s truck reached the intersection first, it was negligence for the driver of the other truck to attempt to pass in front of him, without taking into consideration the other facts and circumstances in the case, and it was in conflict with instruction No. 1, already discussed. Mays v. Ritchie Gro. Co., 177 Ark. 35, 5 S. W. (2d) 728 ; Pollock v. Hamm., 177 Ark. 348, 6 S. W. (2d) 541 ; Herring v. Bollinger, 181 925, 29 S. W. (2d) 676.
We find no error, and the judgment is accordingly affirmed. | [
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Holt, J.
January 23, 1950, appellees, citizens and taxpayers in Benton, Arkansas, on their own behalf and all others similarly situated, brought this action alleging: “That defendant, Ross McDonald, is the county clerk of Saline County, Arkansas, and as such it is his duty to prepare the tax books for the City of Benton and Saline County, for the taxes to be collected by the tax collector for the year 1949, which will be due and collectible this year.
“That defendants, W. R. Waters, Y. E. Morden and N. A. Martin, compose the Tax Equalization Board of Saline County, Arkansas, for the tax assessments to be equalized and assessed for the year 1950 to be due and collectible in the year 1951.
“That defendants, Saline County Equalization Board has been directed (by the Arkansas Tax Commission) to reconvene and be in session at the Courthouse;, Benton, Arkansas, from January 23 to January 31, (3950) inclusive, for the purpose of hearing protests and making adjustments in the assessed valuations as reassessed by the Board of Re-assessment for Saline County.
“That the re-assessment of real jjroperty made by said re-assessment board for Saline County, is made without any authority of law and without legal right to make such re-assessment, and that the time for making such assessment has expired, having heretofore been assessed and equalized by the County Equalization Board when in proper session for the year 1949 for the taxes which will be due and payable this year on such property in the City of Benton, Arkansas.
‘ ‘ That the said county equalization board is now without any legal authority to change any of said assessments as made by the former equalization board for the taxes for the year 1949 which will be due in the year 1950, and defendant county clerk has no legal right to enter any reassessment made br such board, and any re-assessment now made by such board or any other board is unlawful and without authority of law.
‘‘ That any such re-assessment would be taking property without due process of law and without proper notice.”
They prayed for injunctive relief against all defendants.
Appellant, Arkansas Tax Commission, in a petition to be made a necessary party (which the court granted) alleged : ‘ ‘ That the Arkansas Tax Commission is an agency of the Arkansas State Government, and as such has certain statutory duties and'powers.
‘ ‘ That said Arkansas Tax Commission, acting within its authorized power, ordered a- re-assessment of all real property in Saline County, said order being issued on October 31,1949.
“That the Arkansas Tax Commission, acting under authority of § 84-464 and Sub-Section (s) of § 84-103, Arkansas Statutes,' 1947, issued an order on January 20, 1950, to the Saline County Clerk and to the members of the Saline County Equalization Board to convene at the Saline County Courthouse at its regular place of meeting-in Saline County, Arkansas, on Monday, January 23, 1950, and continue in session from day to day to and including January 31, 1950, for the purpose of hearing appeals from the action of .the Re-assessing Board, and to make only such adjustments as are necessary to bring about an equalization of urban real property assessments on a basis of twenty (20%) per centum of the true and actual value.” In a separate answer, the Tax Commission denied every material allegation in appellees’ complaint.
Upon a hearing, based upon the pleadings and exhibits, the trial court granted the injunctive relief prayed without giving any specific reason.
This appeal followed.
Under Art. 7, § 28 of the Arkansas Constitution, County Courts were given exclusive, original jurisdiction in all matters relating to county taxes.
Art. 16, § 5, provides that “all property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State,” and Art. 7, § 46 of the Constitution provides that the qualified electors of each county in the State shall elect one assessor “with such duties'as are now or may be prescribed by law.”
The Legislature, in order to bring about equitable assessments, constituted and provided Boards of Equalization to operate in the various counties (§ 84-701, Ark. Stats. 1947), and as a further aid in accomplishing equal assessments, our lawmakers enacted Act 129 of 1927, which created for a period of 32 years, a Commission to be known as the Arkansas Tax Commission. This act clothed the Tax Commission -with certain powers. Section 12, sub-section (a) provides: “To have and exercise general and complete supervision and control over the valuation, assessment and equalization of all property, privileges and franchises; the collection of taxes and enforcement of the tax laws of the State, and over the several county assessors, county boards of review and equalization, tax collectors and other officers charged with tlie assessment or equalization of property or the collection of taxes throughout the State, to the end that all assessments on property, privileges and franchises in this State shall he made in relative proportion to the just and true value thereof, in substantial compliance with law.
“ (p) To order in any year a re-assessment of all real and personal property or real or personal property, or any class of personal property in any county, or in any district or subdivision thereof, when in its judgment such re-assessment is advisable or necessary, and for that purpose to cause such re-assessment to be made by the local assessment officers, or, if in the judgment of the Commission the interest of the public will be advanced thereby, to cause such reassessment to be made by a person or persons to be recommended by the County Judge and appointed by the Commission for that purpose, and in either case to cause such re-assessment to be substituted for the original assessment. Any change in assessed value for State and County purposes shall not affect the assessment of benefits, made for any public improvement.
“(s) To require any county board of equalization, at any time after its adjournment, to reconvene and to make such orders as the Commission shall determine are just and necessary, and to direct and order such county boards of equalization to raise or lower the valuation of the property, real or personal, in any township, district or city, and to raise or lower the valuation of the property of any person, company, or corporation; and to order and direct any county board of equalization to raise or lower the valuation of any class or classes of property; and generally to do and perform any act or to make any order or direction to any county board of equalization or any local assessor as to the valuation of any property or any class of property in any township, district, city or county which, in the judgment of the Commission, may seem just and necessary, to the end that all property shall be valued and assessed in the same manner and upon the same basis as any and all other taxable property, real or personal, wherever situated throughout the State. ’ ’
Section 29: “ * * * Any such re-assessment shall, when completed, be treated exactly as an original assessment and be subject to equalization by the county board and to such appeals from the action of any officer having to do with said assessment as are now provided by law in the case of original assessments. ’ ’
Section 8 of Act 191 of 1949 provides for the right of appeal from the Commission’s actions to the Circuit Court.
Section 31 of Act 129 of 1927 constituted the State Tax Commission a State Equalization Board and provided the yardstick to be used by the Board in the equalization of the assessment. We observe, therefore, that Act 129 gave to the State Tax Commission certain duties and powers as (1) a tax assessing body and (2) as a State Equalization Board.
As a tax commission, the Arkansas Tax Commission was given general and complete supervision and control over the valuation assessment and equalization of all property, privileges and franchises, the collection of taxes and enforcement of the tax laws of the State and supervision over the County Assessors. It was given original and exclusive power over the assessment of both real and personal property, all pipe lines, railroads and other utilities.
Act 12 of 1933 abolished the office of Arkansas Tax Commission and transferred all duties and powers to the Arkansas Corporation Commission. Thereafter, by Act 40 of 1945, all duties of the Arkansas 'Corporation Commission were transferred to the Public Service Commission and in 1949, by Act 191, the Legislature recreated the Arkansas Tax Commission, vesting in it all taxing-powers imposed upon the Arkansas Public Service Commission. In effect, therefore, the Arkansas Tax Commission of 1949 is the Arkansas Tax Commission as created by Act 129 of 1927.
