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Minor W. Millweb, Justice.
Appellees, Carl Gr. Sutton and wife, were the owners of a 63-acre farm in Boone County, Arkansas, on February 3, 1947, when they entered into an “Escrow Contract” for the sale and conveyance thereof to appellants, J. F. Jackson and wife, Effie Jackson. The. contract required a cash payment of $1,200 on the purchase price of $3,800 with the balance payable $309 a year beginning January 20, 1948, until the last payment of $200, The deferred payments bore interest at the rate of six per cent and were evidenced by nine notes payable as provided in the contract.
The contract further provided that a copy thereof, together with a warranty deed and abstract of title, should be placed in escrow and delivered to appellants upon full payment of the purchase price; that appellants were to pay future taxes and keep the property insured; and that, upon default in the payments stipulated in the contract, the escrow agent sliould return the deed and abstract to appellees and appellants should surrender possession of the property, all moneys collected under the contract to be retained as rent and liquidated damages.
Appellees filed this suit on May 25, 1949, alleging that appellants had defaulted in performance of the contract by failing to make payments of the annual installments, taxes and insurance. A copy of the contract was attached as an exhibit to the complaint which asked for a cancellation of the contract and deed placed in escrow and for possession of the property.
In their answer and cross-complaint appellants admitted the execution of a contract in which they agreed to make the payments as alleged b} appellees, but denied that the contract sued upon was the one signed by them. Appellants asserted that the contract as actually executed had been altered or substituted to eliminate certain provisions ; that the agent of appellees had made false representations as to acreage and fences; that appellees had failed to finish a house under construction on the property as required by the contract actually executed; and that appellants had breached the contract by refusing to comply with such provisions.
After thorough consideration and analysis of the testimony which was taken in the form of depositions, the chancellor held that appellants had failed to discharge the burden of showing a fraudulent substitution or alteration of the contract; that the agent of appellees made no false or fraudulent representations in the sale of the land, and that appellants had defaulted in the contract payments, However, the court gave appellants the right to elect whether they should pay delinquent installments, taxes and insurance and thereby continue the contract in-force or whether they would forfeit the contract. Appellants’ request for a week within which to make an election was granted. At the expiration of such period, appellants announced in open court that they declined to make the delinquent payments and continue the contract. A decree was accordingly entered dismissing appellant’s cross-complaint, ordering cancellation and forfeiture of the contract, and directing return of title papers held by the escrow agent and delivery of possession of the lands to appellees within 60 clays.
Appellants contend that the chancellor’s findings, that the contract sued upon had not been fraudulently substituted, or altered, and that no false representations had been made by appellees’ agent, are against the greater weight of the testimony. We cannot agree with this contention.
Appellees, who reside in Amarillo, Texas, listed the lands for sale with D. C. Overturff, a real estate agent at Green Forest, Arkansas. Appellants, who came to Boone County from Texas, approached Overturff, inspected the property and made an offer to purchase which appellees accepted by wire. Overturff had an attorney prepare the two-page typewritten contract in triplicate. After appellants signed the contract, it was mailed to appellee, Carl G. Sutton. Appellees then signed the contract, retained the original, deposited one copy with the escrow agent, along with a warranty deed and abstract of title, and returned the other copy to Overturff who delivered it to appellants. The original and a photostatic copy of the carbon copy left with the bank were introduced in evidence by appellees.
As originally drafted the contract designated the First National Bank of Green Forest, Arkansas, as escrow agent. Appellee, Car-1 G. Sutton, changed the contract by substituting the Amarillo National Bank of Amarillo, Texas, as escrow agent. The testimony is conflicting as to whether this change was made prior to consummation of the sale agreement, but the preponderance of the evidence shows that appellants acquiesced in the change and made payments in the amount of $356 on the contract without objection thereto.
In September, 1947, appellants entered into a contract with Sam Thomas to exchange the 63-acre farm and certain personal property for 400 acres of land in Colorado. Pursuant to this agreement, appellants transferred their copy of the contract involved in this suit to Thomas. It developed that Thomas did not own the lands which he agreed to convey to appellants. He' absconded with appellants’ personal property and attempted to convey the lands here involved to Merritt Pin-ley of Malvern, Arkansas, while appellant, J. P. Jackson, was in Colorado investigating title to the 400 acre tract. Appellants did not introduce their copy of the contract with appellees and Mrs.-Jackson testified that it was in Finley’s possession the last time she saw it.
Appellants testified that the contract signed by them provided that a house under construction on the premises was to be finished at the expense of appellees, and that the land was to be enclosed on the north and west sides by a wire fence. Appellants’ son, Mrs. Jackson’s mother, and two neighbors who lived on adjoining premises testified that they read the contract soon after its execution and corroborated the testimony of appellants as to its contents. Some of these witnesses stated that the contract consisted of three typewritten pages. J. P. Jackson stated that the provisions relative to finishing the house and fencing the lands started near the bottom ol the first page of the contract. Most of this testimony was in response to questions that'were very leading. The chancellor thought it unlikely that most of these witnesses would remember the exact terms of a written contract casually read by them many months before they gave their testimony. In short, the court did not consider such testimony very convincing, and neither do we.
Although appellants denied that the contract introduced by appellees was the contract actually entered into, neither of them denied their signatures thereto. The witnesses for appellees denied that there was any alteration of the contract except the change as to the escrow agent, which they assert, was made with the express consent of appellants, and the contract itself supports this conclusion. They also testified that appellants made no complaint about the matter of completion of the house, the acreage and the building of fences until after this suit was brought.
Appellants also argue that D. C. Overturff, who also handled the trade between appellants and Sam Thomas, fraudulently colluded with the latter in order to cause appellants to surrender their copy of the contract to Thomas. This contention is not supported by the evidence.
The issues are purely factual and the chancellor’s findings are fully supported by the greater weight of the evidence.
Affirmed. | [
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George Rose Smith, Justice.
In 1969 Grace Buffing-ton sold a house and lot in the city of Benton to the appellants, Mr. and Mrs. Walter Comstock. The pur chase price was to be paid in monthly installments. Mrs. Buffington died testate in 1971, leaving her interest in the property to her sister, the appellee Alcye Smith. Mrs. Smith brought this suit to cancel the contract. The chancellor found the agreement of sale to be void, as a violation of the rule against perpetuities. Whether that finding is correct is the principal issue here.
The facts are undisputed. For 25 months before the sale the Comstocks had been occupying the property as tenants, at a rental of $85 a month. The contract of sale recited down payment of $2,125, but no money was actually paid, the recited figure being merely the total amount of rent previously paid by the Comstocks. The true sales price was $18,000, payable in monthly installments of $85 each until the purchase price, together with interest at the rate of TA per cent per annum, was paid in full.
The original complaint sought cancellation of the contract on the grounds that the seller was mentally incompetent and that the agreement was unfair and impossible of performance. When the case was tried upon that theory the chancellor sustained the defendants’ demurrer to the evidence at the close of the plaintiff’s proof. Thereafter, and apparently before a decree was entered, the court permitted the plaintiff to amend her complaint to assert a violation of the rule against per-petuities. We cannot say that the court abused its discretion in allowing the complaint to be amended, especially as no prejudice to the defendants resulted from the slight delay that occurred. Ark. Stat. Ann. § 27-1160 (Repl. 1962); Harris v. Starr, 226 Ark. 127, 288 S.W. 2d 332 (1956).
The chancellor was right in concluding, after a second hearing, that the contract violates the rule against perpetuities. Under that rule an interest must vest within a period measured by a life or lives in being plus 21 years. Gray, The Rule Against Perpetuities, § 201 (3d ed., 1915). In the case at hand the monthly payment of $85 was less than the interest upon $18,000, at 7/4 per cent per annum. There was no requirement that the prin cipal debt be paid at any specified time. Consequently the purchasers and their successors in interest might have made payments for scores or even hundreds of years without violating their contract Or acquiring a right to a conveyance of the property. Thus the alienability of the title might be fettered for a period far beyond that allowed by the rule against perpetuities. While the rule does not apply to executory contracts not affecting an interest in property, it does apply to a contract which creates a property right that can be enforced by specific performance. Gray, supra, § 330; Restatement of Contracts, §§ 593 and 401 (1944); First Nat. Bk. & Tr. Co. of Lexington v. Purcell, Ky., 244 S.W. 2d 458 (1951); Kershner v. Hurlburt, Mo., 277 S.W. 2d 619 (1955); First Huntington Nat. Bk. v. Gideon-Broh Realty Co., 139 W. Va. 130, 79 S.E. 2d 675 (1953). The contract in the case at bar falls within that category.
The appellants, in arguing that the contract is valid, rely upon a paragraph in the agreement which provides that the purchasers cannot sell, transfer, or assign the contract, or lease the land, without the consent of the seller, and that if such a sale, transfer, assignment, or lease is made contrary to the contract the seller may declare the entire balance of the purchase price immediately due or may rescind the contract. The appellants contend that since they, must have the seller’s consent to transfer the property by deed, by will, or by intestacy, the contract must be performed if at all within their own lifetimes.
That argument is unsound. The interest must vest within the time allowed by the rule. If there is any possibility that the contingent event may happen beyond the limits of the rule the transaction is void. Gray, supra, § 214; Moody v. Walker, 3 Ark. 147 (1840). In Tucker v. Pulaski Fed. S. & L. Assn., 252 Ark. 849, 481 S.W. 2d 725 (1972), we held that a court of chancery will not permit an acceleration clause to be exercised in a manner that is unfair to the debtor. Consequently, as that opinion recognizes, there could be many situations in which the appellants or their successors might validly transfer their interest in the contract without the consent of the seller or her successors. Thus there is unquestionably a possibility that the life of the agreement might extend beyond the time allowed by the rule.
The chancellor awarded the appellants $775.75 to reimburse them for taxes, insurance, and an improvement to the land. He refused, however, to allow them to recover their monthly payments, since the rental value of the land offset the amount of those payments. The court was right. The appellant, under a void contract, occupied the property as their residence. In the circumstances they have no standing in a court of equity to obtain the return of their payments without any deduction for the benefits they received. Compare Penney v. Vessells, 221 Ark. 389, 253 S.W. 2d 968 (1952); Dodd v. Mills, 219 Ark. 91, 240 S.W. 2d 25 (1951); Restatement of Restitution, § 157 (1937). One who demands equitable relief must in turn do equity.
Affirmed. | [
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George Rose Smith, Justice.
The appellee brought this action to recover the unpaid balance of the purchase price of a combined heating and áir-conditioning system which the defendants, Mr. and Mrs. Dopieralla, bought for their beauty salon and beauty school, in North Little Rock. By answer and counterclaim the Dopierallas denied liability and sought damages, on the ground that the air-conditioner had broken down so repeatedly that they had finally been compelled to take out the entire system and replace it. At the close of the case the trial judge directed a verdict for the plaintiff. Whether the testimony presented an issue of fact is the only issue on appeal. ¡
The seller rested after establishing a prima facie case by proof that the buyers signed a purchase contract in October of 1967; that the contract called for 72 monthly payments of $45.18 each; and that the defendants bei-came delinquent after having made only 40 monthly payments.
The Dopierallas offered their own testimony and that of three other witnesses. According to their proof, they relied upon the seller to select an air-conditioner capable of cooling their place of business. The witnesses said that the unit which was installed never operated for more than a few days without breaking down. The seller, upon being called, would wait about a week before sending someone to work on the system. During the interruptions in service the Dopierallas lost customers owing to the excessive heat that was created by the steam, the hot water, and the driers in the beauty shop and school. Some of the girls fainted. According to Mrs. Dopieralla, she was assured by Charles Jackson, one of the seller’ls employees, “that they could make it work.” * * * “Every time they worked on it they kept assuring us that they would” make it work. According to Mrs. Dopieralla’s son, he was finally told by one of the seller’s repairmen, who had worked on the unit most of an afternoon, that “there’s not much I can do with it. It needs replacing.” The record is not completely clear as to dates, but apparently the purchasers stopped making payments and replaced the system soon after the incident just mentioned.
The defendants’ proof is uncontradicted. That is, after the defense rested its case the plaintiff did not call Charles Jackson or its repairmen or any witness at all to deny the defendants’ testimony. Thus the issue is whether the purchasers’ undisputed proof made a case for the jury.
We have concluded that it did. The controlling principles of law are not in dispute. Under the Uniform Commercial Code the buyer may revoke his acceptance of a commercial unit not conforming to the contract if his acceptance was reasonably induced by the seller’s assurances. Ark. Stat. Ann. § 85-2-608 (Add. 1961). The revocation must occur within a reasonable time after the buyer discovers or should discover the ground for revocation. Id. What is a reasonable time depends upon the circumstances. § 85-1-204. That question is ordinarily one of fact for the jury. Anderson, Uniform Commercial Code, § 1-204:4 (2d ed., 1970); Robinson v. Jonathan Logan Financial, 277 A. 2d 115 (App. D. C., 1971).
Counsel for the appellee argue, with no citation of authority, that it was simply not reasonable for the purchasers to keep the unit and make payments for 40 months in reliance upon the seller’s assurances that the air-conditioner would be made to work. That argument might well be addressed to a jury, but it does not justify our saying as a matter of law that the buyers’ reliance was unreasonable. We regard this case as being controlled by our decision in Gramling v. Baltz, 253 Ark. 361, 485 S.W. 2d 183 (1972), where the purchaser of a truck delayed his rejection of the vehicle for more than two years in reliance upon the seller’s assurances that repairs could be made. We held that a question of fact was presented and reversed the trial court’s action in directing a verdict against the buyer.
In Gramling the purchaser’s delay exceeded two years, while here it exceeded three years. That difference, however, is not controlling. If we were unable to say that a delay of more than two years was not unreasonable as a matter of law, there is nothing in the statute requiring such a declaration when the delay exceeds three years. Moreover, in the case at bar the air-conditioning unit was presumably used for not more than six months in each year. There was no occasion for the purchasers to complain or to seek rescission during the rest of the year. Consequently the delay of 40 months in the case at bar was actually not as significant as the delay of more than two years in the Gramling case.
Reversed and remanded for a new trial.
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Frank Holt, Justice.
These cases were consolidated at trial and on appeal since the same issues exist in each case.
A contractor, Don Kymes, agreed to build a house for the appellants. Appellees, Reed and Dollar, each contracted with Kymes to supply certain equipment for the house. The equipment supplied through Kymes by Dollar was valued at $1,360. The appliances furnished through Kymes by Reed were worth $506.30. Appellees, Reed and Dollar, were never paid by Kymes and timely filed their respective materialmen’s liens on the Rasmussen property. Several weeks prior to the filing of the liens, Kymes was adjudged bankrupt. Neither Dollar nor Reed joined Kymes as a co-defendant in their complaint or petition to foreclose their respective liens until sixteen months after their liens were filed. Nevertheless, the lower court granted both appellees a lien upon one acre surrounding appellants’ dwelling. Appellants contend that since appellees failed to join the contractor, Kymes, as a co-defendant within fifteen months of the filing of their liens, the statutory limit, the tardy joinder constitutes a bar to this action.
Ark. Stat. Ann. § 51-610 (Repl. 1971) requires the contractor to defend an action against the owner to enforce a lien. We have consistently interpreted this statute to require that the contractor is a necessary party to an action to enforce a lien. People’s Building & Loan Assn. v. Leslie Lbr. Co., 183 Ark. 800, 38 S.W. 2d 759 (1931), Cruce v. Mitchell, 122 Ark. 141, 182 S.W. 530 (1916), and Simpson et al v. J. W. Black Lbr. Co., 114 Ark. 464, 172 S.W. 883 (1914). Appellees vigorously contend that this is a harsh requirement and we should reconsider our long standing rule.
The policy reason for that requirement is set forth in People’s Building & Loan Assn. v. Leslie Lbr. Co., supra:
This court, therefore, is committed to the doctrine that in suits to foreclose mechanics liens the contractor is a necessary party. He should be made a party because the original contract for the improvements is made between the contractor and the owner. The other contract, that with materialman, is made between the contractor and materialman; the owner is not a party to it, and it is therefore necessary in a suit to foreclose a mechanic’s lien against the property of the owner, to make the contractor a party. The owner is not primarily liable, and it is necessary to make the contractor a party to prove the debt against him, show that the material went into the construction of the building, before the materialman is entitled to a lien against the owner’s property ....
The rationale and practicality of the requirement that the contractor be joined as a necessary party are further well stated in Simpson et al v. J. W. Black Lbr. Co., supra:
He was a necessary party, both for his own [the contractor] and the owner’s protection. The owners had the right to look to him for payment of any judgment that might be recovered against their property for materials furnished, having contracted with him to supply such materials and paid him the contract price for the improvement and can not be compelled to resort to another action against the contractor for the recovery of such sum of money in which the contractor would be at liberty to claim that he did not owe the materialman the amount for which the judgment was rendered and the lien enforced. It is the intention of the law to have the contractor to defend all such actions and be bound by the judgment rendered.
We adhere to our decisions.
Ark. Stat. Ann. § 51-616 (Repl. 1971) places a fifteen month statute of limitations for commencement of a foreclosure action after timely filing a lien. In the instant case, the petitions to foreclose the asserted liens were filed against the owners within the fifteen month period. However, the contractor was not joined as a party until sixteen months after the liens were filed. In each case, the joining of the contractor by leave of the court after the statutory period had expired, constituted a new cause of action which was barred. Simpson et al v. J. W. Black Lbr. Co., supra.
Appellees argue that the amendment did not come too late because the Federal Bankruptcy Act tolled our statute of limitations. The section of that act relied on by appellees is 11 U.S.C. § 29 (f):
The operation of any statute of limitations of the United States or of any state, affecting the debts of a bankrupt provable under this title, shall be suspended during the period from the date of the filing of the petition in bankruptcy ... (3) until thirty days after dismissal of the bankruptcy proceeding. . . .
Appellants stipulated to the existence of a bankruptcy proceeding involving Kymes. The stipulation appears in the Reed case and is referred to and incorporated in the Dollar case.
The court: Well, so far as this proceeding is concerned in this claim and other cases involved here, the court is going to rule that if either there is a stipulation or proof that Kymes is in bankruptcy and that bankruptcy court had issued its usual injunction against bringing lawsuits against him.
Mr. Rasmussen: We’ll stipulate that provided that there is a date as to discharge from bankruptcy. [That date was provided which was several months before appellees’ petitions to foreclose their asserted liens were instituted.]
Appellees rely on that stipulation as being sufficient to invoke the tolling provision of the Bankruptcy Act. However, we note that the “usual injunction” issued by the Bankruptcy Court in the Kyme proceeding temporarily enjoined all creditors in that court proceeding from attempting the collection of their claims and stayed their pending suits. We do not construe the stipulation as being sufficiently comprehensive to include appellees. Unless appellees were listed as creditors in the bankruptcy proceeding, they cannot utilize the tolling provision, 11 U.S.C. §29 (f), supra. The stipulation and the record, including the appellees’ pleadings, are void of any proof that appellees themselves were listed creditors.. The court will not extend a' stipulation beyond its terms nor construe a waiver of a right not plainly intended to be relinquished. See In Re Caroll, 247 So. 2d 350 (Ala. 1971), and Griego v. Hogan, 71 N. M. 280, 377 P. 2d 953 (1963). Appellees misplace the burden of proof. They shouldered the responsibility of demonstrating their status as listed creditors, since the burden falls on the party attempting to toll a statute of limitations. Taylor v. Merchants National Bank, Ex’r., 236 Ark. 672, 367 S.W. 2d 747 (1963).
Since the contractor, a necessary party to both actions, was not joined within the statutory period, we must reverse the judgments and dismiss the causes. Therefore, it becomes unnecessary to discuss other contentions asserted by appellants for reversal.
Reversed and dismissed. | [
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Hart, C. J.
This is an action of false imprisonment by William Lee Smith against W. A. Fish as sheriff of Linclon County and his bondsmen. The defendants justified the arrest of the plaintiff on a warrant issued by the county court of Lincoln County, which is as follows:
“The -State of Arkansas, to the sheriff of Lincoln County — Greeting:
“Whereas, William Lee Smith was on the 4th day of June, 1927, by the county and probate judge of Lincoln County, adjudged to be insane; and,
“Whereas, the superintendent of the State Insane Asylum has signified his readiness to receive said William Lee Smith as an inmate of said asylum.
“Now, therefore, you are hereby commanded to take the said William Lee Smith into custody and to deliver him without delay to the -superintendent of the State Insane Asylum at Little Bock, Arkansas.
“In testimony whereof, I have hereunto set my hand this 4th day of June, 1927.
“J. W. Paschall,
County and Probate Judge.”
The basis of the suit was that the county court acquired no jurisdiction over the person of the plaintiff at the time the judgment of insanity was pronounced against him, and the warrant for his commitment pursuant to said order was issued and delivered to the sheriff. On the part of the plaintiff, it was shown that he was arrested and confined in the insane asylum for several months under the warrant of commitment issued to the sheriff, and that no service of process had been had on him at the time the county court of Lincoln County adjudged him to be insane. The circuit court directed a verdict in favor of the defendants, and the case is here on appeal.