On October 30,1949, the present Arkansas Tax Commission, appellant here, ordered a hearing for all property owners in Saline County to be held October 28th, and on October 31st thereafter, ordered a re-assessment of all real property in Saline County and appointed Assessors. December 20, 1949, the Tax Commission can-celled so much of its order which included rural property. January 20, 1950, after re-assessments were completed, the Commission ordered the Saline County Equalization Board to reconvene on January 21, 1950, to hear appeals and make adjustments on a basis of not less than twenty per cent of the true value of the assessed property. January 23, 1950, the present action was begun resulting, as indicated, in the granting of injunctive relief.
There are two primary questions presented: (1) Whether Acts 129 and 191 are valid, constitutional legislation. (2) Whether the mechanics pursued and acts performed by the Arkansas Tax Commission, in the instant case, were in accordance with the provisions of Act 129 as re-enacted by Act 191 (by reference) and within the time limit within which the Tax Commission was required to act.
-(1)-
As to the first question. We hold that Acts 129 and 191 are constitutional and valid legislative enactments.
This court in State v. Little, 94 Ark. 217, 126 S. W. 713, said: “Our Constitution, art. 16, § 5, provides that ‘all property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State. ’ Hence, it will be seen that the taxing power is a legislative function, and that, subject to constitutional restrictions, the action of the Legislature is supreme,” and in Clay County v. Brown Lumber Company, 90 Ark. 413, 139 S. W. 251, in an opinion by Judge Frauenthal, it was said:
“The Legislature has plenary power to prescribe the manner in which property shall be assessed and its valúa- tioii fixed for the purposes of taxation. Article 16, § 5, of the Constitution of 1874 provides: ‘All property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State.’
“It is common knowledge that one of the most difficult and perplexing undertakings of government is to fix an equal and uniform valuation on property throughout the State. Intelligent men differ as to the value of the most common objects before them; and the most that can be expected from legislation is an approximation to this end of equality, uniformity and fairness of valuation. The jurisdiction to fix this valuation is by legislation ordinarily placed with some officer or board; and boards or courts of revision are sometimes established. But the entire proceedings are statutory, and the statutory remedies provided to a party aggrieved by an overvaluation made within the jurisdiction of the particular officer or board must be pursued. * * *
“When legislation, in accomplishing the necessities of government, makes provision that certain officers or boards shall fix the assessment of property, it does not violate the right of due process of law.”
This court in Hutton, Collector, v. King, 134 Ark. 463, 205 S. W. 296, wherein it was contended that under our scheme for assessment of taxes under Art. 7, § 46, and Art. 16, § 5, of the Constitution, the Tax Assessor was the sole, primary valuer, this court denied this contention and said: “Those two provisions must, of course, be read in harmony so as to give effect to each, and when so read they mean that there shall be a tax assessor elected with duties which the name of his office implies, but that the Legislature may prescribe those duties and direct the manner in' which value of taxable property shall be ascertained. They mean, in other words, .that the office of tax assessor must form a fixed part of any valuation scheme erected by the Legislature, and that the office cannot be abolished nor made a sinecure and an entirely different scheme adopted, but that the lawmakers may, from time to time, prescribe ihe duties of the office and adopt such other methods as may be deemed expedient to ascertain the values of taxable property. * * *
“ ‘The framers of the Constitution of 1874 were therefore familiar with the practice of correcting and revising the assessment of county assessors, whether the office was created by the Legislature or the Constitution; but they have nowhere made their returns conclusive or prohibited the creation of boards to revise and equalize them.’ Further along in the opinion this statement is found: ‘As one of the necessary steps toward ascertaining values for taxation, local assessors elected for the purpose must make, or be afforded the opportunity to make, the primary assessment. But this valuation need not be final. On the contrary, it becomes the duty of the Legislature to afford the means of making this approximate estimate of values conform as nearly as practicable to the constitutional design of equality and uniformity.’ ”
It appears certain that the Arkansas Tax Commission which was created by Act 191 of 1949 must look to said Act 129 of 1927 for the method or mechanics of its procedure. The contention is made, however, that Act 191 is invalid for the reason that it attempts to incorporate portions of other acts' by reference to title only and therefore offends Art. 5, § 23 of the Constitution, which, in effect, provides that no law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only. The answer to this contention is that, as we construe Act 191, it is a reference statute which is original, complete and intelligible in itself and therefore does not offend against the Constitution.
In Arkansas State Highway Commission v. Otis & Company, 182 Ark. 242, 31 S. W. 2d 427, this court, in construing Art. 5, § 23, of the Constitution, said: “In addition, it may be said that textwriters and courts generally say that the constitutional requirement does not apply to supplemental acts not in any way modifying or altering the original act, nor to those merely adding new sections to an existing act. * *
“ ‘It is not necessary, in order to avoid a conflict with this article of the Constitution, to reenact general laws whenever it is necessary to resort to them to carry into effect a special statute. Such cases are not within the letter or spirit of the Constitution or the mischief intended to be remedied. By such a reference the general statute is not incorporated into or made a part of the special statute. The right is given, the duty declared, or burden imposed by the special statute, but the enforcement of the right or duty and the final imposition of the burden are directed to be in the form and by the procedure given by the other and general laws of the State. Reference is made to such laws, not to affect or qualify the substance of the legislation or vary the terms of the act, but merely for the formal execution of the law. The evil in view in adopting this provision of the Constitution was the incorporating into acts of the Legislature by reference to other statutes of clauses and provisions of which the legislators might be ignorant, and by which, affecting public or private interests in a manner and to an extent not disclosed upon the face of the act, a bill might become a law which would not receive the sanction of the Legislature if fully understood.’
“ ‘There is no evil of this or of any nature to be apprehended by the mere reference to other acts and statutes for the forms of process and procedure, for giving effect to a statute otherwise perfect and complete. It would be a serious evil to compel the engrafting upon and embodying in every act of the Legislature all the forms and the details of practice which may be necessarily resorted to to carry any one statute into effect, when the same proceedings are provided for by the general statutes of the State, and are applicable to hundreds of other cases, and with which the legislators may be supposed to be reasonably familiar.’ ”
-(2)-
As to the second question whether' the Tax Commission exercised its powers within the time contemplated by Acts 129 and 191, above, we hold, on the record presented, that it did not, and therefore, the present case must be affirmed for this reason alone.
The constitutional officer in the beginning of the taxing process is the County Assessor. It is his duty to assess real property annually between the first Monday of January and the 3rd Monday in August, each year (Ark. Stats. 1947, §§ 84-414 — 84-416). Thereafter, he is required {% 84-447) to file report of his assessment with the County Clerk on or before the third Monday of August, and in addition, ho is required to make report to the Arkansas Tax Commission of the total assessment of the county, and the County Clerk shall immediately lay this report of assessment before the County Equalization Board (% 84-707). All property shall be assessed according to its value on January 1st of each year. (§ 84-426).
The State Tax Commission may at any time between January 1st and the third Monday in August, in conjunction with the County Assessor, or on its own motion, re-assess all property or correct assessments.
The Tax Commission is required to assess all utilities, etc., in addition to re-assessment. List of utility property shall be delivered to the Tax Commission on or before March 1st (§ 84-601).
The Legislature of 1929 created a County Equalization Board (§ 84-701), which is required to meet annually on the third Monday of August of each year (§ 84-705) and equalize the individual assessments. For this purpose, the Board meets on the third Monday in August and “if necessary up to the third Monday in September and not thereafter, exercise its functions as a Board to equalize the assessed values of such property as has been assessed by the assessor-for the then current year, etc.” (§ 84-706). By this section it is provided that the County Equalization Board may not meet after the third Monday in September for the purpose of equalizing the assessed values of property assessed by the assessor.
Anyone appealing from the orders of the County Equalization Board shall file his appeal with the County Court on or before the second Monday of October ‘ ‘ and shall have preference over all matters in said court and shall be heard and order made oil or before the first Monday of November.” (§ 84-708).
The County Clerk then enters upon the assessment record the adjusted or equalized assessment value of the property as found and fixed by the County Equalization Board unless further adjustments are ordered by the County Court on appeal or by the State Equalization Board (§ 84-712). On or before the second Monday of November, the County Clerk must file, unless otherwise ordered by the Equalization Board (§ 84-713), with the State Equalization Board, a final abstract of the tax books showing “by total of items and value the total assessment of his county after all adjustments.”
The Arkansas Tax Commission, as such, convenes the first Monday of March in each year, § 16, Act 129, and is in continuous session thereafter except when meeting as a State Board of Equalization, § 7, Act 129. Under its powers, the Commission has authority to act as an assessing body in conjunction with the County Assessor and the County Equalization Board and may act in assessing or re-assessing from the opening of the Assessor’s books in January of each year until the books are delivered to the County Equalization Board in August of each year. The assessment made by the Commission is treated as an original assessment and subject to equalization by the County Equalization Board and to appeal as in original assessments.
The Commission, acting as a State Equalization Board, is required, under §§ 84-714 and 84-716, to complete its work and certify its records to the County Clerk in each year on or before the third Monday of November of each year.
As we construe Act 129, the entire scheme of taxation for the current year is completed by the time the County Equalization Board adjourns and within time for appeal to the County Court. The intent was that the appeal would be disposed of in time for the Quorum Court for the current year to levy taxes.
As above noted, § 33 of Act 129 requires copy of the complete record of the Arkansas Tax Commission, acting as an Equalization Board, to be filed with the County Clerk on or before the third Monday of November, in each county in which the assessed valuation of property has been, by the Board, ordered increased or decreased, the date on which the various Quorum Courts meet (§ 17-401) thus affording the Quorum Court a yardstick upon which to levy taxes for the current year.
Obviously, in the present case, the Arkansas" Tax Commission, acting as such and as a Board of Equalization, in 1949, did not complete its work by the third Monday in November, 1949, as we hold it was required to do under Act 129.
In conclusion, we hold that Acts 129 and 191 are constitutional and valid enactments, but since, as indicated, the Arkansas Tax Commission failed to complete its work by the third Monday in November of 1949, for this reason only, the case must be, and is affirmed.
The Chief Justice and Leflar, J., concur in part and dissent in part.
Justices MoFaddin and George Rose Smith concur. | [
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Per Curiam.
In accordance with this court’s opinion denying the petitioner’s motion for rule on clerk without prejudice, the petitioner’s attorney has filed a motion for reconsideration. West v. State, 297 Ark. 392, 763 S.W.2d 69 (1988). In this motion, the petitioner’s attorney, James P. Massie, now states that he accepts full responsibility for the failure of filing the transcript in a timely manner.
We have 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).
The motion is granted, and a copy of this opinion will be forwarded to the Committee on Professional Conduct. See In re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979). | [
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Conley Byrd, Justice.
Appellants Inez Sims and Ruby Hefner appeal from a decree refusing reformation or recission of a deed to them from appellees Faber Wilson and his wife Pearl Wilson. Appellants contend that the trial court erred in overruling a demurrer to the third party complaint against their husbands and in holding that the proof was not sufficiently clear and convincing to order reformation.
The record shows that appellees ran a roofing business adjacent to their home. The property, including the home, fronted 291 feet on Tyler Street in Conway. There was a circle drive for the business and the property behind the dwelling. The negotiations for the purchase of the property by appellants were carried out by their husbands William O. Sims and Opie Hefner. In reaching the terms for the purchase of the property all parties agree that there was a metal tab in the driveway and that it was understood that the parties would share the costs of a partition fence to the rear of the building. The deed conveyed all but the east 90 feet. Admittedly, the description in the deed leaves from 2.7 to 2.8 feet of the business building on the Wilson 90 feet of the property.
Mr. Wilson says that the property line was discussed before the sale and that he placed marks on the building and pointed them out to Mr. Hefner before the sale. Shortly after the conveyance and before the appellants started their remodeling, the appellants caused a survey to be made. The survey in fixing the western boundary did so in accordance with the metal tab in the driveway. Wilson also caused a fence to be erected along the common boundary in back of the building before appellants started their remodeling, and the appellants, upon completion of the fence, paid their half of the costs thereof.
George Lachowsky, a surveyor, fixed the boundary in accordance with the metal tab in the driveway and along the fence line where it joined the building.
William O. Sims testified that it was mutually understood that the driveway would be shared and that the property included everything from the corner of the building west. Mr. Sims admits that the stake or metal tab was viewed by the parties and that the first survey was made after the sale and before the fence was put up. He also admits that the partnership fence was put up before appellants moved in and occupied the building.
Opie Hefner testified that they were buying from the east end of the building west. He saw the metal tabs in the driveway but does not remember what was said about the metal tabs. He also saw the location of the partnership fence when it was finished but made no complaint.
The record is rather conclusive that this litigation was not commenced until after Wilson erected an elec- • trie power pole at the location of the metal tab and strung a temporary fence so as to prevent the use of the circle drive by appellants.
Appellants admit that one seeking to reform or rescind a deed is put to the task of proving his case with clear, cogent and convincing evidence. Here the proof shows: that the appellants viewed the metal tab before the purchase; that they caused a survey to be made; that the partnership fence was built before they remodeled the buildings in accordance with Wilson’s understanding of the location of the boundary; and that appellants paid for their half of the cost of construction without making complaint of the location thereof. Under the circumstances we cannot say that appellants have sustained their burden of proof by clear, cogent and convincing evidence.
In arguing that the trial court erred in not sustaining the demurrer to the Wilsons’ cross-complaint against appellants’ husbands, appellants contend that reversible error was committed because the husbands’ testimony as witnesses would be entitled to more weight than as parties. Even if we should agree with appellants still the alleged error would be harmless here. When we give full credit to testimony of the husbands who negotiated on behalf of their wives and to the fact that one does not ordinarily purchase property when the improvements are located partly on and partly off the property, still such evidence does not become clear and convincing when it is viewed in the light of the parties subsequent conduct— i.e., having the property surveyed and participating in the erection of the partnership fence.
Affirmed.
Harris, C.J., dissents. | [
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Leflar, J.
The question here is whether Ordinance 8163 of the City of Little Eock may by referendum petition filed under the Arkansas Constitution, Amendment VII, be submitted to vote of the people at a special election. Ordinance 8163 authorizes execution of a “cooperation agreement” between the City and the federal Public Housing Administration (hereinafter called P.H.A.) for the construction of certain low-rent housing projects in Little Eock. After referendum petitions were filed, the City Council concluded on advice of counsel that the Constitution did not authorize a referendum on this ordinance, and declined to call an election. The petitioners then brought mandamus to require the calling of an election, the Chancellor denied the writ of mandamus, and this appeal follows.