The judgment of the circuit court in favor of the defendants was correct. It is the settled rule in this State that process, fair on its face, will protect from liability the officer executing it. This court has held that imprisonment by virtue of a legal writ in due form issued by a court of competent jurisdiction and served in a lawful manner does not constitute false imprisonment, even though it was improvidently or wrongfully issued. Trammell v. Russellville, 34 Ark. 106 ; Campbell v. Hyde, 92 Ark. 128, 122 S. W. 99. Under our statute any county and probate judge has jurisdiction to examine for insanity any citizen within its jurisdiction and to order such person, if found to be insane, to be confined in the State Hospital for Nervous Diseases. Section 9401, et seq. Crawford & Moses’ Digest. The record shows that the order of commitment was issued by the county court of Lincoln County in which county the plaintiff at the time resided. The warrant of commitment was regular on its face, and protected the sheriff in his arrest of the plaintiff. Moreover, the plaintiff failed to file his motion for a new trial within the three days prescribed by § 1314 of the Digest, and offered no excuse for his failure to do so.
The court has held that where the record is silent as to the considerations that control the court in permitting the motion to be filed and remain of record, it must be presumed that they were legally sufficient to justify such action, and that it was made to appear to the court that the delay was unavoidable. Fordyce v. Hardin, 54 Ark. 554, 16 S. W. 576. See Graves v. Jewell Tea Co., 180 Ark. 980, 23 S. W. (2d) 972. In the present case, however, the record shows that when counsel for plaintiff offered to file his motion for a new trial out of time the court informed him that he might deliver it to the clerk, and that when it was presented for the determination of the'court his grounds for delay would he considered. Counsel for the defendants objected to the court’s consideration of the motion on the ground that it was not filed within the time, allowed by statute, and that th,e plaintiff was not unavoidably prevented from doing so within the meaning' of §1314 of the. Digest. Hence, there being no motion for a new trial filed, every presumption must be indulged in favor of the validity of the .judgment, and we can consider only errors which appear on the face of the record.
There are no errors apparent on the face of the record, and the judgment will therefore be affirmed. | [
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Conley Byrd, Justice.
Appellant Hazel Morgan was convicted by a jury of the crime of pandering, Ark. Stat. Ann. § 41-3208 (Repl. 1964), and sentenced to five years in the State Department of Corrections.
1. Carolyn Garcia testified: that she was encouraged to work as a prostitute for appellant on appellant’s premises; that she was thirty years of age and had been married five times; that although she had never before been a prostitute she worked for appellant at appellant’s premises for four hours on a Monday and four hours on a Tuesday on a sixty-forty split and earned one hundred dollars each day.
Three other women testified that they worked as a prostitute for appellant at the same place and about the same time.
We hold this evidence to be sufficient to sustain the charge of procuring or enticing a female to become a prostitute.
2. We find no merit to the contention that the trial court erred in permitting the other women to testify that they worked as a prostitute at the same time and place. Evidence to show -that appellant constantly employed other women as prostitutes was admissible to show a scheme or course of conduct. See Boyle v. State, 110 Ark. 318, 161 S.W. 1049 (1913).
3. Appellant contends that the alternative mode and means of committing the offense of pandering cannot be intermingled to arrive at an alternative way of violating the statute. The contention is without merit for in Malone v. State, 202 Ark. 796, 152 S.W. 2d 1019 (1941), it was pointed out that after charging the offense it is permissible to describe in the alternative the manner in which the female was procured, persuaded or enticed to become a prostitute. Here the matter was narrowed by a bill of particulars to charging appellant with procuring Carolyn Garcia to become a prostitute.
4. Appellant here argues that the court erred in giving State’s Instruction No. 1 because it does not fully define pandering and does not state that the jury must find that appellant induced Carolyn Garcia to become a prostitute. We find no merit in the contentions. In the first place the objections now stated were not raised in the trial court. In the next place the instruction does properly define the term pandering in terms of the statute, and the other instructions pointed out that before the jury could find the defendant guilty they had to find that she induced Carolyn Garcia to become a prostitute.
5. We find no merit in the contention that the court in giving its instructions erred in using the phrase “procuring of any female for the purpose of prostitution” instead of using the phrase “inducing the prosecuting witness to become a prostitute.”
Affirmed. | [
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Smith, J.
Willie Joe Davis, Roosevelt Davis and Eddie Long were jointly indicted for the murder of J. W. Weed, it being alleged that the crime was committed "after deliberation and premeditation, and with the felonious intent then and there to rob J. W. Weed.” * * * There was a severance, and Willie Joe Davis and Eddie Long were separately tried and each convicted of murder in the first degree, and they have appealed from judgments sentencing them to death. Separate trials were had, and separate appeals have been prosecuted, but the questions presented are sufficiently similar to be disposed of in a single opinion. It does not appear whether Roosevelt Davis has been tried.
A demurrer was interposed to the indictment at each trial, which was overruled in each instance. The indictment is almost an exact copy of the one held good in the case of Washington v. State, 181 Ark. 1011, 28 S. W. (2d) 1055, except the difference in the names of the parties, and as we have not changed our view as to the sufficiency of that indictment, it will suffice to say that the indictment was not demurrable.
The sufficiency of the testimony to sustain the convictions is not questioned, and reversals are asked upon other grounds. We shall, therefore, discuss only so much of the testimony as will be required to dispose of the assignments of error upon which reversals are asked.
It was the theory of the prosecution that the parties named in the indictment went to the place of business of J. W. Weed, a merchant in North Little Eock, to rob him, and, while engaged in this attempt, killed him. As tending to identify appellants as the persons who killed Weed, and as showing the purpose for which they went to his place of business, Joe Lee testified that between seven and eight o’clock of the night Mr. Weed was killed and within a few blocks of Mr. Weed’s place of business, three men held witness up and robbed him. They even took his shoes. Lee recognized appellants as two of the robbers, and so testified in each trial. In admitting this testimony over the objections of appellants, the court admonished the jury that the testimony could be considered for the purpose only of identification, and upon the question of their intent in entering Weed’s place of business. The indictment alleged that Weed was killed in an attempt to rob him, and it was this unlawful intent which rendered it unnecessary for the State to prove that deliberation and premeditation which would otherwise be required to establish the crime of murder in the first degree. It was pointed out in the Washington case, supra, and in the cases there cited, that our statute has modified the common law, so that murder committed in the perpetration, or the attempt to perpetrate, certain named felonies, including robbery, is deemed murder in the first degree, and a showing of deliberation and pre- ■ meditation is not required.
It was essential for the State to show that appellants were in Weed’s place of business for the purpose of committing the crime of robbery. Weed was killed about eight o’clock, and Lee’s testimony is to the effect that just a short time before this and at a place near the scene of the killing appellants, robbed him, and were armed when they did so. The testimony was, therefore, competent to show the business in which appellants were engaged that night, and the probable purpose for which they went to Weed’s place of business soon thereafter.
It is well settled that if testimony tends to prove the commission of the crime charged in the indictment, it is not to be excluded because it also tends to show the commission of another or different crime. Cain v. State, 149 Ark. 616, 233 S. W. 779 ; Hall v. State, 161 Ark. 453, 257 S. W. 61 ; Stone v. State, 162 Ark. 154, 258 S. W. 116 ; Warford v. State, 175 Ark. 878, 1 S. W. (2d) 23.
In the trial of appellant Davis it was not contended that he was not present at the time of the killing of Mr. Weed, and the testimony fully sustains that finding, and the testimony of Lee tends to show that, if Davis was present, Long was present also, as they were together a short time prior to the killing’. We therefore conclude that no error was committed in admitting the testimony of Lee. The relevancy of Lee’s testimony will be made more apparent by other facts which will be stated.
At the'trial of appellant Davis testimony was offered to the effect that, because of a syphilitic infection from which he had long suffered, his mentality had been impaired to the extent that he was not responsible for his conduct, and certain physicians who qualified as experts gave testimony tending to support that contention. Opposing this contention the State offered the testimony of Morris Logan, Lon Barnard, J. R. Parris, J. H. Miller, and S. A. Hamilton, who were non-experts, to the effect that in their opinion Davis was sane, and they were permitted to express that opinion over the objection of appellant Davis.
Medical experts are not the only persons who may express their opinion upon the sanity of a person whose mental condition is the subject of judicial inquiry. But, for the non-expert to be allowed to do so, he must state the facts upon which his opinion is based, and must, as a condition precedent, show that he has known the alleged insane person for such a length of time, and has had such opportunities to observe him, as to furnish a reasonable basis for the opinion expressed. It is always a preliminary question of fact for the trial court to say whether the witness has qualified himself in this respect, and the trial'court should exclude the testimony of the non-expert witness who does not show that he has had opportunities for observation, and who does not state the facts upon which he bases his opinion. The value of such testimony depends, in a large measure, upon the intelligence of the witness and his opportunities for observation, but these are matters to be weighed and considered by the jury after the testimony has been admitted upon the prima- facie showing that the witness has had such acquaintance with and opportunities to observe the person whose sanity is in question as to furnish a reasonable basis for the opinion expressed.
The law of this subject has long been settled by numerous decisions of this court, and need not be further reviewed. A late case on the .subject is that of Thurman v. State, 176 Ark. 88, 2 S. W. (2d) 50.
Under this test we think no error was committed in permitting the non-expert witnesses named to express the opinion that appellant Davis was sane. All of these witnesses had frequently seen Davis over a period of from one to three years, except Hamilton and Farris, who were the jailers having Davis in custody since his arrest. Confinement in jail covered a period of about five months, and the jailers testified that they saw Davis daily, and conversed with him frequently, and, that he spent his time like the other prisoners, that he answered all questions coherently, and knew what was going on, and conducted himself like the other prisoners, and had done nothing to make them suspect that he was insane. We conclude therefore that the testimony was competent.
An instruction was asked in each case to the effect that appellant could not be convicted of the crime of murder in the first degree unless it was found that the killing was done after deliberation and premeditation. It sufficiently appears from what has already been said that this instruction was properly refused.
The .court refused in each case to charge upon the lower degrees of homicide, and submitted to the jury the question only of the guilt of appellants of the crime of murder in the first degree. The same question, upon similar facts, was raised in the Washington case, supra, and there decided adversely to the contention here made, that decision being to the effect that, if the evidence on behalf of the prosecution shows that the defendant, if guilty at all, was guilty of murder in the first degree, and there was no evidence tending to reduce the degree of the homicide, no error was committed in refusing to charge upon the lower degrees.
The appellant Long became a witness in his own behalf, and admitted that he had spent the afternoon preceding the killing- of Weed with appellant Davis and his brother Roosevelt Davis, and that shortly before eight o’clock all of them went to Weed’s place of business. He did not enter, but the Davis brothers did. They said they were going in to buy a sandwich. He walked to the street corner, and started back to remind the Davis brothers of a dance they had all arranged to attend, but before reaching Weed’s place he heard shooting and, knowing that he had been seen in company with the Davis brothers, he ran away, that he knew nothing about the shooting, and did not know what it was about or who did it. It was shown that Long had pawned a 32-caliber pistol after the shooting, and that Weed was shot with a pistol of that caliber. Long testified that the pistol belonged to Roosevelt Davis, and that he had pawned it for him and had given him the money.
Katie Davis, the wife of appellant Davis, testified concerning statements made to her or in her presence by appellant Long, the purport thereof' being that appellant Long was an active participant in the murder of Weed, and other witnesses gave testimony to the same effect.
Appellant Long, as a witness on his own behalf, testified that the police in North Little Rock beat him up after arresting him, and that; if he made any statements which appeared to connect him with the crime he had done so only because of the fear that he would be beaten again.
On his cross-examination the prosecuting attorney asked Long about several of these statements, and Long either denied having made the statements, or said that they were untrue and had been made only because officer Hendricks, of the North Little Rock police force, had beaten him up, and that he had made the statements under the influence of the fear thus engendered. The prosecuting attorney questioned Long concerning his whereabouts shortly before the killing and asked him if he had not told officer Hendricks that he and the Davis brothers had robbed Lee and had taken his shoes away from him, and he denied making the statement. Hendricks was called in rebuttal and testified that he had not participated in the arrest of Long, but was in Memphis at the time, and that he did not offer any violence to Long at any time, and that Long did make the statement to him, or in his presence, set out above, which, as a witness, Long denied having made.
The testimony of the witness Hendricks was admitted over the objection of appellant Long, but we perceive no reason why it was not competent. Its relevancy and materiality are apparent. Appellant Long did not request the court, as a preliminary matter, to hear testimony as to whether these statements, which were in the nature of a confession, had been freely and voluntarily made.
The practice in such cases has been defined in numerous decisions of this court. It is to this effect. When testimony in the nature of a confession is offered, the accused has the right to object to its admission, upon the ground that the alleged confession was not voluntarily made, in which event the trial court should hear testimony as to the circumstances under which the alleged confession was made, and should exclude the confession if it was not voluntarily made. If the testimony is conflicting on that question, the jury should be told to disregard the alleged confession unless they found that, it was, in fact, voluntarily made, but, if it appeared to have been voluntarily made, to consider it in connection with all the other evidence in the case.
No such request was made, nor were any instructions asked upon that question. Statements in the nature of a confession are not to be excluded for the reason only that they were made to an officer having the accused in custody, and, if Long voluntarily made these statements to, or in the presence of, the witness Hendricks, there is no reason why he should not have been allowed to testify concerning them. The law of this subject was recently very thoroughly considered and the authorities reviewed in the case of Bell v. State, 180 Ark. 79, 20 S. W. (2d) 618, and no' useful purpose would be served by again reviewing them.
We have carefully considered the records in both cases, and as we have found no error in either, the judgments in both cases must he affirmed, and it is so ordered. | [
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DuNaway, J.
Correctness of the judgment of the Boone Probate Court in denying appointment of a guardian of the person and estate of Elfie Learn Chisman as an incompetent person is the main issue on this appeal. The court’s order as to costs and certain fees is also questioned on appeal and cross-appeal.
Appellee, Elfie Learn Chisman, .is an elderly widow who returned to live in Harrison, Arkansas, with her sister, Allie M. Powers, from her home in Denver, Colorado, following the death of appellee’s husband in December, 1949. Before leaving Denver, appellee sold her home, and later deposited part of the proceeds of the sale in the Commercial Bank in Harrison and invested the balance in U. S. government bonds. The bonds were payable to appellee and her sister, and the bank account was in their joint names. Appellee lived with Mrs. Powers during the month of March, 1949, until she went to Windsor, Missouri, to visit a Mrs. Means, an aunt by marriage. Upon her return to Harrison she stayed with Mrs. Powers for several days, and then boarded with a Mrs. Cochran until she was injured in a fall about eight weeks later. She then remained in the Harrison Clinic for fifteen days, when she again went to the home of Mrs. Powers where she stayed until July 17, 1949. Mrs. Powers suffered a heart attack on July 14, 1949; following this Dr. Powers, husband of Allie M. Powers, took appellee to Windsor, Missouri.
In March, 1949, Mrs. Powers had taken appellee to the office of R. E. Rush, an attorney in Harrison, where she executed a will naming Mrs. Powers as the principal beneficiary!
On August 10, 1949, James B. Wilson, an attorney of Windsor, Missouri, came to Harrison with a power of attorney from appellee, and sought to gain possession of all appellee’s property to remove it to Missouri. Thereupon, Mrs. Powers filed petition in the probate court seeking appointment of a guardian of the person and estate of appellee, alleging her incompetency “by reason of ill health and feeble mind”. Value of appellee’s estate was listed as approximately $13,000 in cash and bonds.
On August 11, 1949, the referee in probate made an order appointing T. N. Flinn guardian of the person and estate of Elfie Learn Chisman. Proper bond was filed, .letters of guardianship were issued, and Plinn took charge of the estate of Mrs. Chisman.
Appellee then on September 20, 1949, filed a motion to quash the order appointing a guardian on the ground that no service of process on her was had as required by Ark. Stats. (1949 Suppl.) § 57-611. On September 23, 1949, the probate court found that the notice required by law had noi. been given and sustained the motion as to appointment of a guardian of the person of Elfie Learn Chisman, but continued the matter as to the guardianship of her estate within the court’s jurisdiction until a hearing on the merits. Exceptions to this action were duly saved by appellee, but in view of the court’s final action in the matter we do not pass upon this phase of the proceedings.
At the hearing on the merits, both Mrs. Powers, the petitioner, and Mrs. Chisman, the alleged incompetent, testified. Each side presented lay witnesses whose testimony was in direct conflict as to appellee’s competency. The medical testimony likewise was conflicting, with two doctors testifying for each side. In view of this conflict, the court appointed a disinterested physician to make an examination and report his findings as authorized by Ark. Stats. (1949 Suppl.) § 57-615. This doctor testified that in his opinion appellee is competent.
The definition of an incompetent as set out in the Probate Code of 1949 (Ark. Stats'. (1949 Suppl.) § 57-601) does not change the test of competency approved by this court in many decisions. As we said in the recent case of Kelley v. Davis, 216 Ark. 828, 227 S. W. 2d 638: “The legal test of competency for the purpose here under consideration was fully discussed in Schuman v. Westbrook, 207 Ark. 495 at page 499, 181 S. W. 2d 470, 472, where we said, quoting from Pulaski County v. Hill, 97 Ark. 450, 134 S. W. 973: ‘But the question in all such cases, where incapacity arising from defect of the mind is alleged, is, not whether the mind itself is diseased or the person is afflicted with any particular form of insanity, but, rather, whether the powers of the mind have become so affected, by whatever cause, as to render him incapable of transacting business like the one in question. As a general rule, it may he stated that in order to have that measure of capacity required by law to be of sound mind, a person must have capacity enough to comprehend and understand the nature and effect of the business he is doing . .
The probate judge held the evidence insufficient to establish the incompetency of appellee. Although there is testimony which would have supported a contrary holding, we cannot say the trial court’s finding is against the preponderance of the testimony; so under our established practice we will not substitute our judgment for that of the court below. Boyland v. Boyland, 211 Ark. 925, 203 S. W. 2d 192.
Appellants earnestly insist that the trial court erred in not allowing Plinn any fee for services as guardian during the time he held possession of appellee’s estate under the original appointment by the referee. Likewise it is urged that the attorney for the guardian is entitled to compensation for his services to be paid by appellee. The court held that since the original order was without notice to appellee as required by law and hence invalid; and the guardianship dismissed on a hearing on the merits, that the court was without power to order these payments made from appellee’s estate.
Appellants argue that the guardianship of the estate should be treated as a temporary guardianship as authorized by Ark. Stats. (1949 Suppl.) § 57-620. That section reads as follows: “If the court finds that the welfare of an incompetent requires the immediate appointment of a guardian of his person or of his estate or of both, it may, with or without notice, appoint a temporary guardian for the incompetent for a specified period not to exceed ninety days, and remove or discharge him or terminate the trust. The appointment may be to perform duties respecting specific property or to perform particular acts, as stated in the order of appointment. The temporary guardian shall make such reports as the court shall direct, and shall account to the court upon termination of his authority. In other respects the provisions of this Code concerning guardians shall apply to temporary guardians and an appeal may be taken from the order of appointment of a temporary guardian. The letters issued to a temporary guardian shall state the date of expiration of the authority of the temporary guardian. ’ ’
It will be noted that this provision authorizes appointment of a guardian without notice where the court finds that it is immediately necessary for the welfare of the incompetent. The statute limits the time for wliicli such appointments may ho made and directs that such time he specified in the order of appointment. In the case at bar, the original order was made simply on the basis of the verified petition of Allie M. Powers. The proceeding was not instituted as one for the appointment of a temporary guardian, and the order made was not in conformity with the statutory requirements.
The provision of the Probate Code of 1949 authorizing the appointment of a temporary guardian without notice should certainly not be given so liberal a construction that an invalid guardianship order can be made the basis of charging the estate of one subsequently held to bo competent, for services rendered at the instance of the adverse petitioner. The court correctly denied the allowance of guardian’s and attorney’s fees against ap-pellee. Both Plinn and the attorney undoubtedly performed valuable services in good faith and should be recompensed by Mrs. Powers.
The final question, raised on cross-appeal, concerns the court’s allowance of a fee to the examining physician appointed by the court. This fee was ordered paid from appellee’s estate. The section of the statute which authorizes such appointment contains this language: “The court shall fix the fees to be paid such examiners, which shall be charged as part of the costs of the proceeding. The costs of the proceeding shall be paid by the petitioner, who shall be reimbursed therefor out of the estate of the incompetent, if a guardian be appointed.-” ( Ark. Stats. (1949 Suppl.) § 57-615).
The statute plainly provides that the petitioner shall pay the costs of the proceedings, including the fee of the examining physician appointed by the court, subject to reimbursement if a guardian is appointed. Here no guardian was appointed. It follows that the petitioner is not entitled to reimbursement from the estate of ap-pellee and that the probate court improperly ordered appellee to pay this item.
The judgment is accordingly affirmed on appeal- and reversed on cross-appeal. | [
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McHaney, J.
Prior to July 14,1923, appellee applied to appellant for a policy for fire and tornado insurance in the sum of $1,000, through appellant’s soliciting agent, W. O. Kemper. The policies were issued, effective July 14,1923, for a term of three years, expiring July 14,1926. Before the expiration of the policies Kemper solicited and obtained from appellee an application for renewal of same and a warrant ivas issued to him covering the amount of the premium thereon. Renewal policies were never issued by appellant. On Thanksgiving night in November following, the property covered by the old policies was destroyed by tornado.- Appellee demanded payment of its loss, which was refused, and this suit followed.- There was a verdict and judgment for appellee.