The “United States Housing Act of 1937,” with its amendments, authorizes federal cooperation with states and local governments in the development of “decent, safe and sanitary dwellings for families of low income, in rural or urban communities” and in the corresponding elimination of “unsafe and insanitary housing conditions . . . that are injurious to the health, safety and morals of the citizens of the nation.” Arkansas by Act 298 of 1937, the “Housing Authorities Act,” created local Housing Authorities in the state and authorized local governmental units to enter into “cooperation agreements” as contemplated by the federal law. Act 298 of 1937 has been sustained and interpreted by this Court in Hogue v. The Housing Authority of North Little Rock, 201 Ark. 263, 144 S. W. 2d 49, and subsequent cases.
By Eesolution No. 1532 adopted on Oct. 5, 1940, the City of Little Eock recognized the need for a Housing Authority to exist and function within the City, and thus gave to the Housing Authority of the City of Little Bock the standing which thereafter enabled it to do business as a going concern. This resolution was not by itself, however, enough to enable the newly created Authority to proceed at once to build or tear down houses; the later execution of “cooperation agreements” for a particular project or projects was pre-requisite to that affirmative activity.
Such a “cooperation agreement” was authorized by Little Bock Ordinance 6010 adopted on Oct. 14, 1940. This ordinance authorized the Mayor to enter into an agreement or agreements with the local Authority for the erection and operation of an unspecified number of low-rent dwellings and the elimination of a corresponding number of “unsafe or insanitary dwelling units,” but with the express limitation that the number of “unsafe or insanitary dwelling units” to be eliminated should in no event exceed three hundred (300). Agreements were apparently executed and housing projects erected and operated under the authority conferred by Ordinance 6010.
Ordinance 8163, now before us, was adopted on Dec. 19,1949. It recited the fact that there are more than 1,000 unsafe and insanitary dwelling units in Little Bock, inhabited by low income families of a number greatly in excess of 1,000, and that P.H.A. had authorized a 1,000-unit construction program for Little Bock. It then authorized the Mayor to execute for the City a new “cooperation agreement” with the local Authority, the provisions of which may be summarized as follows:
The Authority shall endeavor to secure a contract with P.H.A. for loans and contributions to develop and administer one or more housing projects.
The City shall not levy or impose any real or personal property taxes or assessments upon such projects but the local Authority will make annual payments of either ten per cent of the aggregate rent charged by the Authority or the amount permitted to be paid by State law, whichever amount is lower, provided upon failure of the local Authority to pay, no lien can attach against any project or assets of the Authority.
The City shall distribute the payments in the proper proportion among the taxing bodies to which real property taxes would otherwise have been paid.
The City agrees within five years after completion of the project to eliminate unsuitable dwelling units in the locality substantially equal to the number of -new units, with certain exceptions.
During the period while any contract for loans or contributions is in force between the local Authority and P.H.A. or any bonds remain outstanding, the City without cost or charge to the local Authority shall:
A. Furnish the Authority all public services and facilities now being furnished without cost to other inhabitants of the City including educational, fire, police and health protection and services; maintenance and repair of public streets, roads, alleys, sidewalks, sewers and water systems, street lighting, sewer services and such additional services as may hereafter be furnished without cost to other inhabitants.
B. Vacate such streets, roads and alleys within the area of the Project as may be necessary in the development thereof, and convey without charge to the lo&al 'Authority such interest as the City may have in such vacated areas; and, insofar as it is lawfully able to do so without cost or expense to the local Authority or to the City, remove from such vacated areas, insofar as it ma3 be necessary, all public or private utility lines and equipment;
C. Insofar as the City may lawfully do so, grant such waivers of the building code of the City as are reasonable and necessary to promote economy and efficiency in the development and administration of the Project; and make such changes in any zoning of the site and surrounding territory as are reasonable and necessary for the development and protection thereof;
1). Accept grants of easements necessary for the development of the Project; and
11 Cooperate with the local Authority by such other lawful action or ways as the City and local Authority may find necessary in connection with the development and administration of the Project.
The City agrees to furnish garbage and trash removal services at a rate to be later determined but no greater than that charged other inhabitants or existing housing projects and to furnish sewerage services at a rate to be fixed at a later date but not greater than that made to other inhabitants or to existing housing projects nor more than charged public charitable organizations.
The City will accept dedication of all interior streets, roads, alleys and sidewalks within the area of the projects after the Authority has completed them, and will accept dedication of land for and will grade, improve, pave and provide sidewalks on all streets bounding the projects or necessary to provide access thereto and to provide water mains and storm and sanitary sewer mains leading to the projects and serving the bounding streets with the local Authority paying the City such amount as would be assessed against the project if it were privately owned.
If the City fails to furnish the services and facilities as agreed, the local Authority may obtain them elsewhere and deduct the cost thereof from any payment in lieu of taxes due the City.
No Cooperation Agreement heretofore entered into between the City and the local Authority shall be construed to apply to any Project covered by this Agreement.
The contract proposed and authorized shall not be changed and shall be binding upon'the City so long as any contract between the local Authority and the P.H.A. for loans or 'contributions is outstanding or any bonds are outstanding and so long as the beneficial title to the project is held by the Authority or some other public agency including the P.H.A.
The final section declares an emergency making the ordinance in force and effective after its passage and approval.
Amendment YII to the Constitution of Arkansas reserves the power of referendum to the local voters of each municipality, as to all “municipal legislation of every character.” It further provides:
“Every extension, enlargement, grant, or conveyance of a franchise or any rights, property, easement, lease, or occupation of or in any road, street, alley or any part thereof in real property or interest in real property owned by municipalities, exceeding in value three hundred dollars, whether the same be by statute, ordinance, resolution, or otherwise, shall be subject to referendum and shall not be subject to emergency legislation.
“Definition — The word ‘measure’ as used herein includes any bill, law, resolution, ordinance,'charter, constitutional amendment or legislative proposal or enactment of any character. ’ ’
The Amendment then sets out the procedure to be followed in voting on “measures” which are covered by it.
Not all ordinances enacted by city councils come under the head of “municipal legislation.” City governments in Arkansas know no such complete separation of powers as would automatically classify all aldermanic activities as legislative in character.
It is well settled that in some of their functionings city councils in this state act qasi-judicially. Williams v. Dent, 207 Ark. 440, 181 S. W. 2d 29; Martin v. Gogbill, Comr., 214 Ark. 818, 218 S. W. 2d 94. Our statute (Ark. Stats., § 22-302) authorizing circuit courts on certiorari to review proceedings of city councils has been many times employed, though the courts are- deemed to have appellate power only over such acts of inferior bodies as are judicial in nature. Obviously, Amendment VII reserves to tbe voters no power of referendum over tbe judicial or gwasi-judicial acts of city councils.
Similarly, city councils often enact resolutions and ordinances that are administrative or executive in character. This fact is recognized in Chastain v. City of Little Bock, 208 Ark. 142, 185 S. W. 2d 95. Counsel for appellants bere do not deny tbat aldermanic action is frequently administrative, nor do they contend tbat administrative action is subject to referendum. Rather, tbe contention is tbat Ordinance 8163 is legislative in nature, and not administrative. Appellees’ position, contrariwise, is tbat tbe ordinance is administrative in nature, and not legislative.
“Both legislative and executive powers are possessed by municipal corporations. . . . Tbe crucial test for determining what is legislative and what is administrative is whether tbe ordinance is one making a new law, or one executing a law already in existence. . . . Executive powers are often vested in tbe council or legislative body and exercised by motion, resolution or ordinance. Executive action evidenced by ordinance or resolution is not subject to tbe power of tbe referendum, which is restricted to legislative action as distinguished from mere administrative action. Tbe form or name does not change tbe essential nature of tbe real step taken. Tbe referendum ... is designed to be directed against ‘supposed evils of legislation alone’. ‘To allow it to be invoked to annul or delay executive conduct would destroy tbe efficiency necessary to tbe successful administration of tbe business affairs of a city.’ ” 1 McQuillin, Municipal Corporations (2d Ed., Rev., 1940) 1000.
Tbe question of whether particular official acts, including city ordinances, constitute “legislative action” is one tbat has arisen many times and in many contexts. One of tbe commonest forms of tbe question is as to whether the rule or enactment attacked was promulgated in violation of the constitutional prohibition against delegation of legislative power. Legislative bodies may-delegate the power to make administrative rules, but under most circumstances may not delegate the right to enact legislation. Kleiber v. San Francisco, 18 Calif. 2d 718, 117 Pac. 2d 657; 1 Cooley, Constitutional Limitations (8th Ed.) 224; Rottscliaefer, Constitutional Law, 72. But the sense in which the word “legislation” is used in this connection is not always the same as that in which it is used in other contexts. Conduct allowed as “legislative” in character for one purpose may be deemed “not legislative” for some other and different purpose. The only safe approach to this problem of interpretation is one which takes the term solely in its specific context, and seeks the sense given it in the particular section or sentence of which it is a part. Interpretations elsewhere of identical or similar clauses in the same context will be useful by analogy; interpretations even of identical clauses in a different context will have little value. The context relevant here is the municipal referendum provision in a state constitution.
That the problem of interpretation is an intensely practical one is indicated by our own decision in Chastain v. City of Little Rock, 208 Ark. 142, 185 S. W. 2d 95. There it was held that an ordinance calling a municipal election on the question whether certain territory should be annexed to the city was not “municipal legislation” within the meaning of Amendment VII, and that a referendum could not be called on it. A referendum would have involved holding an election to determine whether an election should be held, and we said that one election on the principal issue presented by the ordinance was enough. The framers of Amendment VII had one clear purpose, to insure to citizens the democratic right to rule by majority vote on legislative issues, and that right was assured by the form of the ordinance without any necessity for a referendum. Other states have given their referendum laws the same interpretation. Lang don v. City of Walla Walla, 112 Wash. 446, 193 Pac. 1; Campbell v. City of Eugene, 116 Ore. 264, 240 Pac. 418.
Similarly, if there is a law already enacted which antliorizes the very action provided for by a later resolution or ordinance, then there is no right to have a referendum on the new measure. It is not a new law, but only a procedural device for administering an old law. The right of referendum should have been exercised when the original measure, the enactment that put the law on the books, was newly adopted. Thus, in Burdick v. City of San Diego, 29 Cal. App. 2d 565, 84 Pac. 2d 1064, there had been a series of San Diego city ordinances authorizing the construction of a new police station. These successive ordinances designated the site’ for the new building, accepted the site, authorized the city manager to erect and maintain the building, appropriated money to pay the costs, approved the plans and specifications for the building, created a special fund through which the appropriation was to pass, directed publication of an advertisement for bids, and accepted a federal grant in aid of construction. Finally, a separate ordinance was enacted which in effect gave the “go signal” on the construction job. A referendum was attempted against this last ordinance, but was held not permissible. The California court said that the prior ordinances were legislative in character, and subject to referendum. After they became law without referendum, however, the legislative phase of the project was ended. The final ordinance was nothing more than an administrative enactment, carrying out the previously enacted laws. And in State ex rel. Hall v. Morton, 128 ICans. 125, 276 Pac. 62, a city ordinance which fixed the route for a new highway through the city was held to be administrative merely, not legislative, therefore not subject to referendum, when it did no more than carry out an already existent law which provided for the construction of the highway. There are many other cases making the same distinction. See Keigley v. Bench, 97 Utah 69, 89 Pac. 2d 480, 122 A. L. R. 756; Beaton v. Lackey, 298 Ky. 188, 182 S. W. 2d 336; Hawkins v. City of Birmingham, 248 Ala. 692, 29 So. 2d 281.
We cannot agree that Ordinance 8163 was administrative, and not legislative, in this sense, There was no previous law which antlaorized what 8163 declared should be done. True, no prior law forbade what 8163 authorized, but that is not the point. The point is that without 8163 there would have been no law in Little Rock authorizing the execution of a cooperative agreement covering the particular construction and demolition, and the numerous incidental rights, privileges and exemptions connected therewith, which 8163 provided for.
The Arkansas Housing Authorities Act (Act 298 of 1937) laid the groundwork for local housing authorities in the cities and authorized the cities, after they recognized the existence of the authorities, to make cooperative agreements with them. Little Rock City Council Resolution No. 1532, of October 5, 1940, did no more than breathe the breath of life into the Little Rock Housing-Authority, so that the City could thereafter do business with it. The total effect of these enactments was to make it possible for effective public housing legislation to be enacted in Little Rock; these were preliminary steps only, and the real legislation had yet to be enacted.
Ordinance 6010 was real housing legislation in this sense, since it authorized a cooperative agreement under which actual construction and demolition were to be carried out. But 6010 did not authorize the cooperative agreement that 8163 calls for, nor give any authority for the construction and demolition that would be carried out under 8163. On that, it is enough to remember that 6010 included the express limitation that the number of “unsafe or insanitary dwelling units” to be eliminated under its authority should in no event exceed 300, whereas 8163 authorizes approximately 1,000 such eliminations to correspond with the same number of new dwellings. A careful reading of 8163 shows without question that it provides for new and different housing projects, apart from and in addition to those authorized by 6010. What is to be done under 8163 could not be done under 6010. Ordinance 8163 is a new law, and not a mere procedural device for administering some previous enactment. For a similar holding on similar facts, see Bachman v. Goodwin, 121 W. Va. 303, 3 S. E. 2d 532.
An alternative basis for our decision here is that part of Amendment YII which declares that “Every extension, enlargement, grant or conveyance of a franchise or any rights, property, easement, lease or occupation of or in any road, street, alley or any part thereof in real property or interest in real property owned by municipalities, exceeding in value three hundred dollars, whether the same be by statute, ordinance, resolution or otherwise, shall be subject to referendum and shall not be subject to emergency legislation”. Under the cooperative agreement authorized by Ordinance 8163 the City would, among other things, commit itself to “vacate such streets, roads and alleys within the area of such project as may be necessary in the development thereof, and convey without charge to the local authority such interest as the City may have in such vacated areas”. It is difficult to imagine that a project of the magnitude contemplated, if it be erected within the city limits, would not under the quoted clause involve municipal realty having more than the stated value. Our cases dealing with this part of the Amendment include Southern Cities Distributing Co. v. Carter, 184 Ark. 4, 41 S. W. 2d 1085, 44 S. W. 2d 362; cert. denied, 285 U. S. 525, 52 S. Ct. 393, 76 L. Ed. 922; Smith v. Lawson, 184 Ark. 825, 43 S. W. 2d 544; Carpenter v. City of Paragould, 198 Ark. 454,128 S. W. 2d 980. (One of the members of the Court places his agreement with the result here reached upon this alternative ground only.)
It is irrelevant here to inquire into the motives of those who seek a referendum. It may or may not be that their interests are opposed to the public interest. It may or may not be that theirs are selfish concerns, and that urgent public needs might be more quickly served without the delay of a referendum. We do not consider such intimations.. The framers of Amendment YII presumably had such matters in mind, and by the terms of the Amendment the decision on such matters was left to the electors of the affected area. The framers recognized the validity of Yoltaire’s words, “I disapprove of what you say, but I will defend to the death your right to say it,” and preserved the same protection to the right to vote as to the right to speak. The electors of Little Bock have the right to vote on “ municipal legislation” siich as Ordinance 8163, and it is for them to pass upon the motives, policies and interests that may be involved.