Kemper was a mere soliciting agent. He had no authority to write policies of insurance for appellant or to make oral contracts for insurance on behalf of appellee. His authority was limited to taking applications for insurance, forwarding them to appellant, countersigning them and delivering the policies when issued and sent to him by appellant -and collecting the premium therefor. The application which he took from appellee for the second policy contained this clause: “It is understood and agreed that this -application shall not be construed as a contract of insurance against said company until the same shall he approved by the said officers of said company, which approval shall be evidenced by the issuance and delivery of its policy.” The form of receipt furnished by appellant to Kemper to be issued and delivered by him to applicants for insurance at the time of taking the application contained this concluding sentence: “If you should not receive a policy within ten days, please notify R. M. Henry, Manager, Memphis, Tenn.” More than four months intervened between the taking of the application and the loss, but no inquiry was ever made to the company or its manager at Memphis regarding the policy. Kemper testified that he forwarded the application and appellant’s share of the premium to it, but never heard any more from it. Appellant’s testimony was to the effect that it never received either the application or the money and had no information regarding same. For the purposes of this case we will assume as a fact, which the jury has evidently found by its verdict, that Kemper did send the application and the money to appellant.
Under an almost identical state of facts, this court held in National Union Fire Ins. Co. v. School District No. 55, 122 Ark. 179, 182 S. W. 547, L. R. A. 1916D, 238, that there was no liability on the part of the insurance company until the policy was actually issued. The application for the policy in that case contained the identical clause above quoted, and with reference thereto the court said: “Under the express terms of this proposal on the part of appellee for insurance it is stipulated that there shall be no contract of insurance until the company shall approve the application and evidence its approval by the issuance of a policy.” In that case the application and the money covering the premium were not forwarded by the agent to the company, which was done in this case and constitutes the only differences in the facts in the two cases. With reference to this the court said: “Under this stipulation of appellee, even if the soliciting agent had promptly forwarded the application to the company, the latter was under no legal obligation to issue the pol icy to appellee. The authority of the soliciting agent to receive and forward the application if strictly followed did not impose upon the appellant any legal duty.
“If the application had been promptly transmitted and received, appellant would' not have been liable until the policy was actually issued. Cooksey v. Mutual Life Ins. Co., 73 Ark. 117, 83 S. W. 317, 108 Am. St. Rep. 26 ; Peoples Mut. Life, Accident & Health Ins. Co. v. Powell, 98 Ark. 166, 135 S. W. 823.” Again it said in the same case: “The better reason ancf the decided weight of authority support the doctrine that mere delay in passing upon an application for insurance cannot be construed as accepting such application and consenting to be bound for the insurance sought by it, nor can a cause of action for negligence be grounded upon such delay.”
We are therefore of the opinion that this case is ruled by that, and that instruction No. 2 given by the court over appellant’s objections is directly contrary to the holding in the case. To the same effect is Interstate Business Men’s Accident Assn. v. Nichols, 143 Ark. 374, 220 S. W. 477, citing and following the National Union Fire Ins. Co. case, supra.
Appellant requested a peremptory instruction in its favor, which, as we have already shown, should have been given in so far as any liability for the destruction of the school property is concerned. The undisputed proof shows, however, that on July 5, 1926, appellant’s agent collected from appellee $53.75, for which no policy was issued. Appellant is liable to the district for this sum of money with interest from said date at 6 per cent. Judgment will therefore be entered here for said sum, together with all costs. In all other respects the case is reversed and dismissed. | [
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George Rose Smith, Justice.
This is a condemnation case. The highway department, by a declaration of taking filed on January 26, 1965, took a strip of about 12 acres across a 52-acre tract owned by the appellees, Tony Christello and his wife. The jury fixed the landowners’ compensation at $20,000. In substance the appellant argues two points for reversal, both being based upon the trial court’s refusal to strike testimony offered by the landowners.
The tract in question lies near the city of Alma and, according to all the abstracted testimony, is best suited to be used as a residential subdivision. T. J. Van Zandt, one of the landowners’ expert witnesses, testified that the value of the tract before the taking was $125,000, “assuming all utilities except sewer were available to the property.” On cross-examination the witness admitted that he did not know what it would cost to make the utilities available to the property, since he was not an engineer. It is now insisted, in view of that admission, that the condemnor’s motion to strike Van Zandt’s testimony should have been sustained.
Upon the record we cannot sustain that contention. Van Zandt did not assume that utility lines had been installed throughout the interior of the 52-acre tract. He merely assumed that utility services had been run “to the acreage,” where they would be available to the tract. When Van Zandt so testified there was already in the record ample proof to indicate to the jury that the various utility services (except sewer lines, which the witness also excepted) were in fact available at the border of the tract on the date of the condemnation. In the light of that proof the trial court was right in refusing to strike Van Zandt’s value testimony.
The appellant’s second contention is that the court should have stricken the testimony of Christello and that of his two expert witnesses, because they all “used small lot sales to establish the value of a large tract of land containing raw acreage.”
This contention, too, must be rejected. To begin with, the land was not raw acreage in the sense that the witnesses arrived at their estimates of value by multiplying the worth of individual lots in a fictitious subdivision that existed only upon a paper plat. That method of evaluation was disapproved in Ark. State Highway Commn. v. Watkins, 229 Ark. 27, 313 S.W. 2d 86 (1958). Here the subdivision was not imaginary. From the testimony the jury was warranted in finding that Christello, at least five months before the highway department itself knew where the proposed interstate highway would be located, began in good faith to develop the tract in question as a subdivision. He spent $2,500 in having the area cleared, surveyed, and platted. He obtained estimates of cost with regard to gas and water pipe lines, ditching, and concrete streets. He sold two lots and options upon several others. Upon the proof it cannot be said that the proposed subdivision existed only on paper.
Moreover, the three challenged witnesses did not base their values solely upon the sale of small lots. We discuss only Christello’s testimony, since he was the least qualified witness of the three. Christello had lived in Alma for 30 years and had owned land within and without the city, including all the land for at least a mile along both sides of a state highway abutting the tract now in dispute. Christello had developed and sold, lot by lot, another residential subdivision that was, at its closest point, only 200 yards from the subdivision now in issue. He testified that those lots, comprising about half an acre each, sold for from $1,000 to $1,200 each. Both he and his engineer stated that the first subdivision was situated upon low land and was therefore less desirable than the second one, which Christello described without contradiction as ‘‘the best piece of land for development that there is anywhere near Alma.”
Christello’s plat of his second subdivision showed a total of 27 residential lots, but he did not attempt to arrive at a value of the tract as a whole on the basis of those lots. To the contrary, at no point in his testimony did he ever assign any value to the lots as such. Instead, he testified that the 52-acre tract as a whole had a value of $107,500, which he reduced to a valuation of $2,115 an acre. His testimony that for many years there had been no sales in the vicinity of comparable large tracts is not disputed. Although he and his two expert witnesses fixed his damages at from $45,750 to $59,500, the verdict was for only $20,000. We find in the record no error that would justify our setting the verdict aside.
Affirmed. | [
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Robert H. Dudley, Justice.
Danny Haffelder filed a complaint with the Supreme Court Committee on Professional Conduct against Sam Sexton, Jr., a Fort Smith lawyer. The alleged misconduct took place in 1983 while the Code of Professional Responsibility was in effect. However, the Committee charged Sexton under the Model Rules of Professional Conduct, which were adopted in 1985, after the alleged misconduct had occurred. After a hearing, the Committee suspended Sexton’s law license for one year. We reversed and remanded because Sexton was not charged under the rules in effect at the time of the alleged misconduct, but we stated that the Committee could proceed against him if he was properly charged. Sexton v. Supreme Court Committee on Professional Conduct, 295 Ark. 141, 747 S.W.2d 94 (1988).
The Committee then charged Sexton under DR-5-104(a) of the Code of Professional Responsibility. A hearing on the charge has been set for December 3, 1988.
Sexton, by prohibition, certiorari, or mandamus, asks us to order the Committee to follow the Standards for Lawyer Discipline and Disability Proceedings adopted by the American Bar Association; to order the Committee to deem requests for admissions admitted; and to order certain committee members to disqualify. We decline to issue a writ.
The Rules of Professional Conduct are the substantive rules governing the bar. These substantive rules are enforced by our Committee on Professional Conduct. The Committee’s procedures and substantive powers are currently governed by our Rules Regulating Professional Conduct of Attorneys at Law, adopted by Per Curiam order, 285 Ark. 488, 687 S.W.2d 118 (1985).
Prior to the J985 changes in these Rules, the Committee, by its own action, could only caution or reprimand an attorney. It could additionally proceed in circuit or chancery court to disbar an attorney. The Rules Regulating Professional Conduct then in existence provided for appeal from circuit or chancery court action, but did not mention appeal from committee action. Even so, we allowed an appeal to this Court from a committee adjudication. See Walker v. Supreme Court of Arkansas Committee on Professional Conduct, 275 Ark. 158, 628 S.W.2d 552 (1982). In 1985, the Committee was given the added substantive powers of issuing a warning or suspending an attorney from practicing law. Again, we did not expressly state by rule that a right of appeal to this court existed after a warning or suspension by the Committee. Nevertheless, such a right does exist. See Sexton v. Supreme Court Committee on Professional Conduct, 295 Ark. 141, 747 S.W.2d 94 (1988). However, it may not be exercised in piecemeal fashion. In brief, the petitioner, Sexton, will have a right of appeal to this Court from any committee action.
The petitioner asks us by prohibition, certiorari, or mandamus to direct the Committee to comply with the American Bar Association Standards For Lawyer Discipline. A writ of prohibition is not the proper procedure in this situation, since it issues only when the lower court, or adjudicative committee, is wholly without jurisdiction. See Miller v. Lofton, Judge, 279 Ark. 461, 652 S.W.2d 627 (1983). The Committee clearly has jurisdiction over attorney disciplinary matters. See Muhammed v. Arkansas Supreme Court Committee on Professional Conduct, 291 Ark. 29, 722 S.W.2d 280 (1987). Likewise, mandamus is not the appropriate remedy. The purpose of a writ of mandamus is to enforce an established right or to compel the performance of a duty. Gregg v. Hartwick, 292 Ark. 528, 731 S.W.2d 766 (1987). It is not used to control the discretion of an official. Since this Court has not adopted by rule the American Bar’s Standards For Lawyer Discipline, the Committee has discretion in the matter of whether it complies with the standards.
The writ of certiorari is issued to correct proceedings that are erroneous on the face of the record when there is no other adequate remedy. Perry v. State, 275 Ark. 170, 628 S.W.2d 304 (1982). The Committee’s scheduled hearing is not erroneous on its face; thus, certiorari is not appropriate. None of these writs are issued when appeal will provide an adequate remedy.
The American Bar Association’s standards are recommendations or guidelines from the Association for disciplinary proceedings. Some of the states have adopted them while others have not. See Survey of Lawyer Disciplinary Procedures in the United States, prepared by the American Bar Association Center for Professional Responsibility (1984). Many states, like us, have their own rules. If our rules should deprive petitioner of some constitutional right, an appeal will provide an adequate remedy, just as it did in petitioner’s last appeal.
Next, the petitioner argues that we should order the Committee to deem his requests for admissions as admitted. Again, an adequate remedy for this issue will be provided by appeal. This type of issue is regularly appealed. See, e.g., B & J Byers Trucking, Inc. v. Robinson, 281 Ark. 442, 665 S.W.2d 258 (1984).
Finally, petitioner asks us to order the committee members who participated in the original vote to suspend his license to disqualify from hearing this charge. Again, this is the type of issue which can be resolved on appeal. We regularly decide on appeal whether judges or jurors should be disqualified. See e.g., Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983).
The petition is denied.
Purtle and Glaze, JJ., dissent. | [
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Steele Hays, Justice.
This litigation began when Mr. and Mrs. Gene Lindsey, appellees, filed suit against the Bank of Evening Shade, appellant, alleging the bank had charged eighteen percent interest on an April 11, 1980 loan of $20,607.20, which they claimed was excessive under the Federal Deposit Insurance Act, and seeking judgment of twice the amount of interest paid. The bank answered that eighteen percent interest was permissible under the Depository Institution Deregulation and Monetary Control Act of 1980, Public Law 96-221, which became effective on April 1, 1980. The bank then counterclaimed to foreclose a deed of trust securing the note and encumbering the Lindsey home in Evening Shade. The case was transferred from law to equity and the Lindseys asserted the defense of usury, claiming the loan was not covered by the Monetary Control Act and, hence, void under Article 19, Section 12 of our Constitution of 1874. During trial the Lindsey complaint was dismissed for failure of proof and the foreclosure suit was tried solely on the issue of usury.
After the case was closed counsel for the Lindseys wrote the bank that they had elected to rescind the transaction under the Truth-in-Lending Act, 15U.S.C. 1601, etseq., and over the bank’s objection the Chancellor reopened the case for the limited purpose of taking proof on the rescission issue.
The evidence was generally undisputed that Mr. and Mrs. Lindsey had had two notes at the bank at ten percent interest secured by first and second mortgages on their home. The notes had been renewed several times and became due in March, 1980. There were discussions aimed at renewal and refinancing and the bank informed the Lindseys it would not renew at ten percent, but would make a new loan at eighteen percent, which it believed was permissible under the newly enacted Monetary Control Act, which became, effective April 1, 1980. Mr. Lindsey questioned the rate of interest, but nevertheless he and his wife signed a new note at eighteen percent dated April 11, 1980, equal to the amount due on the existing notes and from which the old notes were paid off. The note was secured by a deed of trust covering the Lindsey home and other properties.
The Chancellor recognized that we have upheld the constitutionality of the Monetary Control Act of 1980 in the case of McInnis v. Cooper Communities, Inc., 271 Ark. 503, 611 S.W.2d 767 (1981) but he held the loan did not come under the act because he believed it applied only to loans which originated after the effective date of the act, April 1, 1980, and not to existing loans which were merely renewed after April 1. Since he found the loan was not exempted, he held it to be usurious and void. He added that if he were wrong on the usury question, he found the bank had not given proper notice to the Lindseys of their right to rescind the transaction under the Truth-in-Lending Act. On appeal, we disagree that the note was usurious or that the bank failed to give sufficient notice to the Lindseys and we reverse.
I.
The pertinent part of the Monetary Control Act, § 501, reads:
The provisions of the constitution or the laws of any state expressly limiting the rate or amount of interest... shall not apply to any loan, mortgage, credit sale, or advance which is (A) secured by a first lien on residential real property . . . (B) made after March 31, 1980.
The Lindseys argue that theirs was not a new loan, but simply a consolidation and renewal of old loans and, therefore, not covered by the act. We find convincing authority to the contrary.
Pursuant to § 501 (F) of the act, the Federal Home Loan Bank Board is authorized to “issue rules and regulations and to publish interpretations governing the implementation of this section.” The deference that must be given such administrative rulings is stated in Ford Motor Credit Co. v. Milhollin, 444 U.S. 555 (1980). In reversing a Court of Appeals ruling that had rejected a Federal Reserve Board’s interpretation of a Truth-in-Lending provision, the Supreme Court held that, “Unless demonstrably irrational, Federal Reserve Board Staff opinions construing the Act or Regulation should be dispositive ...” Milhollin at 567.
The Federal Home Loan Bank Board has issued interpretations of the type of transaction involved in this case, and it is clear from those interpretations that on the facts of this case, the loan by the bank would qualify for exemption under the Monetary Control Act. A staff opinion interpreting the same provision of Public Law 95-161 (the temporary predecessor to Public Law 96-221) dealt with the effect of this section on renewals of short term mortgage notes which became due during the statutory preemption period. The Board stated:
In our view, a lender would not be permitted to raise the interest rate if it is already obligated to refinance the note after maturity . . . etc. If however, the lender making such a short-term loan would not have an absolute obligation to renew or refinance a note falling due during the statutory preemption period the renewal would be the making of a new loan for the purposes of Pub. L. 161. In these circumstances, a lender would be authorized to charge interest at a rate in excess of that specified by state law. 45 FR 15921, March 12, 1980.
The Board has issued opinions for § 501 of Public Law 96-221, affirming that position. (See opinions No. S 26, March 9,1981, and No. S52, September 1,1981.) We find the interpretations rational and persuasive. In this case, the loans were due in March 1980, and the bank was under no obligation to renew them. Under the above interpretation of § 501, we find the appellees’ loan qualified under the act.
The appellees also argue that the legislative history of Public Law 96-221 indicates that the purpose of the act was to provide adequate housing by creating sources to finance that housing, and was not intended for other purposes. The appellees’ loan was not used to acquire their home and thus they contend the loan would not come within the exemption. We cannot agree with that conclusion. The language in § 501 gives ho indication that the purpose for which the loan is to be used has any bearing on qualification for the exemption. The plain language of the act states the interest lirhit of a state “shall not apply to any loan...” The purpose and scope of the act as stated in 12 CFR 590.1 gives no cause for so restrictive a reading and simply states the purpose is “to ensure that the availability of [these] loans is not impeded in states having restrictive interest limitations.”
Although we have found the legislative history not to support such a narrow purpose, we need not consider the history when the language, as in this statute, is unambiguous. In H. Wetter Mfg. Co. v. U.S., 458 F.2d 1033 (1972), when the government introduced legislative history to show what Congress intended, the Court, quoting from an earlier opinion, stated:
We may not under the guise of construction, find a Congressional intent that is contrary to the clear language employed by it. Where a statute is unambiguous, it should be given effect according to its literal language. Wetter at 1035.
We find the language applying the act to “any loan” unambiguous, and find no need to consider the legislative history. The loan to the Lindseys was a first lien on real property and, as provided in the act, was exempt from the interest ceiling of ten percent under our constitution.
II.
This case was tried solely on the issue of usury. Rescission came into the case entirely as an afterthought. The Truth-in-Lending Act requires a written notice to the borrower that he has three days following any transaction which results in a mortgage on real property to notify the creditor that he elects to cancel. If the notice is not given the right to cancel continues.
During the trial the bank routinely introduced a number of documents which accompanied the transaction with the Lindseys, including a Rescission Statement which gave the required notice of their right to cancel. It was received without objection and attracted scant interest during the trial. It was a printed form with blank spaces for the appropriate dates and was proper in all respects except that it was dated April 7 and gave April 10 as the deadline for cancellation. Since the note was dated April 11,1980 and the Lindseys testified that all the papers were signed on the same day, there is an obvious discrepancy between the dates of the Rescission Statement and that of the note and deed of trust.
Approximately a week after trial, while the court was awaiting briefs on the issue of usury, counsel for the Lindseys wrote the bank to say the Lindseys had elected to rescind on the theory that the Rescission Statement was defective — it told them, in effect, that they had three days from April 7 in which to cancel and, thus, their right to cancel lapsed on April 10, the day before the transaction was entered into.
The Chancellor permitted the case to be reopened for a brief hearing and received the cancellation letter in evidence, commenting that he regarded it as neither highly material nor relevant. However, when he announced his decision in the usury issue, he added that if he was wrong on that point, he also thought the Rescission Statement amounted to no notice at all. None of the several issues relevant to rescission were dealt with in the final order, except for the denial of damages and attorneys’ fees provided for by the Truth-in-Lending Act.
On appeal, the bank argues that the Rescission Statement was sufficient, that the loans to the Lindseys were for business purposes, which the Truth-in-Lending Act exempts, and that the Chancellor erred in reopening the case for an issue not dealt with in the pleadings or the proof, except coincidentally.
We are not inclined to second-guess the Chancellor’s decision to reopen the case, as that power is necessarily broad, except to note that a complex and undeveloped issue was introduced and left largely unresolved in specific terms. There is no finding as to whether the loans were for business purposes and, therefore, exempted under the Truth-in-Lending Act, although the only proof we find is entirely consistent with the bank’s argument. Nor are the equities considered, though we have held the right of rescission under the Truth-in-Lending Act is governed by equitable principles. Nietert and Goodwin v. Citizens Bank and Trust Co., 263 Ark. 251, 565 S.W.2d 4 (1978): Turner v. West Memphis Federal Savings & Loan Association, 266 Ark. 530, 588 S.W.2d 691 (1979). In Turner we said:
A review of the federal cases decided under the Truth-in-Lending Act leads us to conclude an action to rescind is an equitable proceeding and the Court should look not only at the violations by the creditor but should consider the course of action taken by the debtor. From reading a history of the legislation it is apparent the Act was directed at loan sharks and fly-by-night operators.
However, we need not settle these issues, as we believe the Rescission Statement was not fatally defective, because it is clear the Lindseys were not misled by what amounted to a single and obvious mistake in the date. Mr. Lindsey’s testimony provides the plausible explanation for the discrepancy. He said: “We were supposed to sign that (referring to the Rescission Statement) two or three days before, but we signed them all the same day,” (p. 78) meaning April 11. Presumably the bank neglected to update the Rescission Statement and if it were at all doubtful whether the Lindseys were misled or confused because of it, then the onus of that oversight would have to rest on the bank and not on the Lindseys, but it is clear there was no misconception. “Mr. Lindsey acknowledged receiving the Rescission Statement and that he understood it. (T. p. 78):
Q. This is apparently a rescission statement that’s dated April 7, 1980. Do you have a recollection as to that?
A. Yeah, we signed this the same day as the loan.
Q. Well, the loan was signed on April the 11th, was it not?
A. We signed it on the same day.
Q. But now this advised you that you under the Federal Law have a right to cancel the transaction without penalty or obligation in three business days from the date or any later day on which all material disclosures required under the truth in lending act have been given to you. Did you understand that to be the situation in this rescission statement?