The decree of the Chancery Court is reversed.
Act Sept. 1, 1937, c. 896, §§ 1-30, 50 Stat. 888-899, 42 U. S. Code Ann., §§ 1401-1430.
The amendments and additions to the original Act, including the Act of July 15, 1949, appear in 42 U. S. Code Ann. (1949 Supp.), §§ 1401-1483.
This act, as amended by Acts 352 of 1941, 77 of 1943, and 280 of 1943, appears in Ark. Stats., §§ 19-3001 to 19-3034. Closely related legislation enacted later appears in §§ 19-3035 to 19-3074 and in Ark. Stats. (1949 Supp.), §§ 19-3041 and 19-3042.
This problem is examined in a Note on “The Extent to Which the Writ of Certiorari Lies to Review the Ordinances of Municipal Councils in Arkansas,” in (1940) 8 Univ. of Ark. Law School Bull. 28.
Letter from Voltaire written in 1764 to Claude Helvetius concerning book written by Helvetius. Tallentyre, Friends of Voltaire (1906), p. 199. | [
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Habt, :C. J.,
(after stating the facts). The doctrine that the owner of one lot may acquire an easement over the lot of another by the open, notorious, and adverse use thereof under a claim or right for a period of seven years is well settled in this State. Such adverse user is sufficient to vest the claimant with an easement therein. Clay v. Penzel, 79 Ark. 5, 94 S. W. 765 ; Scott v. Dishough, 83 Ark. 369, 103 S. W. 1153 ; Medlock v. Owen, 105 Ark. 460, 151 S. W. 995 ; and McGill v. Miller, 172 Ark. 390, 288 S. W. 932.
The evidence in this case shows that buildings have been erected upon the lots owned by Stanton and Morrow for between forty and forty-eight- years, and that these buildings have been occupied for business purposes during all that time. When erected and for many years thereafter, they belonged to other persons than to Louise Bond. The lots were 100 feet deep, but the business houses were only ninety feet deep, leaving ten feet for an alley or passageway for the convenience and necessity of loading and unloading merchandise in the business houses. The owner of the property north of them in the same block erected a business house on his property, and he left ten feet for a passageway or private alley. This left an alley twenty feet in width between the houses fronting on Garrison Avenue and those on lot 10' on the north of the same block. This alley was subsequently paved, and was continually used by the different owners of the property as a passageway for the purpose of unloading or loading merchandise from their respective business houses for a period of more than seven years before the defendant purchased the property.
Thus, it will be seen that the various owners of the property acquired an easement therein before the defendant purchased the lots in 1902 and 1903. When the defendant purchased the lots, the tenants of the various buildings continued to use the private passage or private alley for loading.and unloading goods just as it had been used before. In addition, an agent of the defendant erected a warehouse on lot 10 and reserved ten feet on the south side of the building for a passageway just as it had been before she purchased the lots. Now this indicates that the defendant, through her agent, recognized the existence of the easement at the time she purchased the property, and continued to so recognize it until she conveyed a part of the property to Stanton and Morrow. In fact, Stanton testified that Kelley, the agent of the owner, told him when he purchased the property, that there was a permanent passageway to' the public alley in the rear of the building which could never be taken away. While Kelley denied this, he does not deny that he told Stanton that there was a private alley there. As stated in Ward v. Warren, 82 N. Y. 265, what an agent knows about the use of an easement in premises committed to his charge will be attributed to his principal.
The fact that, when the buildings were erected, ten feet were reserved in the rear of them for use as a pas sageway for wagons in delivering and receiving goods from the respective premises, indicates that it was intended for permanent use as a passageway for the owners and tenants of the various buildings, and that this was continued for the period of more than seven years at a time when the various lots were owned by different persons. Thus, under the principles of law above decided and referred to, an easement in favor of the various owners of the lots was acquired before the defendant purchased them. After she purchased the lots now owned by the plaintiffs, she rented out the buildings for business purposes; and all the attendant circumstances tend to show that she, through her agent and tenants, continued to recognize the existence of the easement. Such an easement was both convenient and necessary for a proper use of the buildings purchased 'by Morrow and Stanton.
Mrs. Chauncey never at any time owned the property on the west side of lot 11 on which the proposed structure is to be erected. 'This lot was purchased by the defendant from another person in 1920. It lies next to the public alley, and the passageway over it was used by Mrs. Chauncey during all the time she owned the property now owned by Stanton and Morrow. She and her tenants continually used it for the purpose of delivering goods to' her two stores, and such use was both convenient and necessary as above stated. In this view of the matter, it cannot be said that the easement became merged in her ownership of the fee when she purchased the two lots now owned by Stanton and Morrow.
We think that the easement existed at the time Morrow and Stanton purchased the lots. Therefore, they were entitled to the injunctive relief prayed for, and the decree will be affirmed. | [
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Kirby, J.,
(after stating’ the facts). Appellants insist that the court erred in decreeing a reformation of the guaranty contract, which it contends was clear and free from ambiguities and a continuing guaranty binding each of the signers to the payment of the sum of $7,000 in accordance with its terms.
Appellees seek no construction of the contract and attempt.no explanation of its meaning varying from its terms or contradictory thereof by the production by parol testimony, but only a reformation of it in accordance with the agreement of the parties. In Phoenix Assur. Co. v. Boyette, 77 Ark. 41, 90 S. W. 284, the court said:
“Whatever be the effect of a mistake, pure and simple, there is no doubt that equitable relief, affirmative or defensive, will be granted when the ignorance or misapprehension of a party concerning the legal effect of. the transaction in which he engages, or concerning his own legal rights which are to be affected, is induced, procured, aided, or accomplished by inequitable conduct of the other parties. It is not necessary that such inequitable conduct should be intentionally misleading, much less that it should be actual fraud; it is enough that the misconception of the law was the result of, or even aided or accompanied by, incorrect or misleading statements or acts of the other party.” See also Stewart v. Fleming, 96 Ark. 371, 131 Ark. 955 ; Graham v. Thompson, 55 Ark. 296, 18 S. W. 58 ; Conn. Fire Ins. Co. v. Wiggington, 134 Ark. 152, 203 S. W. 844 ; Adcox v. James, 168 Ark. 842, 271 S. W. 980 ; Galloway v. Russ, 175 Ark. 659, 300 S. W. 390 ; Nicholson v. Hayes, 166 Ark. 112, 265 S. W. 640 ; see also Griswold v. Hazzard, 141 U. S. 260, 11 S. Ct. 972, 31 L. ed. 378 ; Philipine Sugar Estate Development Co., Ltd., v. Gov’t of Philipine Island, 274 U. S. 385, 38 Sup. Ct. 513, 62 L. ed. 513.
In Nicholson v. Hayes, supra, the rule is laid down as follows:
‘ ‘ The rule in this State is that, to justify a reformation of a written instrument, there must have been a mutual mistake on the part of one party coupled with the fraud on the part of the other, and that, if parol evidence is relied upon to establish the ground of reformation, it must be clear, unequivocal and decisive. Welch v. Welch, 132 Ark. 227, 200 S. W. 139, and Cain v. Collier, 135 Ark. 293, 205 S. W. 651.”