A. Yes, I understood it.
That conclusion is strengthened when the Rescission Statement itself is examined. It is in bold type with handwritten dates, and tells the Lindseys they have three days from April 7, 1980, or any later date on which all material disclosures required under the Truth-in-Lending Act have been given:
RESCISSION STATEMENT
THE BANK OF EVENING SHADE
EVENING SHADE, ARKANSAS
Notice to customer required by Federal law:
YOU HAVE ENTERED INTO A TRANSACTION ON April 7,1980 WHICH MAY RESULT IN A LIEN, MORTGAGE, OR OTHER SECURITY INTEREST ON YOUR HOME. YOU HAVE A LEGAL RIGHT UNDER FEDERAL LAW TO CANCEL THIS TRANSACTION, IF YOU DESIRE TO DO SO, WITHOUT ANY PENALTY OR OBLIGATION WITHIN THREE BUSINESS DAYS FROM THE ABOVE DATE OR ANY LATER DATE ON WHICH ALL MATERIAL DISCLOSURES REQUIRED UNDER THE TRUTH IN LENDING ACT HAVE BEEN GIVEN TO YOU. IF YOU SO CANCEL THE TRANSACTION, ANY LIEN, MORTGAGE, OR OTHER SECURITY INTEREST ON YOUR HOME ARISING FROM THIS TRANSACTION IS AUTOMATICALLY VOID. YOU ARE ALSO ENTITLED TO RECEIVE A REFUND OF ANY DOWNPAYMENT OR OTHER CONSIDERATION IF YOU CANCEL. IF YOU DECIDE TO CANCEL THIS TRANSACTION, YOU MAY DO SO BY NOTIFYING THE BANK OF EVENING SHADE AT EVEN ING SHADE, ARKANSAS, BY MAIL OR TELEGRAM SENT NO LATER THAN MIDNIGHT OF April 10,1980. YOU MAY ALSO USE ANY OTHER FORM OF WRITTEN NOTICE IDENTIFYING THE TRANSACTION IF IT IS DELIVERED TO THE ABOVE ADDRESS NOT LATER THAN THAT TIME. THIS NOTICE MAY BE USED FOR THAT PURPOSE BY DATING AND SIGNING BELOW.
I HEREBY CANCEL THIS TRANSACTION.
(Date) (Customer’s Signature)
It would require the utmost contortion in reasoning to interpret the Rescission Statement as telling the Lindseys that they have a legal right under federal law to cancel the transaction they are about to enter into, except that to do so, they must notify the Bank of Evening Shade by midnight on April 10, the day before, of their intent to cancel.
To his credit, and in spite of his stake in the outcome, Mr. Lindsey was not willing to say he thought his right to cancel had already expired when he signed the note on April 11, as he did not renounce his quoted testimony at the post-trial hearing. Mr. Lindsey’s explanation for the mistake in dates, coupled with his own assertion that he understood the Rescission Statement, convinces us it was error to disregard it. We reverse the order of the Chancellor and remand the case for appropriate orders consistent with this opinion. | [
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Richard B. Adkisson, Chief Justice.
The Calhoun County Chancery Court quieted title to certain property in appellee, Teresia Richardson, holding that adverse possession had been established against appellant, Potlatch. On appeal we affirm.
Potlatch has had record title to and has paid taxes on the 4.65 acres in question since 1941, but Doyle Hollis, now deceased, had been in actual possession of the land since 1963. Apparently, Hollis considered it to be a part of an 80 acre tract which he bought in 1963, since the 80 acre tract and the 4.65 acres were fenced in together. He sold the 80 acres in 1976, but continued to possess the 4.65 acres. He died testate in 1981, and his will provided for the sale of this property by his executrix. Appellee purchased the property from the executrix.
Appellant argues that the trial court erred in finding that Doyle Hollis had obtained title through adverse possession and, thereby, erred in quieting title in appellee. The law applicable to adverse possession is well settled. In order for adverse possession to ripen into ownership, the possession for seven years must be actual, open, notorious, continuous, hostile, exclusive, and accompanied with an intent to hold against the true owner. Strieker v. Britt, 203 Ark. 197, 157 S.W.2d 18 (1941). The party claiming by adverse possession has the burden of proof to establish all of the essential elements of adverse possession. Potlatch Corp. v. Hannegan, 266 Ark. 847, 586 S.W.2d 256 (1979). And, in Culver v. Gillian, 160 Ark. 397, 254 S.W. 681 (1923) we stated:
[T]o constitute an adverse possession, there need not be a fence or building, yet there must be such visible and notorious acts of ownership exercised over the premises continuously, for the time limited by the statute, that the owner of the paper title would have knowledge of the fact, or that his knowledge may be presumed as a fact. In other words, it has been well said that if the claimant ‘raises his flag and keeps it up,’ continuously for the statutory period of time, knowledge of his hostile claim of title may be inferred as a matter of fact.
Here, testimony revealed that Hollis used the property in question as his “camp.” Shortly after he bought the 80 acres, he moved a small building onto the 4.65 acres and gradually turned it into a house: he added two rooms, electricity, and a butane tank for fuel; he put down a well, built a barn, and a hog pen; he kept hogs and cows and a horse there. Sometime after 1976 he added another room and a bathroom with a septic tank. He and his wife had a garden there, and stayed on the property during gardening season to can and freeze vegetables more than they stayed at home. There was testimony indicating that the property has been enclosed by a fence for well over the seven year statutory period.
Based upon the above evidence the chancellor found that Hollis acquired title to the land by being in actual, open, notorious, adverse, hostile, continuous, exclusive possession for a time exceeding seven years, and we cannot say that this finding is against the preponderance of the evidence.
Appellant also argues that the trial court erred in finding that the executrix of the Hollis estate could sell the decedent’s property without complying with the Probate Code. However, we do not reach this argument because no defect in the conveyance from the estate of Hollis to appellee could have any effect on appellant’s claim to title. Nor does the fact that the property in question may overlap two feet onto an adjacent landowner’s property affect appellant’s claim to the title. We find no error.
Affirmed. | [
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Ed. P. McFaddiN, Justice.
This is a dispute between the children of 0. C. Hayes, deceased. Appellants are the two children of 0. 0. Hayes by his first wife, Mrs. Nancy Hayes. Appellees are the three children of 0. C. Hayes by his second wife, Mrs. Dasser Hayes.
Appellants, as plaintiffs in seeking partition, alleged that 0. C. Hayes died intestate, the owner of a tract of 61% acres in Union County, Arkansas; and that appel-lees and appellants each owned one-fifth of said land. Appellees, as defendants, claimed that the tract of 61% acres was not owned by 0. C. Hayes at the time of his death, but was then — and for many years had been— owned by their mother, Mrs. Dasser Hayes, the second wife of 0. C. Hayes. In their amended answer, appel-lees also prayed that the Court correct the description in certain of the deeds under which they claimed title. Each side pleaded limitations, laches, and stale demand.
Upon trial in the Chancery Court the following facts were established: •
(1) — That the appellants are the two children of 0. C. Hayes by his first wife, Mrs. Nancy Hayes, who died in April, 1896; that 0. C. Hayes married his second wife, Mrs. Dasser Hayes, in January, 1898; that appel-lees are the three children of 0. C. Hayes by his second wife; that O. C. Hayes died, intestate, in October, 1928; that Mrs. Dasser Hayes died, intestate, in June, 1948; and that this suit was filed in July, 1948;
(2) — That O. C. Hayes was one of the children of W. N. Hayes; that since 1920 there has been of record a general warranty deed dated January 14, 1904, wherein W. N. Hayes and wife conveyed 61% acres to “O. C. Hays and Dasser Hays.” We will refer to this as the “1904 deed.” The description of the land as therein contained is:
“The Southeast Quarter of the Northwest Quarter, and the North Half of the Southwest Quarter of the Northwest Quarter, and one and one half acres lying in the Northwest corner of the Southeast Quarter of the Northwest Quarter, Sec. 21, Twp. 16, Range 18, containing sixty-one acres and a half more or less.” (Italics our own.)
(3) — That since 1920 there has been of record a general warranty deed dated September 5, 1912, wherein O. C. Hayes attempted to convey to Dasser Hayes the 61% acres described the same as in the 1904 deed, siopra. This deed from O. C. Hayes to Dasser Hayes will he hereinafter referred to as the “1912 deed.”
(4) — That there are also of record six quitclaim deeds, each dated in 1924, from grantors, who with O. 0. Hayes were all the heirs of W. N. Hayes; that the grantee in each of these six deeds is “O. C. Hays.” We will refer to these six deeds as the “1924 quitclaim deeds.” Each of them definitely describes the 61% acres involved in this suit as follows :
“The Southeast Quarter of the Northwest Quarter and all that part of the Southwest Quarter of the Northwest Quarter lying North and East of the Missouri Pacific Railroad right of way; all in Section 21, Township 16 South, Range 15 West, and álso one and one-half (1%) acres lying in the Northwest corner of the Northeast Quarter of the Southwest Quarter of said section, described as beginning at the Northwest corner of said Northeast Quarter of the Southwest Quarter of Section 21, Township 16 South, Nango 15 West, running thence West along the North boundary line of said forty acre tract 383 feet, thence South 14 degrees and 2 minutes West 248.8 feet to the Missouri Pacific Railroad right of way, thence Northwest along said right of way to the West lino of said forty acre tract, thence North to point of beginning.”
(5) — That after the 1920 discovery of oil near the 61% acres, O. C. Hayes executed at least six leases or royalty instruments to various third parties at dates between 1921 to 1924; and that Mrs. Dasser Hayes joined in the execution of each of these instruments; and also relinquished dower and homestead in each. These will be referred to as the “1921 to 1924 mineral instruments.”
Prom the foregoing, it will be observed that the lands described in the 1904 deed and 1912 deed, supra, are shown in Range-IS West, whereas the lands are in fact situated in Range 15 West, as described in the 1924 quitclaim. deeds. Also, it will be observed that the 1% acre tract is otherwise misdescribed in the 1904 deed and the 1912 deed. But the evidence shows that W. N. Hayes owned the lands in Range 15 West, as correctly described in the 1924 quitclaim deeds; and that the 61% acres so described were the lands all the time in the possession of the Hayes family.
The Chancellor found that under the 1904 deed O. C. Hayes and- Dasser Hayes took possession of the lands described in the 1924 quitclaim deeds; that the 1904 deed was intended to describe such lands; that the 1904 deed created an estate by entirety in O. J3. Hayes and Dasser Hayes; and that the 1924 quitclaim deeds were designed to, and did in fact, correct the mistake contained in the description in the 1904 deed. On the basis of such findings, the Chancery Court entered a decree for the defendants. The plaintiffs, as appellants, challenge that decree and present the following points:
I. Effect of the 1924 Quitclaim Deeds. Appellants argue that the effect of these.deeds was to vest the title in O. C. Hayes, as he was tlie only grantee named in them. It is claimed that 0. C. Hayes paid his brothers and sisters approximately $3,000 for these deeds. If he made such payments, it was prompted by either his generosity, the avarice of his relatives, or his desire to accomplish quick clarification rather than the delay of a litigated clarification. But regardless • of how much O. C. Hayes paid for the 1924 quitclaim deeds, we agree with the Chancery Court that the deeds were merely curative. Ever since the 1904 deed O. C. Hayes and Dasser Hayes had been in possession of the 61 % acres as tenants by the entirety. The 1904 deed misdescribed the lands, but it is clear that it was the intention of W. N. Hayes to describe, in the 1904 deed, the lands which his heirs described in the 1924 quitclaim deeds.
By naming himself as the sole grantee in the 1924 quitclaim deeds, O. C. Hayes could not divest his wife, Dasser Hayes, of her interest in the lands of which she was then in possession. This statement is true for at least two reasons: (a) O. C. Hayes and Dasser Hayes had taken possession of the lands as tenants by the entirety ; and any improvement in the title accomplished by one entirety tenant enured to the benefit of the other entirety tenant (see Brittin v. Handy, 20 Ark. 381, 73 Am. Dec. 497; Clements v. Cates, 49 Ark. 242, 4 S. W. 776; Jones’ "Arkansas Titles,” § 200); and (b) O. C. Hayes, by general warranty deed in 1912, had attempted to convey to Dasser Hayes all the title to the 61% acres which had been deeded to “O. C. Hays and Dasser Hays” by the 1904 deed. Whether the 1912 deed was the correct way for one entirety tenant to convey his interest in the land to the other entirety tenant is a question that we need not discuss because, even if the entirety relation had not existed, the effect of the general warranty clause in the 1912 deed would be to pass to Dasser Hayes, as grantee, all the title subsequently acquired by O. C. Hayes. Such is the effect of our "after-acquired title” Statute, as contained in § 50-404 Ark. Stats, of 1947.
So we conclude that the 1924 quitclaim deeds did not vest sole title in O. C. Hayes; hut on his death the title of the 6iy2 acres passed to Dasser Hayes, his wife, named as entirety tenant in the 1904 deed, even if the 1912 deed had not passed title.
II. Effect of the 1921 to 1924 Mineral Instruments. Appellants contend that Dasser Hayes recognized O. C. Hayes as the fee owner of the lands, rather than merely as the entirety owner with her, because in each of the six “1921 to 1924 mineral instruments” Dasser Hayes relinquished her dower ánd homestead; and appellants claim that by so doing she recognized him as the exclusive owner of the fee simple title. Most, if not all, of these mineral instruments were executed before O. C. Hayes had received the 1924 quitclaim deeds, so appellants’ argument, in some respects, lacks factual basis.
Furthermore, the transcript before us shows that in each of the 1921 to 1924 mineral instruments Mrs. Dasser Hayes joined as grantor in addition to relinquishing her dower and homestead. Evidently Mr. and Mrs. Hayes thought when they executed these mineral instruments that the signature of the husband was desirable in the conveyance by a wife of her own land. Furthermore, since this land had originally been acquired by entirety in 1904, the attorney passing the title for the mineral grantees might well have desired the signature of O. C. Hayes to accompany that of Mrs. Dasser Hayes, in order to dispose of any question of entirety title.
"We refuse to say that Mrs. Dasser Hayes lost to her husband her interest in the land by allowing him to sign with her the 1921 to 1924 mineral instruments; so we reject appellants’ argument on this point.
III. Limitations, Laches, Delays, and Loss of Evidence as a Bar Against Appellees. The Chancery Court, by its decree in this cause, reformed the 1904 deed from "W. N. Hayes to O. C. Hayes and Dasser Hayes so that the deed described the lands actually involved in this suit. Appellants, in insisting that the Court was in error, point out (a) the death of the principal parties to the convey- anee; and (b) the death of the scrivener of the 1924 quitclaim deeds.
As previously stated, we agree with the Chancellor that the 1924 quitclaim deeds were designed to and did correct the erroneous description in the 1904 deed, and that it was unnecessary for the decree in.this cause to reform the description in the 1904 deed. Furthermore, we agree with the Chancellor that if limitations, laches, delay, and loss of evidence were available to either side in the present controversy, these defenses would enure to the appellees rather than to the appellants: because the appellees are. in possession and need no reformation; and furthermore, O. C. Hayes died in 1928; and appellants made no claim to any of the lands until 1948,' after the death of Mrs. Dasser Hayes.
IV. Defect of Parties as a Bar to Reformation. Appellants further insist that there could be no reformation of the 1904 deed until all of the heirs of W. N. Hayes were made parties to this suit, and cite Gibson v. Johnson, 148 Arle. 569, 230 S. W. 578, and Cleveland v. Biggers, 163 Ark. 377, 260 S. W. 432.
We agree with the appellants that, generally, before an instrument be reformed, the grantor, or his heirs, should be parties to the litigation. But in the case at bar appellants’ present insistence — even if presented to the Chancery Court below so as to be available on appeal— is a contention which must be denied because the facts in the present case distinguish it from the cited cases. These facts are :■ that all the other heirs of W. N. Hayes executed to O. C. Hayes the six “1924 quitclaim deeds,” so whatever interest W. N. Hayes originally owned passed to O. C. Hayes by the 1924 quitclaim deeds. In short, the 1924 quitclaim deeds had already accomplished the necessary reformation.
We have before us, in the present suit, all the heirs of O. C. Hayés; and the effect of the decree is to hold that O. C. Hayes, in acquiring the 1924 quitclaim deeds, did so as trustee for the use and benefit of Dasser Hayes, to whom he was obligated not only as tenant by the entirety, but also under the general warranty clause of the 1912 deed; and this interpretation disposes of appellants’ contention concerning defect in parties.
Y. Title to the “Home Place” Containing 1% Acres. When appellants filed their original complaint, they claimed that each of them owned only one-fifth interest in the entire 61% acres. Later, by amendment, appellants claimed that they were the sole owners of the 1% acre tract called the “home place,” and specifically described by metes and bounds in the 1924 quitclaim deeds. Appellants’ claim to the “home place” is based on the testimony of witnesses to the effect that W. N. Hayes gave the 1% acre tract to his daughter-in-law, Mrs. Nancy Hayes (the mother of the two appellants).
There is evidence which indicates that Mrs. Nancy Hayes was ill, and W. N. Hayes built a house for her on the 1 y2 acre tract, and that she occupied it until her death. But on the evidence in this record, we cannot find and decree a parol conveyance of the fee title from W. N. Hayes to Nancy Hayes. The conclusion is that W. N. Hayes built the house on the 1% acre tract, and allowed his daughter-in-law, Mrs. Nancy Hayes, and his son, O. C. Hayes, to occupy the house during all the lifetime of Mrs. Nancy Hayes, who died in 1896; that in 1898 0. C. Hayes married Mrs. Dasser Hayes and continued to live in the same house; but that the ownership of the land remained at all times in W. N. Hayes until he made the 1904 deed to “O. C. Hays and Dasser Hays.”
Affirmed.
In some instances, the name is spelled “Hays”, but it is impliedly conceded that the identity of the parties is the same, regardless of the spelling of the name.
The recent case of Stephens v. Ledgerwood, 216 Ark. 404, 226 S. W. 2d 587, was one in which there was a mistake as to the township and range.
See Parrish v. Parrish, 151 Ark. 161, 235 S. W. 792, Jones’ “Arkansas Titles,” § 1129. | [
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Robert H. Dudley, Justice.
Appellant was charged with the crimes of kidnapping and attempted rape. The trial court appointed two attorneys to represent him. One had very little experience in the practice of criminal law while the other was described by the trial judge as “one of the most capable criminal lawyers in the whole area, both Arkansas and Texas.” The attorney with limited criminal law experience visited appellant in jail once and then the experienced criminal law practitioner solely assumed appellant’s defense. In chambers on the morning of trial, while the panel was in the courtroom, appellant filed a handwritten motion requesting that the lawyers appointed be dismissed alleging that: (1) the attorney handling his defense was related to a deputy sheriff; (2) he and the appointed attorney had a personality conflict; and (3) the attorney had visited him in jail only three or four times with the longest visit being 20 to 25 minutes. At the hearing conducted on appellant’s motion he additionally argued that material witnesses had not been subpoenaed, that he wanted a different attorney appointed for him, and that he wanted a continuance. The proof showed that the attorney was not related to the deputy sheriff; there were no material witnesses who should be subpoenaed; and the appellant, who has a long criminal record, was the principal cause of the personality conflict. The attorney stated that appellant had advised him that he wanted to represent himself. The appellant’s testimony regarding the length of time of the visits by the attorney was substantially different from that alleged in his handwritten petition as he testified that the total time was. only 25 minutes. He admitted, however, that he had also talked to the attorney prior to trial by telephone. The attorney, whom the judge termed “most capable” stated that he was as prepared as possible because he had contacted all of the witnesses suggested by appellant but none of them would be beneficial to the defense. He stated that he had spent hours going over the prosecutor’s file and did not know of any additional preparation to be conducted.
The trial court repeatedly advised appellant that he could either be represented by his court appointed attorney or represent himself. The appellant refused to make that choice, demanding that the court appoint him a néw attorney and grant him a continuance. At one point appellant stated that upon being granted a continuance, he would retain another attorney. However, after being reminded of his sworn affidavit of indigency he stated he wanted a continuance and the appointment of another attorney. The trial judge then ordered the trial to proceed with appellant representing himself and the appointed attorney sitting at the counsel table to advise him. The jury found appellant guilty on both charges and fixed his sentence at forty years for attempted rape and fifty years for kidnapping. The trial judge assessed the sentences consecutively. Jurisdiction is in this Court because of the length of the sentences. Rule 29 (1) (b). We affirm.
Appellant contends that the trial court erred in forcing him to represent himself and denying a continuance. We find no merit in the argument.
The trial judge did not abuse his discretion in refusing to appoint another attorney. Competent counsel had been appointed, the trial had been scheduled and the jury had been empaneled. Once these factors have occurred, the trial judge, in deciding whether to appoint a new attorney, must also consider the need for orderly court administration and the public’s interest in a suitably prompt trial. Appellant was thoroughly acquainted with the court system, the nature of the charges against him and his rights. There is no indication he was incompetent. There was no valid reason given for dismissing appointed counsel. Very few, if any, defendants could be brought to trial against their will if a “personality conflict” with an appointed attorney was a valid cause for dismissal of an attorney. The trial court’s requirement that appellant either allow the appointed attorney to represent him or represent himself was proper under the circumstances. See Burton v. State, 260 Ark. 688, 543 S.W.2d 760 (1976).
Similarly, the question of whether a continuance should be granted is a matter of the trial judge’s discretion. Golden v. State, 265 Ark. 99, 576 S.W.2d 955 (1979). The burden is on the appellant to show there has been an abuse of that discretion. Cotton v. State, 265 Ark. 375, 578 S.W.2d 235 (1979). Certainly, every denial of a request for more time does not violate due process or constitutional mandates. Ungar v. Sarafite, 376 U.S. 575 (1964). There are no simple mechanical tests for testing the trial judge’s exercise of discretion. An examination must be made of the facts of each case. Here, an attorney was supplied for appellant because of his indigency. He then asked for a continuance to retain an unnamed attorney. Upon being reminded of his sworn affidavit of indigency he asked for appointment of a different, but still unnamed, attorney. Yet, there was no reason to appoint a new attorney. The alleged relationship of his appointed attorney and a deputy sheriff proved to be false. Appellant could remember the name of only one of the alleged material witnesses who had not been subpoenaed, and a so-called alibi witness was contacted by telephone but was unable to testify to appellant’s location on the date of the crime. The court had appointed a competent attorney, skilled in the practice of criminal law, to defend. The request for new counsel may have been made solely for the purpose of obtaining a continuance. It was not made until the panel of petit jurors was waiting in the courtroom. Against this factual background we cannot say the trial court abused its discretion in denying the motion for a continuance.
Appellant contends that the trial court erred in instructing the jury to fix punishment under the habitual offender statute in effect on the date of the commission of the crime rather than the one in effect on the date of the trial. The trial court was correct. Punishment is prescribed by substantive rather than procedural law. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981). The substantive law to be applied is the law in effect on the date of the commission of the crime. Smith v. State, 277 Ark. 64, 639 S.W.2d 348 (1982).
Appellant’s next argument is that the trial court committed error in refusing to grant a mistrial when a witness stated that the appellant had previously been in prison. During appellant’s cross-examination of a State’s witness the following took place:
A. You came — some guy brought you and you called from a apartments, the Robindale Apartments.
Q. Robindale Apartments?
A. That’s right you called.
Q. Do you remember what I was doing at Robindale Apartments?
A. Yes, you went there becuase you had the address of a girl that I had gave you when you was in the penitentiary.
BY MR. BERRY:
Objection, Your Honor, I ask for a mistrial.
BY THE COURT:
Overruled. You’re the one asking the questions.
BY MR. BERRY:
I asked for the address and no more.
BY THE COURT:
You asked what he was doing there. Overruled. Go ahead.
Later appellant recalled the same person as his own witness. The witness testified that a photograph used to identify appellant was taken when the two were together at F.C.I. On cross-examination by the State the witness stated that F.C.I. means “federal correctional institution.” Appellant contends that the court again erred in refusing to grant a mistrial.
Appellant personally conducted the witness examination. He knew that he had served part of a sentence in a correctional institution with the witness. Yet, in both instances, he opened up the line of questioning which invited the response given. One who opens up a line of questioning or is responsible for error should not be heard to complain of that for which he was responsible. Kaestel v. State, 274 Ark. 550, 626 S.W.2d 940 (1982). In addition, the trial court is granted a wide latitude of discretion in granting or denying a motion for mistrial and we do not reverse except for an abuse of that discretion or manifest prejudice to the complaining party. Hill v. State, Tib Ark. 71, 628 S. W.2d 285 (1982). The trial court did not abuse its discretion in refusing to grant a mistrial.
Appellant next contends the evidence is insufficient to support the verdict of guilty for attempted rape. He argues that a person commits a criminal attempt of a crime only when he engages in conduct which constitutes a substantial step in a course intended to culminate in the commission of an offense. See Ark. Stat. Ann. § 41-701 (Repl. 1977). He contends that there was no touching in this case and therefore there was no substantial step toward the commission of the crime of rape.
The appellant had two women in his car. They were on a gravel road in a rural area of Miller County. Appellant pulled a knife from his boot and told the two women he would not hurt them if they behaved. He stated, “I’m just going to take you out in the woods and... [have intercourse with] both of you.” The women pleaded for him not to hurt them but he responded, “If you don’t shut up I am going to hurt you.” With the knife in his hand he told them to take their clothes off. The women took their clothes off and he directed them to put their outer clothes back on and put their underclothing under the car seat. Appellant then forced the women to walk into the woods. After a struggle they escaped. This testimony is more than sufficient for the jury to find that appellant had taken a substantial step intended to culminate in the offense of rape.
Appellant finally contends that the verdict forms were improper and that the conviction for both rape and kidnapping constitutes double jeopardy. However, neither issue was raised below.
In Ply v. State, 270 Ark. 554, 606 S.W.2d 556 (1980), we refused to consider an assertion of error in a verdict form raised for the first time on appeal. There we stated as follows:
[A] defendant could raise an objection to the verdict form at the time the verdict is rendered, at the time of sentencing or by motion for new trial. We made it quite clear in Goodwin [v. State, 263 Ark. 856, 568 S.W.2d 3 (1978)] that we would not thereafter consider an assertion of error in a verdict form that had not been raised in the trial court, in some manner, without adequate reason for the failure being shown.
Ply v. State, 270 Ark. at 560.
Likewise, the issue of double jeopardy was not raised at the trial level. In Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982), we stated that we do not consider this issue when raised for the first time on appeal except in death cases. Therefore, we do not consider the arguments about the verdict form and double jeoprady.
Affirmed. | [
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MiNor W. Millwee, Justice.
Appellant, Matthew Ezell, was convicted by a jury of murder in the first degree and bis punishment fixed at death. He has appealed from the judgment rendered in accordance with the jury’s verdict.
The testimony tends to establish the following facts: L. J. Wood lives in the Jacksonville Community in Mississippi County. About 7:30 o’clock Sunday morning, April 24,1949, Jimmie Wood, son of L. J. Wood, went to his father’s pasture to round up some horses. As he crossed a levee which runs through the pasture, he heard some dogs barking. Upon investigation he discovered the body of a young Negro girl lying near the bottom of the liver side of the levee. He returned home and called Cliff Cannon, deputy sheriff, who examined the body and summoned the coroner and sheriff.
The deceased child’s mother, China Flowers, and grandmother, Alice Gray, appeared at the scene and identified the eight-year-old child. A coroner’s jury was empanelled and an inquest held that afternoon and completed the next day.
Appellant was at that time living in a-tliree-room hou.se on the Bryant farm with Alice Gray, China Flowers and her five minor children and was employed as a farm laborer. The house was located about 900 feet from the place where the child’s body was found. About a year before appellant had lived with Alice Gray for about two or three months at Crawfordsville, Arkansas, and appeared at the Flowers home in Jacksonville about four days prior to the child’s death.
The child was sleeping with her six-year-old sister when China Flowers retired about 11 o’clock Saturday night. Alice Gray slept in another bed in the same room with two of the children. China Flowers slept with her youngest child in an adjoining' room in which appellant also slept on a cot. Alice Gray returned from a visit at the home of a sick neighbor late Saturday night and retired in the dark, explaining that there was no burner in the oil lamp. Appellant came in some time later and was asleep on the cot. when China Flowers discovered that the child was missing shortly after sunrise Sunday morning.
Appellant was questioned by the deputy sheriff at the house .about noon Sunday and taken into custody on suspicion of murder, hie was present at the coroner’s inquest the next morning and testified in detail how he had taken the sleeping child from her bed, choked her to death and carried her to the place where the body was found. Prior to the inquest appellant had voluntarily made similar statements to the deputy sheriff and coroner. In each of the statements he said that Alice Gray had suggested that he “get rid” of the child, but that she had given no reason therefor; and that she went with him to the levee and directed him where to place the body. He later voluntarily retracted this part of the statement and*said he had implicated the child’s grandmother because he thought it might make his punishment lighter.
Appellant interposed the defense of insanity. He was committed to the State Hospital for examination and observation on August 26, 1949, and discharged on September 26, 1949. Hr. Oscar Kozberg, assistant superintendent of the hospital testified in detail as to the physical and mental examination and stated that in his opinion appellant was sane at the time of the examination and at the time the alleged crime was committed. He stated that appellant was normal physically; that the tests for syphilis were negative; that appellant was able to work simple problems in arithmetic; and that he found no evidence of hallucinations or other signs of mental incompetency.
Dr. P. W. Turrentine, a general practitioner, testified on behalf of appellant after talking with him about one and one-half hours two days before the trial. Although he would not say that appellant was insane, nor that he did not know the difference between right and wrong, he disagreed with Dr. Kozberg’s conclusion that appellant was without psychosis. It was his opinion, based on the conversation, that appellant had mental aberrations, was highly illogical and unable to place his experiences as to time and place. However, appellant told Dr. Turrentine that he was drinking on the night in question and was taken home by some associates; that after going to bed he got up and took the sleeping child from her bed and carried her to a table where he choked her and attempted to have sexual relations with her and then choked her some more until she died. It was the doctor’s impression that appellant’s conduct was motivated by an insatiable appetite for alcohol which in turn caused an irresistible sexual urge and compulsion to kill.
The first assignment of error in the motion for e new trial is as follows: “There was no corroborating evidence by the State of Arkansas to prove that a crimf had been committed in this cause, except the testimony and confession of the defendant, Matthew Ezell, which was not made in open court.” Our statute (Ark. Stats. 1947, § 43-2115) provides that an extrajudicial confession of the defendant must be corroborated by proof of the corpus delicti. It was suggested by the state in the oral argument that the confession of appellant at the coroner’s inquest was a judicial confession, that is, made in open court, and, therefore, sufficient to sustain a conviction without corroboration. We find it unnecessary to determine this question. Although there is authority that may be said to support the state’s contention, we will assume for the purpose of this opinion that the confession at the coroner’s inquest was quasi-judicial and as falling under the rule applicable to extrajudicial confessions. See Wharton’s Criminal Evidence (11th Ed.) Vol. 2, p. 967._
We have held that the extrajudicial confession of the defendant accompanied by proof that the offense was actually committed by someone will warrant his conviction. Melton v. State, 43 Ark. 367. In construing the statute in Burrow v. State, 109 Ark. 365, 159 S. W. 1123, the court said: “Under the above statute, where the offense charged is shown by other evidence to have been committed, then the party charged may be convicted upon proof of his confession, although made out of court; and where the offense is shown by other evidence than that of the accused’s confession out of court to have been committed, then his confession will be sufficient to warrant his conviction, whether there is any other testimony tending to connect him with the crime or not. ’ ’
In Harshaw v. State, 94 Ark. 343, 127 S. W. 745, Judge Wood, speaking for the court, said: “It is not essential that the corpus delicti be established by evidence entirely independent of the confession, before the confession can be admitted and given probative force. The confession may be considered in connection with other evidence tending to establish the guilt of the defendant. But, if there is no other evidence of the corpus delicti than the confession of the accused, then he shall not be convicted alone upon his confession. Hubbard v. State, 72 Ark. 126, 91 S. W. 11; Meisenheimer v. State, 73 Ark. 407, 84 S. W. 494.” See also, Russell v. State, 112 Ark. 282, 166 S. W. 540.
In the celebrated case of Edmonds v. State, 34 Ark. 720, this court approved the following statement from Burrill on Circumstantial Evidence: “A dead body, or its remains, having been discovered and identified as that of the person charged to have been slain and the basis of a corpus delicti being thus fully established, the next step in the process, and the one which serves to complete the proof of that indispensable preliminary fact is, to show that the death has been occasioned by the criminal act or agency of another person. This may always be done by circumstantial evidence, including that of the presumptive kind; and for this purpose a much wider range of inquiry is allowed than in regard to the fundamental fact of death, and all the circumstances of the case, including’ facts of conduct on the part of the accused, may be taken into consideration.” See, also, Hall v. State, 209 Ark. 180, 189 S. W. 2d 917.
The evidence in the case at bar is that the child was in good health prior to her death. When her body was found the feet were crossed and the child’s clothing was wrapped tightly about her knees. There was blood in the corners of her mouth and on her tongue and it appeared that she had chewed her tongue. The body was not examined by a physician and there were no other marks found by the deputy sheriff who made the examination.
The deputy sheriff testified that, when appellant did not come with the others to the place where the body was found, he went to the Flowers house about noon and asked appellant if he knew that the girl had been found and he stated that he did. When asked why he didn’t come up there, he stated that he was out all night, just sleepy and wanted to rest awhile. Appellant was sober and also told the officers that the little girl was “bad to walk in her sleep.”
We conclude that the jury was warranted in finding from the facts and circumstances, independent of the confession, that the child did not die a natural death but was choked to death by someone. Hence, there was sufficient evidence to establish the corpus delicti and corroborate the confession. It is, of course, to be conceded that a stronger case might have been made if a physician had been summoned and expert testimony used.
The next assignment of error is that the court improperly admitted the confession of appellant made at the coroner’s inquest. Before giving his testimony at the inquest appellant was questioned by the deputy prosecuting attorney as follows: “Q. Matthew, we are investigating here, before a coroner’s jury, the death of Ernestine Harris. Now, if you want to testify and give us a statement of what you know about this case you may do so, but it is my duty to warn you before you make any statement, that it can be used against you in the event you are tried for murder in this case. Now, if you make a statement yon will do so voluntarily; of yonr own free will; without any threats of punishment; with no use of force and with no promise of leniency if and when you are tried. It is also my duty to advise you that if you want to get a lawyer you can get a lawyer to advise yon. You understand what I am telling you? A. Yes. Q. Now, with that understanding, do you now want to make a statement? A. Yes, sir, I do. Q. You want to tell us what you know about the case? A. Yes, I want to tell you what I know about the case. Q. Now, one other question I want to ask you before you make this statement: Have you suffered in any way from mistreatment over at the jail, or mistreatment by any of the officers? A. No, sir.” The appellant then explained and demonstrated how he choked the child to death by use of his fingers on her throat and his hand over her throat and his hand over her nose and mouth. He also related the route he took in carrying her to the spot where the body was found.
We have held in a number of cases that admissions or voluntary statements of the defendant before a coroner’s inquest are admissible in evidence on his trial. Cole v. State, 59 Ark. 50, 26 S. W. 377; Timer v. State, 110 Ark. 251, 161 S. W. 195; Dunham v. State, 207 Ark. 472, 181 S. W. 2d 242; Cooper v. State, 215 Ark. 732, 223 S. W. 2d 507. In the Dunham case the defendant’s appearance at the inquest was involuntary and wc approved the following statement of the rule in 22 (1 J. S., Criminal Law, § 733: “Provided they were made voluntarily, admissions by accused at a coroner’s inquest may be received against him. The fact that accused was subpoenaed, or the equivalent thereof, to appear at the coroner’s inquest does not render his statements thereat inadmissible against him on a subsequent trial, if such statements were, in fact, voluntarily made. ’ ’ Under the undisputed facts in the instant case the confession was properly admitted in evidence.
The next assignment is that the court erred in refusing to give certain instructions requested by appellant. Three of the nine requested instructions would have told the jury that a specific intent to kill is an essential ele ment of murder, either in the first or second degree. The court properly instructed the jury that appellant could not be convicted of murder in the first degree unless he had the specific intent to kill. A specific intent to kill is not necessary to constitute the crime of murder in the second degree. Ballentine v. State, 198 Ark. 1037, 132 S. W. 2d 384. The matters contained in other instructions requested by appellant were fully covered in those given and the court is not required to multiply its instructions on a particular issue. Wallin v. State, 210 Ark. 616, 197 S. W. 2d 26. The court gave instructions, which we have repeatedly approved, covering the defenses of drunkenness, insanhy and all other issues presented by the testimony.
The last three assignments of error question the sufficiency of the evidence to support the verdict. In this connection it is argued that there is no evidence that the killing was malicious or that it was done after deliberation or premeditation; and that, under the testimony, appellant was not mentally responsible for his acts. When considered in the light most favorable to the state, the evidence was sufficient to show implied, if not actual, malice and there was also sufficient evidence of premeditation and deliberation -to support the verdict. The state is not bound to prove a motive for the killing and the absence thereof is only a circumstance to be considered with other facts and circumstances in determining guilt or innocence. Hogue v. State, 93 Ark. 316, 130 S. W. 167.
As previously indicated, the evidence as to appellant’s sanity is in dispute. Appellant’s mother testified that he had been “half-minded” since he suffered a spell of sickness in 1931, but there is little evidence of specific acts or conduct to substantiate her conclusion. She admitted that appellant was able to hold good jobs and stated that he would do “funny things” and had “strange ways” when drinking. Some lay witnesses described appellant as being of “average mentality” while others indicated that his mental competency was below normal. We have held that mere mental weakness or the fact that one has a mind below normal is insufficient to show insanity, and does not exempt him from re sponsibility and punishment for his criminal acts. Jones v. State, 213 Ark. 863, 213 S. W. 2d 974. The evidence is sufficient to support the jury’s conclusion on the question of appellant’s sanity.
We are also asked to reduce the penalty from death to life imprisonment, but the evidence does not, in our opinion, warrant the substitution of our judgment for that of the jury in fixing the punishment, if it be conceded that we have such power.
We find no prejudicial error and the judgment of the trial court is, therefore, affirmed.
Dunaway, J., dissents.
Skaggs v. State, 88 Ark. 62, 118 S. W. 346; Ex parte Anderson, 55 Ark. 527, 18 S. W. 856. | [
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Robert H. Dudley, Justice.
This is a tort suit involving a collision between a car and a horse. David Sanford and Gayle Sanford, the defendants below, own a pasture. On October 5, 1989, David Sanford was keeping three of his horses in the pasture, which was some distance from the Sanfords’ home. The grass in the pasture was short in October, and each day the Sanfords drove their pickup truck from their home to the pasture to supplement the horses’ feed with both hay and grain. The pasture is enclosed by a relatively new fence that has fenceposts made of steel. The gate is a metal panel gate that has a cross support. A chain with two snaps is attached to the gate so that it can be secured when it is closed. The horses had never escaped from the pasture. David Sanford testified that between five and six o’clock on the evening of October 4, the evening before the accident, he, his wife Gayle, and his daughter drove to the pasture to feed the horses. He testified that after they fed the horses, his daughter latched the gate, and he checked it to be sure that it was securely latched. It was securely latched, and they drove home.
Shortly after 6:30 the next morning, the gate had been opened somehow, and the horses were out of the pasture and on the adjacent roadway. The plaintiff was driving her car along the road and collided with one of the horses. As a direct result of the collision, the plaintiff suffered personal injury, as well as property damage to her car.
The plaintiff filed suit against both defendants and pleaded that they had been negligent in “permitting a horse to run at large” and in “creating a public nuisance.” At trial, only two witnesses testified, plaintiff Ziegler and defendant David Sanford. Their testimony is set out above. Although the record does not include the instructions given by the trial court, it seems clear enough from the comments of the attorneys, as well as the comments of the trial court, that the jury was instructed on ordinary negligence. The jury returned a verdict for the plaintiff. The defendant appeals. We reverse and dismiss.
The plaintiff had the burden of proving that she sustained damages, that the defendants were negligent, and that such negligence was the cause of her damages. Fuller v. Johnson, 301 Ark. 14, 781 S.W.2d 463 (1989). There is no question that plaintiff sustained damages. The issue is whether there was substantial evidence of the defendants’ negligence. Negligence is the failure to do something which a reasonably careful person would do. A negligent act arises from a situation where an ordinarily prudent person in the same situation would foresee such an appreciable risk of harm to others that he would not act or at least would act in a more careful manner. White River Rural Water Dist. v. Moon, 310 Ark. 624, 839 S.W.2d 211 (1992). The standard of review on appeal of a jury’s verdict is whether the verdict is supported by substantial evidence, giving the verdict the benefit of all reasonable inferences permissible under the proof. Ferrell v. Whittington, 271 Ark. 750, 610 S.W.2d 572 (1981).
In this case, giving the verdict the benefit of all reasonable inferences permissible under the proof, we cannot say there was any evidence whatsoever of negligence by either David or Gayle Sanford.
Appellee, the plaintiff below, argues that the jury was free to find that David Sanford “did not sound truthful.” It was, of course, within the jury’s province to believe or disbelieve the testimony of any witness. Fuller v. Johnson, 301 Ark. 14, 781 S.W.2d 463 (1990). However, even if the jury chose to disbelieve Sanford’s testimony, such would not constitute substantial evidence of negligence, and, as stated, the plaintiff had the burden of proof on this issue.
Reversed and dismissed.
Hays, Corbin, & Brown JJ., dissent. | [
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Smith, J.
The Union Bank & Trust Company brought this suit against J. B. Strickland, to foreclose a deed of trust given by him to the bank. I. N. Reynolds was made a party defendant, for the purpose of foreclosing a lien on a small tract of land which Reynolds had purchased from Strickland, and for which Reynolds had given Strickland a note for $375, dated April 4,19191, and payable January 1, 1920; the note being secured by a vendor's lien reserved in the deed from Strickland to Reynolds. This purchase money note from Reynolds to Strickland was deposited by Strickland with the plaintiff bank as collateral security to his (Strickland’s) note to the bank. Strickland renewed his note to the bank from time to time, and the Reynolds note was at all times held as collateral to secure Strickland’s indebtedness and the renewals thereof.
Reynolds filed an answer, in which he denied that the bank was an innocent holder of this note, and he alleged also that the note was barred by the statute of limitations, and had been paid.
The testimony leaves no doubt whatever that the bank acquired Reynolds ’ note in due course as collateral, before its maturity, and it is equally as clear that Reynolds paid Strickland the amount of the note, but the payments were made to Strickland at a time when he was not the holder of the note.
The question in the case is whether the note is barred by the statute of limitations. The note was dated April 4, 1919, and fell due January 1, 1920, and the suit was filed May 21, 1928, but upon the back of the note a payment was indorsed as follows: “By cash paid to J. B. Strickland Dec. 1,1924—$75. ’ ’ This alleged payment was made before the bar of the statute of limitations had fallen, and the suit was brought within less than five years after the date of the payment, so this payment is the controlling question in the case.
Reynolds testified that there was no authority for this credit on the note, and, if this is true, the note was barred, for, as was said by Cockrill, C. J., in the case of Wilson v. Pryor, 44 Ark. 532 : “The presumption of a deliberate promise to pay the residue, which the fact of part payment raises, can arise only from what would be deemed an actual part payment.” Taylor v. White, ante p. 433, 31 S. W. (2d) 745.