Appellees showed the circumstances and explained their reason for not reading the guaranty when presented for their signature because of the assurance-of their kinsman, in whom they had the utmost confidence, that it expressed the agreement as already made between them, and, being’ lulled into security in such belief, were not barred from relief by any negligence in failing to carefully read the instrument. St. Louis, I. M. & S. Ry. Co. v. McConnell, 110 Ark. 306, 161 S. W. 496. See also Stewart v. Fleming, supra.
Laches cannot be imputed to appellees for not sooner moving- to reform the contract of guaranty since they had no knowledge or information that it had not been drawn in accordance with their understanding of the agreement, in which Mr. Lloyd England, who presented it for their signatures, appeared to concur, as shown by his letters relative thereto, until the Exchange National Bank presented its claim for probate under said guaranty against the estate of one of the guarantors in September, 1927. This suit -was instituted in October thereafter. Rozelle v. Chicago Mill & Lumber Co., 76 Ark. 525, 89 S. W. 469 ; 23 R. C. L. 516.
The finding of the chancellor is not against the preponderance of the testimony, which established' the ground relied on for reformation of the guaranty, in accordance with the rule requiring it to be established by clear, unequivocal and decisive evidence.
It follows that the judgment of the court is correct, and it will be affirmed. It is so ordered. | [
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Per Curiam.
Clifton Haggans, by his attorney, has filed a motion for a rule on the clerk.
His attorney, Lohnes T. Tiner, admits by motion and brief 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 In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).
The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Lyle Brown, Justice.
This is an appeal from the denial of unemployment compensation benefits. The local agency for unemployment compensation at Ft. Smith denied the claim; that action was appealed to the appeals tribunal, where after a hearing by the referee the claim was again denied; the matter then went to-the board of review and the referee was upheld; and the circuit court affirmed. The single finding upon which denial of compensation was based was that claimant-appellant did not make reasonable efforts to preserve his job rights. The one point for reversal is stated thusly: “The appellant relies upon the fact that had he applied for job preservation rights due to illness under the circumstances of this case, they would have been denied by the employer, that an effort to obtain employment in another department of the same store would not have relieved the circumstances resulting in the condition requiring the job change and that under these circumstances, to require an exercise in futility is unreasonable and not required by the language of the unemployment compensation act”. Succinctly stated, appellant contends that a secondary cause of his illness was the pressure of the sales work and that he was medically advised he should seek employment elsewhere.
Appellant testified that on November 3, 1971, he had an unpleasant verbal confrontation with the store manager and suffered severe chest pains; that he went to a doctor; that his condition was diagnosed as viral upper respiratory illness and hyperventilation syndrome; that he was permitted by the doctor to return to work on November 18, with the admonition that he was to return to the doctor if he had a recurrence. There was shortly a recurrence and claimant says he was advised by the doctor to change his employment because of the history of stress. On November 26, 1971, appellant went to Mrs. Shields, the personnel manager and resigned. Appellant concedes that he made no effort to preserve any job rights because he was not aware of them and also, that it would have been a vain thing to do because he would, as long as he worked in sales, be under the same pressure which contributed to his illness. He further asserted Mrs. Shields should have advised him of any benefits to which he was entitled.
On November 29, 1972, appellant filed a claim for benefits indicating the reason to be “extreme pressure”. The local office of employment security determined that appellant left his work “for reasons other than good cause in connection with the work” and was therefore not entitled to any benefits. Appellant timely filed a petition for appeal to the referee and for his reason stated: “I feel that I had good cause to leave since I was under extreme pressure and my doctor advised that I get away from that job”.
A hearing was conducted pursuant to the appeal on January 5, 1972. Appellant stated that he discussed his physical problems with Mrs. Shields on November 26, the day he resigned. “I did not ask for leave of absence and I did not request transfer to other work with Sears.” A letter from appellant’s doctor was introduced:
Mr. Daves was seen initially by myself in the early part of November because of upper respiratory illness and some chest pain and secondary hyperventilation syndrome. He was evaluated. No serious difficulty was found. His diagnosis was a viral upper respiratory illness and hyperventilation syndrome. Part of his difficulty is secondary to pressure from his work. He returned to work on the 18th of November and had recurrence of his hyperventilation syndrome which was felt to have been due to pressure of his job. It was felt that he should make a change in his employment because of his physical reaction to the stress of his job. It has been recommended that he seek other employment.
Appellant explained that he was a floor salesman, dealing in household appliances of varied types. He attributed the pressure from his supervisors to two principal sources. First, he got a red mark if he sold more than seven percent of “leader merchandise”. “If you sell over seven percent, they put you in the shoe department or move you out of the department. I mean just constantly threatening you all the time to move you to a lesser job.” The other source of pressure he described as pertaining to the sale of service contracts. Of the 100% of his sales of appliances he said he had to sell 60% service contracts on those items “or you’d be threatened to move you into the grease pit or something like that or move you out someplace else where less desirable work was accomplished, compatible to the type work that I do”. He related that the described pressures developed during the last year he worked. He also said the pressures were standard to all Sears’ salesmen.
Appellant testified he did not ask Mrs. Shields for transfer to another job because selling was the type of work in which he had years of experience. He said he did not ask for a leave of absence because the doctor had recommended he get out of the pressured job and get into some other type selling. He reiterated he was not offered a transfer or a leave of absence.
Mrs. Shields testified for Sears. She said there were seven other salesmen in appliances who work under the same conditions as appellant. The tenure of other salesmen ran 24, 15, and 12 years, down to less than a year. She explained that Sears tried to keep the sales up “and Jack (appellant) was the low man in sales and maintenance agreements, so I’m sure he did feel more pressure than some of the others”. She stated that the company granted leaves for illness, and tried to grant permission to transfer whenever requested. She said appellant did not ask for leave at the time he resigned and as to transfer, “he stated he would not be interested working in another department”. She related that appellant gave as his reason tor quitting, “that the job interfered with his health, according to his doctor”. She testified she subsequently went to appellant’s home to get written permission from him to authorize his doctor to give Sears a statement; that appellant refused to sign such a release; and that the doctor therefore refused to release any information.
Appellant called as his witness a former appliance salesman for Sears. Mr. West generally corroborated appellant with reference to the pressure put on salesmen.
The reteree made a finding that “the claimant voluntarily quit his last work with the above named employer without making reasonable efforts to preserve his job rights prior to quitting. It was not established that the claimant was under any more pressure in his work than other salesmen employed by this employer in the same department. The claimant did not make an effort to preserve his job rights with this employer by requesting transfer to other work, as he felt that the other jobs to which he might be transferred might not enable him to earn the commission he had customarily earned in the household appliance department”. Then the referee cited the only section of law that is applicable to a resolution of this case, being a portion of Ark. Stat. Ann., § 81-1106 (Supp. 1971):
For all claims filed on and after July 1, 1971, if so found by the Commissioner, an individual shall be disqualified for benefits:
(a) If he voluntarily and without good cause connected with the work, left his last work. Such disqualification shall continue until, subsequent to filing his claim, he has had at least 30 days of paid work.
Provided no individual shall be disqualified under this subsection if, after making reasonable efforts to preserve his job rights, he left his last work due to a personal emergency of such nature and compelling urgency that it would be contrary to good conscience to impose a disqualification; or, if after making reasonable efforts to preserve his job rights, he left his last work because of his illness, injury or disability.