The president of the bank testified that this $75 payment was not made to the bank, but was reported by Strickland as having been made to him by Reynolds, and at Strickland’s request the credit was indorsed upon the note while it was in the bank’s possession as collateral for Strickland’s own note to the bank. This testimony alone would not be sufficient to bind Reynolds as proving that he had made a payment on his note, but it is by no means the only testimony on that subject.
Reynolds, who was Strickland’s uncle, was a carpenter by trade, and after buying the land he left the neighborhood in which it was located and went away in search of work at his trade, and he left the property in charge of Strickland, with directions to collect the rent, amounting to $6 per month, and to apply it to the payment of the note. Reynolds himself so testified. Reynolds did not know that Strickland had hypothecated the note, but supposed that Strickland had it in his own possession, and on October 24, 1927, he received a receipt from Strickland showing that the note had been paid in full, which recited ‘‘ that said note was burned up and this receipt is given in place of the said canceled or paid note.”
It is undisputed that Strickland collected rents amounting to as much as $75, and that he had done so not later than the date of the credit of that payment on the note, and it is admitted that Reynolds rented his house under an agreement by which the rent was to be paid to Strickland and credited on Reynolds’ note and it is undisputed that Strickland directed the president of the plaintiff bank to indorse the $75 credit on the note, and that this was done before the bar of the statute had fallen.
It is true Reynolds denied that he authorized Strickland to indorse the credit of payment on the hack of the note, hut it is also true that Reynolds admitted that he directed the rents to he applied to the payment of the note, and it was this agreement which tolled the statute, for, as was said in the case of McAbee v. Wiley, 92 Ark. 245, 122 S. W. 623 : “It is actually the fact of the payment that tolls the statute, and not the indorsement; the indorsement is only a memorandum, or at most an evidence, of such payment; and there can he no stronger proof of such payment than the admission of the defendant himself, who at the trial is then the only person controverting it. ’ ’
As it is established by. the testimony that Reynolds placed iStrickland in charg’e of the property, with directions to collect the rent and apply the rent to the payment of the note, and further that, pursuant to this direction, Strickland did collect the rent.and directed the president of the plaintiff bank to indorse the receipt of payment of $75 to Strickland, who was Reynolds’ agent to collect the rents and pay them to himself as the payee in the note, we conclude that the chancellor was warranted in finding, as he did find, that a voluntary payment had been made on the note by Reynolds before the bar of the statute had fallen, and the decree, based upon that finding, must therefore be affirmed, and it is so ordered.
Mehaeey, J., dissent. | [
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John I. Purtle, Justice.
This is an appeal from a jury verdict and judgment in a wrongful death case. The death resulted from a pickup truck and train collision at a railroad and highway intersection. The verdict and judgment in favor of the appellee totaled $550,000.00. The appellant argues seven points for reversal: (1) the trial court erred in refusing to direct a verdict in favor of the defendants on the issue of causation; (2) the trial court erred in submitting the whistle and bell issue to the jury; (3) the trial court erred in submitting the issue of conscious pain and suffering to the jury; (4) the trial court erred in submitting the issue of punitive damages to the jury; (5) the Arkansas vegetation statute is preempted by federal law and the trial court erred in instructing the jury on the statute; (6) the trial court erred in its evidentiary rulings; and (7) Union Pacific railroad company should have been dismissed as a defendant. Although the case is reversed and remanded, it is necessary to discuss all of the points raised to provide guidance at the second trial.
Cleo Mackey was driving his pickup truck south on Highway 41 in Franklin County, Arkansas, about 1:50 p.m., on July 27, 1984, when it collided with an eastbound Missouri Pacific train. Mackey died shortly thereafter as a result of injuries received in the collision. There was testimony to the effect that the truck was traveling south at a speed between 20 and 40 miles per hour immediately prior to the collision. The uncontradicted testimony was that the engineer blew the whistle and sounded the bell when the train was somewhere between 250 and 1500 feet west of the intersection of the railroad and Highway 41.
The pickup left 38 feet of skid marks prior to stopping, with the front end of the truck in the center of the railroad tracks. Expert testimony indicated that the pickup was driving between 20 and 30 miles per hour when the brakes were applied. Also, expert testimony indicated that the truck would have stopped prior to reaching the track if it had not been for loose gravel on the highway. The highway had been treated with hot asphalt and loose gravel on the date of the collision.
Evidence reveals that the railroad had allowed trees and underbrush to grow on the railroad right-of-way near this highway and railroad crossing. The exact distance at which a train could be observed from the highway was not established. Of course, as a vehicle approached the track, the driver could see farther down the tracks and the converse is true as it relates to the engineer operating the train.
A model built at the appellee’s request and introduced at the trial portrayed the railroad right-of-way as being heavily overgrown with shrubs and trees. Also, ground level and area photographs of the scene were introduced into evidence. An eyewitness to the occurrence observed the vehicle approaching from the north several hundred feet before it reached the intersection. At the same time, he heard the train whistle and observed the train some 250 feet west of the intersection. He was the first person to the scene and observed the decedent as he was immediately after the occurrence. He was at the vehicle within seconds after the collision and observed the decedent lying partly in the floorboard and partly in the seat of the truck. He could not see the injured party’s eyes but his arms were jumping and he was shaking a little bit. He was making a noise when he breathed through his mouth and when he breathed through his nose. The witness stated: “He could not get enough air one way and would try another because he would make two different sounds.” The vital signs of the decedent apparently stopped on the way to the hospital, and he was resuscitated. The emergency room doctor, who pronounced him dead in the emergency room, stated that it was “most unlikely” that the decedent experienced any conscious pain and suffering.
I. THE TRIAL COURT ERRED IN REFUSING TO DIRECT A VERDICT IN FAVOR OF THE DEFENDANTS ON THE ISSUE OF CAUSATION.
The appellant argues that the “sole proximate cause of the accident” was the presence of the loose gravel on the highway. There was strong evidence, both expert and otherwise, that the vehicle would have stopped prior to the collision had it not been for the loose gravel. However, the fact that he did not apply his brakes sooner, thereby being able to stop in spite of the loose gravel, may have been the result of an obstructed view caused by the growth on the railroad right-of-way. There was evidence from which the jury may well have found that the undergrowth prevented the decedent from observing the train at an earlier time and place. The burden of proving an independent intervening factor is with the party asserting it. Kelley v. Wiggins, 291 Ark. 280, 724 S.W.2d 443 (1987). Intervening negligence which bars recovery of the original wrongdoer has been discussed by this court in Bashlin v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982), and Gatlin v. Cooper Tire and Rubber Company, 252 Ark. 839, 481 S.W.2d 338 (1972). We held in Bashlin that an intervening act of negligence is no defense unless it is the sole proximate cause of the injury or damages and that a party may recover from the original actor if the negligence of the original actor was still a contributing factor. An independent intervening cause has been held to bar recovery from the original tortfeasor in the case of Cowart, Adm’x. v. Jones, 250 Ark. 881, 467 S.W.2d 710 (1971). See also, Larson Machines, Inc. v. Wallace, 260 Ark. 192, 600 S.W.2d 1 (1980). The growth on the railroad right-of-way was substantial evidence to allow the jury to find that it was a proximate cause of this occurrence. Whether both or either the negligence of the railroad or the highway department were proximate causes of the damage and injuries in this case were matters to be decided by the jury. Hergeth v. Green, 293 Ark. 119, 733 S.W.2d 409 (1987). When reviewing the denial of a directed verdict, we view the evidence in light most favorable to the appellee. Boykin v. Mr. Tidy Car Wash, Inc., 294 Ark. 182, 741 S.W.2d 270 (1987). The trial court did not err in refusing to grant a directed verdict on causation.
II. THE TRIAL COURT ERRED IN SUBMITTING THE WHISTLE AND BELL ISSUE TO THE JURY.
The engineer testified that he started sounding the whistle and bell when he was some fourteen to fifteen hundred feet from the intersection. He stated that he knew that he did so for at least thirteen hundred and twenty feet, which he knew was a quarter of a mile. Two independent witnesses testified that they heard the train whistle sounding before the occurrence. One of these witnesses never saw the train but the other witness witnessed the actual impact. This witness said the train whistle sounded while he was watching the pickup and when he looked toward the train it was about two hundred and fifty feet from the intersection. There was no testimony or evidence introduced to indicate that the whistle or bell did not sound. We recently decided a similar case in Missouri Pacific Railroad Company v. Biddle, 293 Ark. 148-A, 737 S.W.2d 625 (1987) (Opinion on rehearing). In Biddle we held that in the absence of any evidence that the bell was not sounded the matter should not have been presented to the jury. Since the trial court presented the issue to the jury, we reversed and dismissed because there was no other issue remaining. The testimony of the engineer and the witnesses in the present case was not contradicted. Therefore, it was error to present this matter to the jury. We held it was error to give an inapplicable instruction in Hunter v. McDaniel, 274 Ark. 178, 623 S.W.2d 196 (1981), and CRT, Inc. v. Dunn, 248 Ark. 197, 451 S.W.2d 215 (1970). Since the jury may have found that the train did not ring the bell or sound the whistle, thereby establishing proximate cause, we find prejudicial error.
III. THE TRIAL COURT ERRED IN SUBMITTING THE ISSUE OF CONSCIOUS PAIN AND SUFFERING TO THE JURY.
Witness Gerald Clayton observed the accident and immediately went to the scene. Although he could not see the driver’s eyes, he did see him making twisting and jerking movements and heard him making different noises through his mouth and nose. He indicated that when it would become more difficult for the victim to breathe through the mouth, he would change to the nose and when that became difficult, he switched back to breathing through his mouth. There is some evidence, from the witness’s observation, that the deceased was conscious. The emergency room doctor testified that it would have been “most unlikely” that Mr. Mackey experienced any conscious pain and suffering. The doctor’s statement does not rule out the possibility that the decedent actually suffered conscious pain. Therefore, viewing the evidence in the light most favorable to the appellee, we cannot say that there was no substantial evidence supporting this instruction and that it should not have been presented to the jury. This is one of those issues which may not develop exactly the same at a second trial. Although the evidence in the matter was “very meager,” we think it rose to the level of that found in the case of Ashcraft v. Jerome Hardwood Lumber Company, 173 Ark. 135, 292 S.W. 386 (1927). Our cases have dealt with the facts and circumstances of each case and relied heavily on the nature and extent of the injuries when determining whether conscious pain and suffering are recoverable. A question for the jury was established in this case.
IV. THE TRIAL COURT ERRED IN SUBMITTING THE ISSUE OF PUNITIVE DAMAGES TO THE JURY.
There is no question that there was evidence that the railroad was negligent in not properly maintaining its right-of-way. However, the evidence does not rise to the level of allowing punitive damages as we found in the somewhat similar case of Missouri Pacific Railroad Company v. Arkansas Sheriff's Boys’ Ranch, 280 Ark. 53, 655 S.W.2d 389 (1983). In the Boys'Ranch case there was evidence that corporate representatives had stated it was cheaper to settle a claim than to maintain the right-of-ways. Here the evidence most favorable to the appellee in this regard was the testimony of a former employee of Missouri Pacific Railroad that he had requested that the right-of-ways in this area be cleared of undergrowth. This same witness testified that usually when he made a request it was followed up, albeit slowly. He did not specifically request that the undergrowth at this particular intersection be cleared. There was no evidence that this was a hazardous crossing nor was there other evidence indicating the dangers had been presented to the railroad company. There is no direct evidence that the railroad company intentionally or wantonly disregarded any warnings relating to the danger of this situation: Punitive damages are only justified when the defendant acts wantonly or with such conscious indifference to the consequences of his acts that malice may be inferred. National By-Products, Inc. v. Searcy House Moving Company, 292 Ark. 491, 731 S.W.2d 194 (1987). In National By-Products, we quoted from Freeman v. Anderson, 279 Ark. 282, 651 S.W.2d 450 (1983), with approval, as follows:
In other words, in order to superadd this element of damages by way of punishment, it must appear that the negligent party knew, or had reason to believe, that his act of negligence was about to inflict injury, and that he continued in his course with a conscious indifference to the consequences, from which malice may be inferred.
In National By-Products we stated there was proof of gross negligence but that gross negligence is not sufficient to justify punitive damages. We have further stated that negligence, however gross, will not justify an award for punitive damages. Freeman v. Anderson, supra. Therefore, it was prejudicial error on this point for the trial court to submit the issue of punitive damages to the jury.
V. THE ARKANSAS VEGETATION STATUTE IS PREEMPTED BY FEDERAL LAW AND THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON THE STATUTE.
Several witnesses testified that the vegetation growth on the railroad right-of-way was considerable. Some witnesses stated it was sufficient to obscure the vision between the vehicle and a train until it was too late to avoid a collision. This testimony was broad enough to include the “road bed” as being part of the area where the growth had occurred. Also, it was obvious that the testimony covered right-of-way outside the road bed.
Ark. Code Ann. § 23-12-201 (1987) provides that railroads shall “maintain their right-of-way at or around any railroad crossing of a public road or highway free from grass, trees, bushes, shrubs, or other growing vegetation which may obstruct the view of pedestrians and vehicle operators using the public highways.” The statute provides for clearance of such right-of-ways for a distance of a hundred yards in either direction of a railroad crossing. The federal law on this point, which allegedly preempts the state law, is 49 CFR § 213.37 (1986). It reads as follows: “Vegetation on railroad property which is on or immediately adjacent to the road bed must be controlled so that it does not (a) become a fire hazard . . . (b) obstruct visibility of railroad signs and signals; (c) interfere with railroad employees performing normal track side duties; (d) prevent proper functioning of signals and communication lines; or (e) prevent railroad employees from visually inspecting moving equipment from their normal duty stations. .
It is obvious on the face of the rules that the federal regulation is expressly for the purpose of preventing fire hazards to track-carrying structures and equipment and to prevent interference with employees’ performance of their duties. On the other hand, the Arkansas statute clearly is intended to protect pedestrians and operators of vehicles.
The Federal Railroad Safety Act (FRSA) addressed the role of the state in regulating railway safety when it provided as follows:
A state may adopt of continue in force any law, rule, regulation, order, or standard relating to railroad safety until such time as the Secretary has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement. A state may adopt or continue in force an additional or more stringent law, rule, regulation, order, or standard relating to railroad safety when necessary to eliminate or reduce an essentially local safety hazard, and when not incompatible with any Federal law, rule, regulation, order, or standard, and when not creating an undue burden on interstate commerce.
It is argued that the federal rule earlier cited preempts the state statute because the supremacy clause of the United States Constitution, article 6, prohibits states from legislating in the area where a federal rule or statute exists. The supremacy clause invalidates a state law which interferes with a federal law if: (1) congress expressly preempts it, or (2) if the congressional scheme is so comprehensive that no room is left for state regulation, or (3) the state law stands as an obstacle to the accomplishment of congressional objectives. Hillsboroughs County, Florida v. Au tomated Medical Laboratory, Inc., 471 U.S. 707 (1985). We do not find the state law to have been preempted under any of these three tests. In fact, it is quite evident that the state and federal laws can be read without conflict. Therefore, Ark. Code Ann. § 23-12-201 (1987) has not been preempted by federal law.
VI. THE TRIAL COURT ERRED IN ITS EVIDEN-TIARY RULING.
We note the various rulings on evidence presented because they may be relevant on retrial. The basic rule is that the admittance into the record of testimony or other evidence is a discretionary matter with the trial court. We have previously mentioned the introduction of the model as being within the discretion of the court. It may be that no objections will be raised at the second trial or objections which were not raised before may be raised. There may be additional information added or the model may be otherwise updated. We cannot anticipate the manner of presentation at the next trial.
Jim Corgil, a former employee of Missouri Pacific Railroad Company, testified that other employees had told him that they had requested the railroad to do something about the condition of the growth on the right-of-way. Proper objection was made on the basis of hearsay. The appellee argues that they were not offered to prove the truth of the matter stated, an exception to A.R.E. Rule 801, but rather to show that conditions of the right-of-way had been brought to the attention of the railroad officials. Such testimony was obviously an attempt to prove the truth of the matter asserted. Under the conditions as they existed at the time of the trial, it was error for the court to allow this hearsay testimony.
During cross-examination of the appellee, counsel for appellant requested permission to read two pages from the plaintiffs discovery deposition. The court sustained the plaintiffs objection. We agree with the appellant that ARCP Rule 32(2) provides that the deposition of a party may be used by the adverse party for any purpose at the trial. However, we cannot discern any prejudice on the record as it stands. This again is a matter which will not likely duplicate itself on retrial.
VII. UNION PACIFIC RAILROAD COMPANY SHOULD HAVE BEEN DISMISSED AS A DEFENDANT.
Appellant is correct on the matter of dismissing the action against Union Pacific Railroad Company. The answers to interrogatories clearly reveal that Union Pacific Railroad Company and Missouri Pacific Railroad Company are sister corporations owned by the Union Pacific Corporation. There was no evidence at all in the record to indicate that Union Pacific Railroad Company was in any way involved in this occurrence. It was a Missouri Pacific railroad and the train was owned by Missouri Pacific. The operators of the train were employees of Missouri Pacific. No nexus having been shown connecting Union Pacific Railroad to the matters involved, we agree that it should not have been a party to this action. Therefore, the judgment as to the Union Pacific Railroad Company is reversed.
Reversed and remanded with directions to proceed in a manner not inconsistent with this opinion.
Holt, C.J., and Glaze, J., concur in part and dissent in part.
Hays, J., dissents. | [
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Frank Holt, Justice.
The appellant has failed to comply with Rule 9 (d) of the Rules of the Supreme Court, so we affirm the trial court. The abstract contains neither the pleadings, the requests for admissions, the exhibits, nor the decree of the court. The defects in the abstract are almost identical to those that caused the appeal to be affirmed in Bank of Ozark v. Isaacs, 263 Ark. 113, 563 S.W.2d 707 (1978). Here, as there, it is impossible, for us to read the abstracted pages of the testimony with any comprehension of the issues that were before the trial court or how the trial court ruled on those issues.
We recognize that the appellant, who is not a lawyer, represented himself in this appeal. However, our rules do not provide for relaxed standards for pro se briefs. Furthermore, the appellant has represented himself before this court on two prior occasions, once successfully, so he should not be a stranger to the rules governing appeals to this court.
Affirmed. | [
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Tom Glaze, Justice.
This case is another of a series of cases which involves the sale or giving of alcohol to a person who became intoxicated and, as a consequence, injured himself or a third party. See Alpha Zeta Chapter of Pi Kappa Fraternity v. Sullivan, 293 Ark. 576, 740 S.W.2d 127 (1987) (where fraternity, hosting a hayride, furnished alcohol to a minor [rushee], who was struck and killed by a car as he left the trailer parked on one side of the road to cross to the other side of the road); First Am. Bank of North Little Rock v. Associated Hosts, Inc., 292 Ark. 445, 730 S.W.2d 496 (1987) (where a person, attending a local bar’s happy hour, became intoxicated, and as he left the bar, he fell striking his head on the pavement which caused him serious injuries); Yancey v. Beverage House of Little Rock, Inc., 291 Ark. 217, 723 S.W.2d 826 (1987) (liquor store sold liquor to an intoxicated minor who subsequently was involved in a one-car accident in which two teenage passengers were killed); Milligan v. County Line Liquor, Inc., 289 Ark. 129, 709 S.W.2d 409 (1986) (liquor store sold beer to a minor, who later lost control of his car when he was opening a bottle of beer causing his car to strike an oncoming vehicle killing the driver of the other vehicle); Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965) (tavern owner illegally sold drinks to a woman until she was visibly intoxicated and as a result of her drunkenness, she later ran her car into a parked taxi cab causing injuries to a third party). In each of these cases we have held that one who furnishes alcohol to a minor or to someone who is inebriated is not liable by doing so.
Because this lawsuit arises out of an automobile accident which occurred after a company-employee champagne party, the appellant seeks to distinguish this case from our prior case law by arguing that this court should apply well-settled common law negligence and hold the employers liable for furnishing alcohol to the employees. Stanley Little and the appellant were co-employees of the appellees. The appellant left the champagne party with Little and was a passenger in his car. Little, who apparently had become inebriated at the party, lost control of his vehicle and struck a telephone pole. As a result of this accident, the appellant sustained injuries. The appellant now appeals the trial court’s granting of the appellees’ motion to dismiss for failure to state a claim from which relief can be granted.
Under the circumstances of this case, the appellant contends the employees were encouraged to attend the party, and because of the employers’ position of authority or control over the employees, a subtle coercion, or perhaps a requirement, existed for the employees to attend. Appellant urges that, unlike in the social-host setting, there is an added pressure for an employee to drink alcohol at a company party in order to please the employers. Because of this added authority, control and pressure involved in employer/employee relationships, the appellant urges this court to find the employers responsible for any negligence that results from an employee drinking alcohol at an employers’ function. We must decline the appellant’s urgings, because we find them to be erroneous and contrary to this court’s prior opinions.
In view of today’s present social values, we would suggest that it may be as acceptable to refuse alcohol as it is to drink. In any event, the appellant’s argument that an employer expects an employee to drink, much less drink to the point of intoxication, is based more on speculation than fact. Nonetheless, the appellant’s argument has failed to show this court why this case warrants a different holding than those we reached in our earlier decisions.
First, even when this court accepts as true the allegations contained in appellant’s complaint, that the appellees were negligent, the appellant’s argument ignores the basic reason upon which this court has repeatedly denied civil liability in cases involving the sale or giving of liquor to minors or intoxicated persons. This court has held that it is the person’s own consumption, not the person’s act in furnishing the alcohol, that is the proximate cause of any resulting accident and injuries. See, e.g., Milligan, 289 Ark. 129, 709 S.W.2d 409. While the appellant argues the control or economic compulsion an employer has over an employee should be viewed differently, we are unaware of any authority that makes such a distinction, nor do we believe such a distinction is a valid one.
Appellant cites several cases from other jurisdictions for the proposition that an employer/employee relationship in these intoxication situations should be treated differently. Chastain v. Litton Systems, Inc., 694 F.2d 957 (4th Cir. 1982); Gariup Constr. Co., Inc. v. Foster, 519 N.E.2d 1224 (Ind. 1988); Dickinson v. Edwards, 105 Wash. 2d 457, 716 P.2d 814 (1986). The Chastain and Dickinson cases fail to support appellant’s claim and instead impose civil liability as to employers in situations where the doctrine of respondeat superior was shown to exist, i.e., where an employee’s attendance and consumption of alcoholic beverages could reasonably be considered to be within the scope of his employment. Neither of these decisions speaks in terms of pressures being imposed on employees to drink at a company function. Significantly, the appellant in the present case offers no argument that any of the employees here were acting within the scope of their employment when the appellees hosted their employee party.
On the other hand, the Indiana Supreme Court in the Foster case did mention the influence and control an employer had over an employee when discussing that employer’s potential liability for the negligence of an inebriated employee who left the party in his car and ran head-on into the plaintiffs vehicle. However, the Indiana court also discussed the employer’s liability in terms of the employer’s violation of a state law, comparable to Arkansas’s law, which makes it unlawful to sell or give away an alcoholic beverage to an intoxicated person. Arkansas courts, unlike Indiana’s, have steadfastly rejected the contention that a violation of such a state law was intended to change the common law rule of nonliability. In other words, Arkansas courts have systematically held that a person’s‘selling or giving of intoxicating liquor to an intoxicated person is not the proximate cause of an accident which is later caused by that intoxicated person.
In conclusion, we previously have recounted that it is the General Assembly that must impose liability on those who sell or give away alcohol to minors or intoxicated persons who in turn cause injuries to themselves or others. In Yancey v. Beverage House of Little Rock, this court said, Justice Hickman writing, that, on some questions of legal liability, we have deferred to the legislature. 291 Ark. at 218, 723 S.W.2d at 827. Nothing has changed that would cause us to view this legal and social issue any differently than the way we viewed the matter in Yancey and our other prior decisions.
For the reasons stated hereinabove, we affirm the trial' court’s dismissal of the appellant’s complaint.
Purtle, J., not participating.
This is the second appeal in this case. The first appeal Was dismissed by this court for lack of an appealable order. Rone v. Little, 293 Ark. 242, 737 S.W.2d 152 (1987). The defendant, Little, who was the party remaining in the law suit, was dismissed from the cause after our ruling. | [
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Ed. F. McFaddin, Justice.
Each of the eleven petitioners seeks, by writ of certiorari, to have this Court quash the Chancery Court order which found each petitioner guilty of contempt and assessed punishment. The contempt proceedings were tried in a consolidated hearing in the Chancery Court; so the eleven petitions for certiorari have been consolidated in this Court.
The contempt proceedings spring from a labor dispute. When the Utah Construction Company (hereinafter called “Utah”) undertook to remove coal from its Ozark-Philpott Mine, a labor dispute arose as to whether the mine would be operated by members of the United Mine Workers of America. On petition of Utah, the Chancery Court issued a temporary order, and later a permanent order (on January 19, 1950), restraining the Union, its members, and all other persons, not only (a) from picketing any and all persons or places so as to interfere in any way with Utah’s operation, but also (b) from “attempting to prevent in any manner by the use of force or otherwise the plaintiff (Utah) from operating its property.”
Sometime after the issuance of the permanent restraining order, the eleven petitioners herein, and also several other parties, were cited for conduct alleged to be in contempt of the Court, and as being in violation of the said restraining order. After a careful, patient and thorough hearing, the Chancery Court found that certain of those cited had not been in contempt, but that each of the eleven petitioners herein was guilty of contempt for violation of the said permanent restraining order. Punishments were assessed as hereinafter stated. Prom the orders of punishment each of the eleven petitioners invokes certiorari; and the major contention is that the evidence fails to support the Court’s finding that a contempt had been committed by any individual petitioner.
At the outset it is appropriate to state some of the rules applicable to such a situation as is here presented:
I. “Criminal contempt proceedings are those brought to preserve the power and vindicate the dignity of the court and to punish for disobedience of its orders. Civil contempt proceedings are those instituted to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made for the benefit of such parties.” Definitions of, and distinctions between, civil contempt and criminal contempt may be found discussed in a number of cases. See Gompers v. Buck’s Stove & Range Company, 221 U. S. 418, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A., U. S. 874; Bessett v. W. B. Conkey Company, 194 U. S. 324, 24 S. Ct. 665, 48 L. Ed. 997; In re Nevitt, 117 Fed. 448; Wakefield v. Housel, 288 Fed. 712; Parker v. United States, 153 Fed. 2d 66, 163 A. L. R. 379; see 12 Am. Jur. 392, from which the above quoted words have been taken; and see, also, 17 C. J. S. 7.
One of the reasons for the distinction between criminal contempt and civil contempt is because it is generally held that in criminal contempt proceedings the proof must be beyond a reasonable doubt. In the case at bar the proceedings involve criminal contempt; and the trial court held that the proof had to be beyond a reasonable doubt, just as in a criminal case. This ruling was correct. See Gompers v. Block’s Stove & Range Company, supra; Michaels on v. United States, 266 U. S. 42, 69 L. Ed. 162, 45 Sup. Ct. 18, 35 A. L. R. 451; Davidson v. Wilson, 286 Fed. 108; and see 12 Am. Jur. 441 and cases there cited. See, also, Annotation in 49 A. L. R. 975, “Degree of Proof Necessary in Contempt Proceedings.” This ruling gave the petitioners the benefit of every reasonable doubt. We will subsequently discuss whether the evidence was sufficient to establish, beyond a reasonable doubt, the commission of contempt by each petitioner.
II. The correct procedure to obtain a review by this Court of the judgment of the trial court in a contempt case is by certiorari, just as is here invoked. See Whorton v. Dawkins, 135 Ark. 507, 205 S. W. 901. In McCain v. Collins, 204 Ark. 521, 164 S. W. 2d 448, we said: “The office of the writ (of certiorari) is merely to review the errors of law, one of which may be the legal sufficiency of the evidence.” tíee, also, Bertig Bros. v. Independent Gin Co., 147 Ark. 581, 228 S. W. 392.,
III. On review by this Court in such proceedings by certiorari, we do not try the.criminal contempt case de novo, despite any such language so intimating as contained in Jones v. State, 170 Ark. 863, 281 S. W. 663. llatlier, we review the evidence just as we would in an appeal in any criminal case. The trial court in the first instance, in a criminal contempt proceeding, must find the cited person guilty beyond a reasonable doubt. Then, on certiorari proceedings this Court reviews the record to determine whether the evidence, when given its full probative force, is sufficient to sustain the finding of the trial court. See Stewart v. United States, 236 Fed. 838; Binkley v. United States, 282 Fed. 244; Davidson v. Wilson, 286 Fed. 108; and In re Oriel, 23 Fed. 2d 409.
So much for the general rules. With these rules in mind we have examined the record herein concerning each of the eleven petitioners. The main insistence of the petitioners is that the evidence is insufficient to support the finding of the Chancery Court; and this insistence makes necessary a review of the salient evidence regarding each contemnor. Evidence was presented concerning three or more separate incidents. We will discuss the case as it relates to each petitioner.
(a) — The contempt by the petitioner, Woodrow Thompson, consisted of threatening an employee, William Almond, who at all times was employed by Utah at its Ozark-Philpott Mine. Almond testified that after the permanent injunction had been granted, Woodrow Thompson approached him and said: “I hope every damn one of you have to work for 50 cents a day . . . We’re after you ... If you go back out there and go to work, I’m going to get your-.” Certainly these statements, if made by Thompson, were in contempt of the injunction because they constituted threatening an employee of Utah; but it is insisted by Thompson that he made no such statements, and several witnesses who professed to have heard the entire conversation said that Thompson did not make the said remarks. With the evidence in conflict, it became a matter for the trial court — ■ with the same prerogative in this case as a jury has in a criminal case — to determine which testimony to believe. We will subsequently discuss this matter of credibility.
(b)- — -The contempt by the petitioner, Matt Snider, consisted of attempting to intimidate Jack Morton, an employee of Utah. Morton testified that Snider approached him when the two were alone. Morton testified of Snider:
“Q. — He came on out to the car and he said, ‘You think you’ve got a good job, do you?’ — -and used a few cuss words; he said, ‘You think you’ve got a pretty Goddamned good job, do you?’, and I said, ‘Yes, fair,’ and he said, ‘Well, you’re just putting guys like me out of work,’ and I said, ‘Well, I can’t help that. I’ve got to make a living,’ and he went ahead to say, ‘You won’t work out there long,’ and I said, ‘Why?’, and he said, ‘Well,’- — -he said, ‘guys like me are going to stop you,’ and I said, ‘You are?’, and I said, ‘Well, as long as they let me work, I’m going to work out there,’ and he just went ahead cussing and left a cussing. He said I wasn’t going to work out there very long, or nobody else work out there very long.”
Snider denied that he had such a conversation with Morton; and Snider was supported by several witnesses who testified that if any such conversation had taken place, they would have heard it. What we have previously said about the case against Woodrow Thompson applies with equal force to the case against Matt Snider; and we will later discuss the matter of credibility.
(c) — The contempts bj^ each of the remaining nine petitioners arose from their efforts to prevent Ed Willey and his truck drivers, from hauling shale to the Utah mine from a pit located twelve or fourteen miles away. That this shale was necessary for Utah’s continued operation was definitely established. Petitioner Ogalvie at one time had a contract for his trucks to haul the shale, and he either surrendered the contract or lost it. At all events, Ed Willey was under contract for Ms trucks to lianl tire shale. One disinterested witness (Chester Emil) testified that Ogalvie told him that Ogalvie would not deliver the shale because it was not a Union job, and that if Willey could not haul the shale, then Utah ‘ ‘would have to go Union.”
Another disinterested witness (Sid Skaggs) testified that Ogalvie and Cecil Iioss (one of the petitioners) were together when Ross told Skaggs that Ross “was going to have a hunch out there to stop Ed Willey from hauling shale.” On Friday, January 20, a group of men arrived at Skaggs ’ store which was located about a mile from the shale pit and at a place where the ro.ad to the shale pit left the main highway. Skaggs suggested to the men that an injunction had been granted against picketing and interfering with Utah’s operation; but the spokesman for the group advised Skaggs that the injunction was not effective in the County in which Skaggs’ store and the shale pit were located.
Petitioners Ogalvie, Bud Róss, and Cecil Ross seemed to have been the “mainsprings” of the plan to stop Willey’s trucks from hauling the shale. Ogalvie and Cecil Ross, with petitioner Bud Wise, actually assaulted, or assisted in an assault on Willey on Saturday, January 21, after the assemblage of the others at the shale pit on Friday, January 20, had failed to serve as a sufficient deterrent from the hauling. The other five petitioners (Blackard, Killough, McCleary, Marvel, and Webb) either congregated at the shale pit for the purpose of intimidation or otherwise assisted in attempts to deter Willey and his truck drivers from hauling shale for Utah. Their principal defenses were (a) that the differences with Willey arose out of matters other than the Utah injunction, and (b) that the petitioners happened by mere coincidence to be at the shale pit and at Skaggs’ store.
It is argued that all that some of 'the petitioners did was to assemble at the shale pit on Friday, January 20, and that such an assemblage was not a picket line. We are not considering any question relating to picketing, because the contemnors violated that part of the injunction which was a restraint “from preventing or attempting to prevent in any manner . . _. the plaintiff from operating its property known as the Ozark-Philpott Mine . . We agree with the Chancellor that the assemblage at the shale pit was an attempt to prevent the hauling of the shale to Utah’s mine. J. W. Lee testified that an assemblage of twenty or twenty-five men at the shale pit had never occurred previously or subsequently. Lee operated the loading machine for Willey at the shale pit and testified that Willey’s truck drivers were accosted and engaged in conversation by some of those in the assemblage. C. C. Patton, one of the truck drivers for Willey, detailed ihe conversation Cecil Ross had with him to the effect that if the shale wasn’t hauled, Utah would have ‘ ‘ to go Union. ’ ’ Dexter Curtis, another of Willey’s truck drivers, testified to like effect.
The record is voluminous : the transcript consists of 490 typewritten pages; and the abstracts and briefs consist of 281 printed pages. To review all of the evidence would serve no useful purpose. The evidence regarding these nine petitioners is in the same hopeless conflict as is that concerning the two petitioners previously mentioned; and we therefore now discuss the matter of credibility.
If the evidence should be Aveighed by the mere number of witnesses, then probably the petitioners should prevail; but the evidence in a case like this, just as the evidence in any case, is to be tested by the truth and not by the number of witnesses. In Romines v. Brumfield, 199 Ark. 1066, 136 S. W. 2d 1023, we quoted Ballentine’s Law Dictionary:
“The weight of evidence is not a question of mathematics, but depends upon its effect in inducing belief. One witness may be contradicted by several and yet his testimony may outweigh all of theirs. The question is not on which side are the witnesses more numerous, but what is to be believed.”
Immediately after tlie conclusion of the evidence, the Chancellor delivered an opinion from the bench which when transcribed consumes ten typewritten pages. The opinion shows a masterful grasp of the evidence, and contains a review of the testimony on each of the alleged acts of contempt. In one portion of the opinion the Chancellor, in referring to some evidence offered by the petitioners, said: “I don’t believe a word of it.”
The Chancellor heard the witnesses testify and observed the demeanor of each while on the witness stand and has positively stated in the record that the basis of his finding was the truthfulness of the testimony offered to show the contempt by each of the eleven petitioners and the falsity of the testimony of their defense. As previously stated, we review the evidence in this case just as we would an appeal in an ordinary criminal case, that is, to determine whether the evidence, when given its full probative force, is sufficient to sustain the finding of the trial court'. We find that it is.
Twenty-two individuals were cited for contempt. The Chancery Court, after a painstaking hearing, found ■that the evidence was insufficient against eleven of the petitioners, but found that the evidence of contempt was sufficient against the eleven petitioners herein; and assessed fines of $25 each against the petitioners Thompson, Snider, Blackard, Killough, McCleai'y, Marvel, and Webb. Bud Wise was fined $50. Ogalvie and Cecil Boss were each punished by a fine of $200 and thirty days in jail; and Bud Ross received a fine of $100 and a ten day jail sentence.
A careful review of the entire case convinces us that each of the eleven petitions for certiorari should be denied and that the order of the Chancery Court, finding each of the petitioners to be in contempt and adjudging punishment, therefore should be allowed to remain in full force in all respects.
The wording of the permanent injunction is:
“That the defendants . . . and all other persons acting in concert with them be, and they are hereby permanently restrained and enjoined from committing, encouraging, permitting or causing to be committed any of the following acts:
“Picketing in any manner, either singly or in larger numbers, plaintiff’s property or plaintiff’s employees, or any roads, railroads or other means of access thereto; in Johnson or Franklin Counties, State of Arkansas, or any other places within'the State of Arkansas; congregating in any manner at or near plaintiff’s property or anywhere else for the purpose of picketing plaintiff’s property and its employees or any other persons desiring to enter upon and leave plaintiff’s property or to do business with plaintiff upon its property or at any other place; in any manner from threatening, intimidating, accosting or detaining any of plaintiff’s employees, or from threatening or .intimidating by any means whatever any of plaintiff’s employees or members of their families, and from interfering in any manner with any of plaintiff’s employees to prevent them from working peaceably upon plaintiff’s property and from preventing or attempting to prevent in any manner by the use of force or otherwise the plaintiff from operating its property, known as the Ozark-Philpott Mine, or in any manner from interfering with or preventing by any means whatever any of the plaintiff’s employees in going to and from plaintiff’s property or anywhere else for the purpose of carrying on their employment with plaintiff, or from going on plaintiff’s property, or damaging or interfering in any manner with any of plaintiff’s property for the above purposes:” (Italics are our own.) This injunction must, of course, be now considered as a completely valid one. Since no appeal was taken from the decree in which it was issued, we have no occasion to pass on it. Carnes v. Biitt, 215 Ark. 549, 221 S. W. 2d 416.
The decree of the Chancery Court specifically states that the contemnors were guilty “beyond a reasonable doubt.”
In this conclusion the spokesman was in error, as is shown by the injunction copied in a preceding footnote. | [
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Robert H. Dudley, Justice.
We dismiss this appeal because the case is moot. Dale W. Morfey, Chairman of the Westark Christian Action Council, Inc., complained to Mark Stodola, the Prosecuting Attorney of the Sixth Judicial District, that Dr. M. Joycelyn Elders, a state employee, violated the Arkansas Political Practices Act in Pulaski County on January 18,1992. The statute that was allegedly violated, Ark. Code Ann. § 7-1-103 (Supp. 1991), provides that a violation is a misdemeanor. The applicable statute of limitation provides that the prosecution of a misdemeanor must be commenced within one year. Ark. Code Ann. § 5-1-109 (1987). The prosecuting attorney-immediately investigated the allegation and concluded that he could not file such a charge in good faith.
On March 17,1992, the Westark Christian Action Council, Inc., a nonprofit corporation with its principal place of business in Sebastian County, filed a petition in the Circuit Court of Pulaski County and asked the Circuit Court to appoint the corporation’s attorney, R. Gunner DeLay, of Sebastian County, as a special prosecuting attorney for Pulaski County. The prosecutor filed a motion for summary judgment, which was heard on May 1,1992. The circuit court granted the summary judgment on May 26, 1992. Westark filed a notice of appeal on June 22,1992. For the next six months Westark apparently regarded the appeal as a routine appeal, because it was not until January 4, 1993, or only fourteen days before the statute of limitation would run, that Westark filed a motion asking for an expedited appeal. On January 12, 1993, by per curiam, we denied the motion for expedited appeal because at that late date we could not possibly have set a briefing schedule, conducted the necessary research, held the necessary conferences, reached a decision, allowed time for rehearing, issued a mandate to a trial court, allowed the trial court sufficient time, and, if a special prosecutor were appointed, allowed him or her sufficient time to act. Westark Christian Action Council v. Stodola, 311 Ark. 449, 843 S.W.2d 318 (1993).
The appeal now comes to us as a regularly scheduled case after the statute of limitation has run. The case is moot. Thus, the first issue is whether we should decide or dismiss the appeal. We do not ordinarily decide appeals after a case has become moot. First Nat’l Bank v. Massachusetts Gen. Life Ins. Co., 296 Ark. 28, 752 S.W.2d 1 (1988). However, when a case contains an issue of significant public concern, or an issue that might avert future litigation, we may choose to decide the appeal. Duhon v. Graven, 302 Ark. 358, 790 S.W.2d 155 (1990). Special consideration is given to deciding a moot case when the controversy is subject to repetition, but tends to expire before review can be completed. Nathaniel v. Forrest City Sch. Dist. No. 7, 300 Ark. 513, 780 S.W.2d 539 (1989). None of those criteria are present, and a decision in this case would not have any practical effect on the parties. Accordingly, we dismiss the appeal.
Appeal dismissed. | [
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Holt, J.
This appeal is from a judgment of the Sebastian Circuit Court affirming the action of the Workmen’s Compensation Commission, which denied appellant’s claim for an alleged compensable injury.
The facts were undisputed: “It was stipulated that the claimant received an accidental injury arising out of and in the course of his employment as a result of said injury the claimant was off work from March 10, 1947, to March 17, 1947, at which timé he returned to work for this respondent employer. The claimant was paid no compensation during this period for the reason that he was not off work long enough to entitle him to compensation under the provisions of the Act, but medical expense in the amount of $25 was paid by the respondents; that the employer filed his Form A-8, being the Employer’s First Notice of Injury, with the Commission on March 13, 1947.
‘ ‘ The case was first set for hearing before Commissioner Caperton on June 22, 1949, at which time the respondents specifically pleaded the Statute of Limitations in bar of any claim for compensation. The claimant being without counsel, the Commissioner continued the case until he could secure the services of an attorney.
“The claimant testified that on Friday, March 7. 1947, he struck his coccyx, or lower end of his spine, on a part of the press where he was working; that although it hurt pretty badly he continued to work until Saturday noon, which was the end of the regular work week, and that he also worked the following Monday, but on Tues day, lie went to Dr. Hugh Johnson, who in turn sent him to Dr. Brooksher for an X-ray; that Dr. Johnson sent him home, where he remained about one week, and then returned to his regular work as a pressman; that at that time he was being paid $52.20 per week, and that after returning to work in March, 1947, he worked most of the time for the next two years; that he first knew that he had fractured his coccyx two or three weeks after March 7, 1947; that from March, 1947, to December 31, 1948, he was off from work on ten or twelve different occasions, a week or so at a time, because his back was hurting him; that he was paid straight timé by his employer for any time he lost from .work from March, 1947, to October, 1948; that in October, 1948, he went to the Veterans’ Administration Hospital, at Fayetteville; and about that time Dr. Johnson told him he could not do any heavy lifting, which he had to do in his job as a pressman; that he talked to his employer in October, 1948, and they gave him a job as outside salesman at $48 per week. At this time it appears that the claimant’s wages, which were $52.20 per week at the time of his injury, had been increased to where he was earning $63.60 per week. However, he took the position as an outside salesman at $48 per week, and since that time his salary as such has been raised to $56.40 per week; that on March 21, 1949, he was operated on at the Veterans’ Administration Hospital, in Fayetteville, and three joints of his coccyx were removed; that his condition is worse since his operation and the end of his spine pains him constantly; that there was no doubt in his mind about his injury as he was informed by Dr. Hugh Johnson that he had a fracture of his coccyx, and he had had trouble all along for a period of two years or so; that the reason he did not file a claim for compensation was that he did not know there was any time limitation for the filing of a claim; that he had had some trouble with his kidneys and he thought that they might have something to do with his condition also. It appears that the first claim for compensation filed by this claimant was a letter to the Commission dated May 23, 1949, which was received by the Commission on May 24,1949, in which the claimant set out the injury of March 7, 1947, and his operation on March 21, 1949.”