The claimant perfected an appeal and a hearing was conducted for the board of review on February 18, 1972. At that hearing appellant appeared with his attorney and the latter examined Mrs. Shields. She was questioned at length about the policy of Sears with reference to leave of absence due to illness. In that respect she stated that Sears has a very liberal policy. It is not necessary that we discuss illness benefits because that is not a part of the unemployment compensation law. To draw unemployment compensation a worker must be able to work and be available for work. Ark. Stat. Ann. § 81-1105 (c) (Supp. 1971). Illness benefits are completely aside from the issue of unemployment benefits which are the subject of this litigation.
Another letter from appellant’s doctor, dated February 15, 1972, was read to Mrs. Shields. In essence it stated that the doctor recommended claimant change jobs within the firm; that his patient felt that would be undesirable because he would be under the same pressure from the same supervisors; that the doctor therefore recommended that appellant change jobs entirely, that is, to another company. Mrs. Shields testified that had Sears been presented with the letter, it would have granted sick leave, and had appellant requested it, he would probably have been granted a different job within the firm. In fact, she stated there was an opening in home improvement sales on November 26, 1971, concerned with selling air moving equipment, such as cooling, heating and plumb ing, at which job appellant could have made more commission.
The board of review sustained the findings of facts and conclusions of law made by the referee. That finding was affirmed by the circuit court on appeal.
In deciding these cases we follow the substantial evidence rule. Terry Dairy Products Co. v. Cash, 224 Ark. 576, 275 S.W. 2d 12 (1955). It is undisputed that appellant made no effort to preserve any job rights, such as a request for transfer to another department. We reiterate: we are not here adjudicating any right to illness benefits because that benefit is a matter between employer and employee based on the policy of the company; it is not a right granted by the unemployment compensation act.
I
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Per Curiam.
The petitioner Felix Taylor was found guilty in a trial to the court of forgery in the second degree and sentenced to five years imprisonment with four years suspended. The Court of Appeals affirmed. Taylor v. State, CA CR 87-156 (February 24, 1988). Petitioner has filed a petition and amended petition pursuant to Criminal Procedure Rule 37 seeking post-conviction relief.
In September 1988 the United States District Court Eastern District of Arkansas, Western Division, entered an order vacating the judgment of conviction against the petitioner on the ground that pursuant to 28 U.S.C. § 1443 et seq. the circuit court did not have jurisdiction to enter the judgment because a petition for removal was pending in the federal court at the time the judgment was entered. The district court allowed the state sixty days to enter a new judgment in the case, which was done on September 20,1988. The federal court did not question that there was a valid finding of guilt. Petitioner does not contend that he appealed from the federal court order or from the judgment entered in the trial court in September. He claims simply that he is entitled to have the original charges against him dismissed under Rule 37 on the ground that the circuit court was without jurisdiction to enter the original judgment because the petition for removal was pending. There is no basis for Rule 37 relief under these circumstances. The fact of the matter is that petitioner is clearly concerned more with the technical argument he has fashioned than with substantiating his other grounds for relief in the petition such that this court can assess whether any of the allegations warrant post-conviction relief. After a thorough review of the petition, we do not accept petitioner’s conclusion that he is entitled to collaterally attack either the original judgment or the judgment entered in September or to have his case dismissed on the basis of the federal court’s action. Further, we find no other ground in the lengthy petition or amended petition which has facts to support it from which it can be concluded that petitioner was denied a fair trial.
The remaining allegations in petitioner’s petition and amended petition are: (1) he was not given an opportunity to present a defense; (2) he was not given an attorney when sentence was imposed; (3) the trial judge was racially prejudiced and denied him a fair trial; (4) the sentence constituted cruel and unusual punishment in violation of the eighth amendment; (5) the sentence was imposed by the trial judge because of petitioner’s race and color; (6) if he had been white, the charges would not have been brought; (7) he was not afforded the right of allocution; (8) the trial judge changed the scope of the trial by hearing unnamed witnesses for the prosecution which the state had agreed would not be called; (9) the trial judge’s attitude toward petitioner changed after the court made extra-judicial contact with attorneys for petitioner in a civil case and petitioner asked the court to recuse; (10) the trial judge did not allow petitioner to present a defense; (11) petitioner was brought before the trial judge on July 19,1988, so that the judge could show his prejudice and dislike for him; (12) the trial judge asked that Will Oliver, a bail bondsman, be contacted on July 18, 1988, to determine why petitioner had not been picked-up; (13) the trial judge was unconstitutionally and illegally elected in violation of the 1965 Voting Rights Act and the fourteenth and fifteenth amendments; (14) the prosecution failed to disclose that the complaining witness had committed a bank robbery in 1981 and witness bribery in 1985; (15) on July 18, 1988, petitioner was unlawfully arrested and imprisoned by Will Oliver and held illegally and unconstitutionally until August 2, 1988, when he was transferred to the Arkansas Department of Correction; (16) the Pulaski County Jail denied him access to counsel on July 31, 1988; (17) Will Oliver had no legal authority to make the arrest, but if he did have authority, it was unconstitutionally granted by the state of Arkansas; (18) the state of Arkansas illegally allows bail bondsmen to do “what it cannot legally and constitutionally do with qualified law enforcement officials;” (19) conviction was obtained by the prosecuting attorney who was illegally and unconstitutionally elected; (20) the Arkansas Supreme Court’s rule against allowing non-attorneys to check out transcripts is unconstitutional; and (21) the trial court had a duty to notify the Attorney General of the United States before proceeding further in his case. All of the allegations enumerated above are conclusory, that is, they do not state facts from which this court could conclude that the petitioner suffered any prejudice. Moreover, the allegations which relate to the events leading to petitioner’s conviction are not timely raised under Rule 37. The rule is not intended to provide a method for the review of mere error in the conduct of the trial or to serve as a substitute for raising issues at trial or on appeal. Even questions of constitutional dimension are not preserved beyond the direct appeal unless they present questions of such fundamental nature' that the judgment is rendered void. Ruiz v. State, 275 Ark. 410, 630 S.W.2d 44, cert. denied, 459 U.S. 882 (1982). None of the allegations raised by petitioner has factual substantiation from which it'can be concluded that his conviction is void. The allegations which pertain to events after trial are not within the purview of the rule which is limited to questions related to the conviction and sentence, not the execution of the sentence.
Petitioner also asserts that he was denied the effective assistance of counsel on appeal. He contends that counsel failed to: (1) file a motion for new trial and subsequently filed a notice of appeal which prevented petitioner from filing a motion for new trial; (2) raise the jurisdictional issue on appeal; (3) prepare an adequate abstract and brief; (4) allow him to assist with the brief on appeal and denied him access to the record; (5) file a petition for rehearing and petition for review; (6) file a motion to stay or recall mandate pending appeal to the United States Supreme Court; (7) file a notice of appeal to the United States Supreme Court; (8) represent him when he was falsely arrested by Will Oliver and brought before the trial judge on July 19, 1988; and (9) pursue information provided by the prosecutor about a witness with evidence helpful to the defense. As with the previously enumerated allegations of error, petitioner has not met his burden of explaining how he was prejudiced by the failure of counsel to act. For example, petitioner does not explain what he would have argued in a motion for a new trial or in a petition for rehearing or review, fails to explain why the actions of counsel after the case had already been affirmed on appeal had any bearing on his right to effective assistance of counsel on appeal or what the unnamed witness with evidence helpful to the defense would have testified about if contacted by counsel. It is well settled that allegations which are unsubstantiated and which fail to show prejudice to the defense are not sufficient to warrant post-conviction relief. Strickland v. Washington, 466 U.S. 668 (1984); Tackett v. State, 284 Ark. 211, 680 S.W.2d 696 (1984).
Petition and amended petition denied.
Purtle, J., dissents. | [
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