The Commission denied’ appellant’s claim on the ground that it was barred since it was not “filed within one year after the time of the injury” as provided by § 18 (a) of the Workmen’s Compensation Law of 1939, § 81-1318, Ark. Stats. 1947.
The Commission held that “the time of injury” was March 7, 1947, and since appellant did not file his claim until in May, 1949, he was too late.
As indicated, the Circuit Court, on appeal, affirmed.
Was the claim barred? The question presented appears not to have been determined by this court.
Section 18 (a) of the Workmen’s Compensation Law, in effect March 7, 1947, provided: “The right of compensation for disability under this act shall be barred unless a claim therefor is filed within one (1) year after the time of the injury.”
Appellant earnestly contends that “no injury within the meaning of the Law and no disability occurred until October, 1948, and that the first time appellant suffered a loss in earnings because of his injury is the time of his ‘injury’ within the meaning of the Law then in effect,” and that an “injury” did not occur until it became a compensable injury in October, 1948.
Appellees insist that under the plain terms of the act, appellant was barred because he failed to file his claim within one year limitation “after the time of the injury” and that this requirement was mandatory and jurisdictional.
Our rule is well settled that we must give a liberal construction to the provisions of the Workmen’s Compensation Law, to effectuate its humane purposes, and resolve any doubt in favor of the claimant. To this end, we should not, in administering the act, defeat its purpose by over emphasis on technicalities, by putting form above substance. The act itself provides that in a proceeding to enforce a claim “there shall be a prima facie presumption * * * that the claim comes within the provisions of this act.” Batesville White Lime Company v. Bell, 212 Ark. 23, 205 S. W, 2d 31.
Tlie general rule, applicable liere, is stated in 71 C. Jp. 966, § 734, as follows: “Unless otherwise provided by the statute, tlie date of the injury and the date of tlie accident for tlie purpose of bringing suit are not necessarily the same. By injury is meant the state of facts which first entitles claimant to compensation, so that if the injury does not develop until after the accident, the cause of action arises when the injury develops or becomes apparent and not at the time of the accident, the latter having been held to be the rule in regard to latent injuries even where the statute requires the proceedings to be instituted within a specified time after the accident,” and the text writer in 58 Am. Jur., p. 846, § 409, announces the rule:
“The rule in most jurisdictions is that the period within which a proceeding for the recovery of compensation may be instituted, or within which an application or claim may be filed, commences to run when the injury accrues, or when the disabling consequences of the accident or injury become apparent or discoverable, rather than at or from the time of the happening of the accident from which the injury results.; but in some jurisdictions the period of limitations is computed from the time of the occurrence of the accident.”
Appellant filed claim for compensation May 24,1949, within less than a year from October, 1948, setting out the injury of March 7, 1947, and the operation of March 21, 1949.
As indicated, appellant argues that an injury does not occur until it becomes a compensable injury and that “time of the injury,” as used in the act, means a com-pensable injury and the one year limitation, therefore, must be reckoned from October, 1948, when .appellant’s' injury became compensable.
Appellees contend that “the one year limitation began to run from the date of the accident, March 7,1947, ’ ’ and that “he (appellant) then had a compensable injury” on that date. In other words, appellees, in effect,- argue that “time of the injury” as provided in the act is synonymous with “time of accident.” We think there is a clear distinction between an accident and an injury. The injury is the result of the accident. An accident often, at the time of its happening, produces a compensable injury, but this is not always true.
For example, one of the distinguishing features between the present case and that of Sanderson & Porter v. Crow, 214 Ark. 416, 216 S. W. 2d 796, (strongly relied upon by appellees) is that in the Crow case, on the facts, a compensable injury resulted on the date of the accident. Here, appellant’s injury was not compensable until he suffered a loss in earnings in October, 1948. Such was the effect of our holding in Sallee Bros. v. Thompson, 208 Ark. 727, 187 S. W. 2d 956.
" 'Disability,’ as defined in the statute, 'means incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury.’ Section 2 (e) of Act 319 of 1939.” Conatser v. D. W. Hoskins Truck Service, 210 Ark. 141, 194 S. W. 2d 680.
In a well reasoned case by the Wyoming Supremo Court, Baldwin v. Scullion, 50 Wyo. 508, 62 Pac. 2d 533, 108 A. L. R. 304, in which many authorities are reviewed, that court construed the limitation section of their Workmen’s Compensation Law, which provided "no * * * award for compensation shall be made unless, * * * claim * * * is filed, by the injured workman * # * within five months after the date on which the injury occurred.” It will be observed that this act is similar, in effect, to our own § 81-1318 above. The court there said: "The term 'injury’ from the date of whose occurrence the mandatory time limitation imposed upon the employee to file his claim for compensation commences to run, means a com-pensable injury under the law. It is not used in the sense of 'accident.’ ”
It would have been an easy matter for our lawmakers, had they intended that a claim must be filed within one year from the date of the accident, to have said so by using the word "accident” rather than the word “injury.” Of significance is the fact that in 1948 (1949 Cumulative Pocket Supplement, Ark. Stats.) the above § 81-1318 was amended so that the time for filing claims •was changed to two years from the date of the accident, not the date of the injury. Section 81-1318 (a) now reads: “Time for Filing. (1) A claim for compensation for disability on account of an injury (other than an occupational disease and occupational infection) shall be barred unless filed with the Commission within two (2) years from the date of the accident.”
There would appear to be no need for this change had the Legislature considered the two words “accident” and “injury” to be synonymous. We hold, therefore, that “time of injury” used in the act before amendment, as indicated, means a compensable injury, and since appellant filed his claim within one year from October, 1948, when his injury became compensable, it was filed in time.
Finally, appellees say: “Medical expense of $25 was paid by respondents. This constituted 'compensation’ as defined in § 2 (i), 81-1302 (i). The employer was required to furnish it promptly (§ 81-1311). Claimant accepted it, so he was paid ‘compensation’ in this manner. But he still failed to file claim for 2 years, 3 months and 17 days and is barred.”
We think this contention without merit for the reason that § 81-1318 (a) above, refers to “time of injury,” which we hold to mean time of compensable injury (October, 1948). This section also provides “except that if payment of compensation has been made in any case on account of such injury (that is compensable injury) * * * a claim may be filed within one year after the date of the last payment.”
It is undisputed that appellant received his injury on March 7, 1947, “was off work from March 10, 1947, to March 17, 1947, ’ ’ that he was paid no compensation during this period for the reason that he was not off woi'k long enough to entitle him to compensation under the provisions of the act (<j> 81-1310), but medical expenses in the amount of $25 were paid by the appellees for this period.
Obviously, this medical payment was not, and could not have been, a “payment of compensation * * * on ac count of such injury (compensable injury)” of October, 1948.
Accordingly, the judgment is reversed and the cause remanded with directions to the Circuit Court to remand the cause to the Workmen’s Compensation Commission Avith directions to allow appellant’s claim for compensation and determine the amount thereof. | [
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Lyle Brown, Justice.
This suit in tort was brought by appellant against appellee, City of Farmington. It arose out of a fatal collision between the city marshal of Farmington and appellant’s intestate, a minor. The city’s demurrer to the complaint was sustained on the ground that municipalities are immune from tort action. Act 165, 1969; Ark. Stat. Ann. § 12-2901 (Supp. 1971). On appeal it is asserted that the recited act makes it mandatory that the State’s political subdivisions carry liability insurance and that failure to do so makes the city amenable to a tort action.
In Parish v. Pitts, 244 Ark. 1239, 429 S.W. 2d 45 (1968), we set aside the rule of law established by precedent which granted immunity to municipalities from tort liability. The first session of the General Assembly thereafter, referring specifically to Parish v. Pitts, enacted Act 165 (Ark. Stat. Ann. § 12-2901 — 03) (Supp. 1971):
Sec. 1. It is hereby declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the State shall be immune from liability for damages, and no tort action shall lie against any such political subdivision, on account of the acts of their agents and employees.
Sec. 2. Each county, municipal corporation, school district, special improvement district, or other political subdivisions of the State is hereby authorized to provide for hearing and settling tort claims against it.
Sec. 3. All political subdivisions shall carry liability insurance on all their motor vehicles in the minimum amounts prescribed in the Motor Vehicle Safety Responsibility Act (Ark. Stat., § 75-1402 et seq.; Act 347 of 1953, as amended).
Sec. 4. It is hereby found and determined by the General Assembly that because of the decision of the Arkansas Supreme Court in Parish v. Pitts, 244 Ark. 1239, municipalities and all units of local government are in imminent danger of bankruptcy because of tort lawsuits and vital public services are in danger of being discontinued. Therefore, an emergency is hereby declared to exist and this Act being immediately necessary to protect the public peace, health and safety, shall take effect immediately on its passage and approval.
We have had at least three cases in which we have discussed Act 165. Sullivan v. Pulaski County, 247 Ark. 259, 445 S.W. 2d 94 (1969); Chandler v. Pulaski County, 247 Ark. 262, 445 S.W. 2d 96 (1969); Williams v. Jefferson Hospital Ass’n., 246 Ark. 1231, 442 S.W. 2d 243 (1969). In those cases we did not discuss the precise question now before us, namely, that the failure to carry liability insurance makes the political subdivision amenable to a tort action.
The preamble to Act 165 states one of the purposes of the act to be “to require all political subdivisions to carry liability insurance on their motor vehicles”. Then Section 3 says “they shall carry liability insurance on all their motor vehicles”. We think it was the intent of the General Assembly to require such liability insurance.
Two of the fundamental purposes of Act 165 are (1) to set aside Parish v. Pitts, supra, and (2) to make it possible for persons injured by municipally owned vehicles to have redress for negligence. If we hold that the city of Farmington is entitled to the immunity afforded it under Act 165 and at the same time hold that it is not mandatory that it comply with the liability insurance provision thereof, then we have destroyed the second purpose of the act above enumerated. The mandatory provision for carrying liability insurance is so strongly and clearly stated that we cannot agree to such emasculation. We think, and so hold, that any city which fails to conform to the insurance requirement places itself in the posture of being responsible, as would a self-insurer, in case it is found to be liable, in an amount not to exceed the minimum amount prescribed in the Motor Vehicle Safety Responsibility Act. See Ark. Stat. Ann. § 75-1466 (Supp. 1971). We think it reasonable to conclude that the legislature intended that the public be protected to the extent of the recited limits. That may be done in only one of two ways, namely, insurance or self-insurance. Our interpretation avoids opportunities to evade the act. An interpretation which defeats evasion is favored in the law. 50 Am. Jur., Statutes, § 361. Then in Woodruff v. State, 3 Ark. 285 (1840), it was said: “And such construction ought to be put upon it, [the act] as will not suffer it to be eluded”. And in Sutherland, Statutory Construction (4th Ed.) Vol. 2A, § 57.01 we find this significant statement: “No statutory provisions are intended by the legislature to be disregarded; but where the consequences of not obeying them in every particular are not prescribed, the courts must judicially determine them. In doing so they must necessarily consider the importance of the literal and punctilious observance of the provision in question to the object the legislation is calculated to serve.”
Reversed and Remanded.
Fogleman, J., dissents. | [
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Robert H. Dudley, Justice.
This is yet another appeal spawned by Act 593 of 1987 (Regular Session) which governs the issuance of permits for new or expanded hospital facilities, and Act 40 of 1987 (First Extraordinary Session) which, with some exceptions, places a two year moratorium on those permits. See Arkansas Dep’t of Human Serv. v. M.D.M. Corp., 295 Ark. 549, 750 S.W.2d 57 (1988); U.H.S. of Arkansas, Inc. v. City of Sherwood, 296 Ark. 97, 752 S.W.2d 36 (1988); and Arkansas Dep’t of Human Serv. v. Green Acres Nursing Home, 296 Ark. 475, 757 S.W.2d 563 (1988). In this case, UHS of Arkansas, Inc., the appellant, presently operates a psychiatric hospital within two miles of Maumelle. Appellee Charter Hospital of Little Rock plans to construct a similar facility within Maumelle itself. A number of suits involving these parties were pending below when appellee Charter filed this suit in chancery court and obtained a declaratory judgment that it was exempt from the moratorium on licensing. We reverse and remand the case to the chancery court with instructions to transfer the case to circuit court, which had original jurisdiction.
Appellant raises six points of appeal. Since we find merit in the first point, which challenges the exercise of jurisdiction by the chancery court, it is not necessary to address the other points.
In order to understand the issue involving the exercise of jurisdiction, it is necessary to discuss the history of these cases in some detail. Act 593 of 1987 [codified as Ark. Code Ann. §§20-8-101 to -109 (Supp. 1987)], was passed during the Regular Session of the legislature. It was amended by Act 40 of 1987 which was passed during the First Extraordinary Session. Act 40 created a moratorium on the licensing of additional hospital beds which, with some exceptions, will not expire until June 1989. The exception pertinent to the instant case is for municipalities which do not have a hospital, and which have a population of 5,000 or more, and are in a county having a population of 50,000 or more.
Appellee Health Services Agency interpreted Act 593, as amended, to provide not only an exemption from the moratorium for municipalities meeting the exemption’s requirements, but also an exemption from the permit of approval requirement. Appellee Charter Hospital of Little Rock, Inc., proposed construction of a psychiatric hospital in Maumelle, claiming to fall within these exemptions. Appellee Health Services Commission subsequently adopted the agency’s interpretation of Act 593, as amended. The effect of that decision was to refuse to initiate legal action to stop appellee’s proposed medical facility from being built in Maumelle.
On September 23, 1987, appellant filed a petition in circuit court seeking review of the administrative decision. The petition challenged the interpretation of the permit of approval exemption and Maumelle’s population qualification for the moratorium exemption. Charter was not originally a party to the action filed in circuit court; however, it has since sought to intervene. The motion to intervene is currently pending in circuit court.
On October 21,1987, an action for declaratory judgment in a companion case involving the City of Sherwood was filed in chancery court. The Sherwood action sought a declaratory judgment concerning the constitutionality of Act 593, as amended, and the interpretation of the permit of approval exemption. Appellant UHS sought to intervene in the Sherwood declaratory judgment action and was permitted to do so only after an appeal to this Court. UHS of Arkansas, Inc. v. City of Sherwood, 296 Ark. 97, 752 S.W.2d 36 (1988).
On November 4, 1987, appellant UHS filed an action in circuit court seeking a declaratory judgment concerning the constitutionality of Act 593, as amended, the interpretation of the permit of approval exemption, and the interpretation of the population requirement. The UHS declaratory judgment action has been consolidated with the original petition for review which was filed in circuit court on September 23,1987, and both are still pending.
On November 5,1987, appellee Charter Hospital, Inc., filed an action in chancery court seeking declaratory judgment concerning the constitutionality of Act 593, as amended, and the interpretation of the permit of approval exemption. Appellant UHS subsequently filed a motion seeking to intervene in the Charter declaratory judgment action, to consolidate it with the two cases pending in circuit court, and to transfer the chancery cases to circuit court to effectuate consolidation. By order dated December 8, 1987, the chancellor allowed appellant UHS to intervene in the Charter declaratory judgment action, but denied the request to transfer to circuit court and consolidate with the cases pending there.
Appellees sought summary judgment in the Charter declaratory judgment action. The chancery court granted summary judgment finding that Act 593, as amended, did not violate the Arkansas constitutional prohibition against special and local legislation, and that appellee Charter was exempt from the moratorium and from the permit requirement since it satisfied the population requirements of Act 593, as amended. This appeal followed. Appellant contends that the chancellor abused his discretion in accepting jurisdiction of this case and ruling on its merits. The argument is meritorious.
Our declaratory judgment statute does not confer subject-matter jurisdiction. There must be an independent basis for equitable jurisdiction before a chancery court can render a declaratory judgment. City of North Little Rock v. Gorman, 264 Ark. 150, 568 S.W.2d 481 (1978). Here, the independent basis for equitable jurisdiction lay in the challenge to the constitutionality of Act 593, as amended. See American Television Co., Inc. v. City of Fayetteville, 253 Ark. 760, 489 S.W.2d 754 (1973). Thus, the “jurisdictional” issue involved in the instant case concerns matters of propriety rather than subject-matter jurisdiction.
The rules concerning the propriety of a court exercising jurisdiction over a declaratory judgment action are not complicated. Declaratory judgment statutes are intended to supplement rather than supersede ordinary causes of action. Consequently, when another action between the same parties, in which all issues could be determined, is actually pending at the time of the commencement of an action for a declaratory judgment, the court' abuses its discretion when it entertains jurisdiction. Mid-State Const. Co. v. Means, 245 Ark. 691, 434 S.W.2d 292 (1968); City of Cabot v. Morgan, 228 Ark. 1084, 312 S.W.2d 333 (1958). If this were not the law, one could be charged in circuit court with violating the law, and the accused could seek a declaratory judgment in chancery court that the law was unconstitutional. Aside from the fact that the courts might rule differently, creating unnecessary confusion, such a system would create an extra burden on the trial courts, increase the appellate load, and thoroughly confuse the law enforcement agencies and the public.
Applying the aforementioned rules to the facts of the instant case, it is clear that the chancery court abused its discretion in exercising jurisdiction. At the time the Charter declaratory judgment action was filed in chancery court on November 5, 1987, the UHS petition for review was pending in circuit court. The parties to the petition for review action are appellant UHS and appellees Health Services Agency and Health Services Commission. Appellee Charter Hospital of Little Rock, Inc., has also sought to intervene in the case. Thus, the same parties are involved in both cases. Further, all of the issues sought to be determined by the parties are pending before the circuit court. It is of no consequence that the issue challenging the constitutionality of Act 593, as amended, was not raised in the original petition for review since it could have been raised at that time, and subsequently has been. City of Cabot v. Morgan, 228 Ark. 1084, 312 S.W.2d 333 (1958).
Appellees assert in a footnote to their argument that the circuit court has no jurisdiction over appellant’s administrative appeal because the decision for which they seek review was not an administrative adjudication. A similar assertion of lack of jurisdiction was raised in City of Cabot v. Morgan, 228 Ark. at 1086. Here, as well as there, the argument is rejected because the circuit court’s subject-matter jurisdiction is an issue which can best be decided in the first instance by the circuit court, along with all of the other issues concerning these parties.
Finally, appellees argue that even if the chancellor should have considered transferring the case to circuit court, the issue regarding the constitutionality of the act clearly falls within the “public policy” exception of Wood v. Goodson, 253 Ark. 196, 485 S.W.2d 213 (1972):
The rule, that constitutional issues will not be determined unless their determination is essential to a disposition of the controversy, like all other judge-made rules admits of certain exceptions. One of those exceptions is where the settlement of the controversy involves a matter of public importance.
The argument is without merit. The Wood case did not involve the exercise of jurisdiction between two courts with the same issues pending in both. The constitutional issue will be decided by the circuit court in this case.
We reverse and remand with instructions to transfer this case to circuit court. | [
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John A. Fogleman, Justice.
This appeal questions the propriety of a summary judgment recovered by ap-pellee insurance company against Joe A. Arnold, its agent in Eudora. The liability asserted by appellee arose through the issuance by Arnold of eight certificates of credit life insurance for a total of $11,163.04 on the life of Van B. Austin, who died on January 8, 1972, while all were in force. Appellee’s recovery was based upon the issuance of certificates in excess of $10,000, the limit on Arnold’s authority. Because of evidence of appellee’s ratification of the agent’s acts, we agree with appellant that the summary judgment against him was erroneous.
Arnold was an officer of The Eudora Bank. The certificates issued by him were coincident with loans made to Austin by that bank. The numbers, dates and amounts were as follows:
Certificate No. Date Amount
3695S 1/20/70 $ 3,489.84
698S 3/5/71 3,416.76
6S2S 3/26/71 800.00
1883S. 6/14/71 856.44
1782S 8/17/71 1,000.00
17838 8/17/71 800.00
1784S 8/17/71 200.00
1785'S 8/17/71 600.00
TOTAL 11,163.04
The°se were all issued under a credit life master policy issued by appellee to the bank on April 21, 1969, on which date Arnold was appointed as appellee’s agent. Under the provisions of the policy, the insurance on the life of the bank’s borrower was effective simultaneously with the making of the loan if the name of the debtor was furnished and the insurance premium paid. The policy limited coverage to $10,000 on the life of any one debtor. It provided for payment, upon death of an insured debtor, to the bank to the extent of its interest, and since the certificates were “level term” any excess was then to be paid to the estate of the debtor.
By letter of September 4,' 1969, appellee directed Arnold’s attention to the limitation on his authority to issue certificates on the life of one debtor. Appellee furnished its agent a form for reporting certificates issued under the master policy and remitting the premiums. These reports were made monthly. The form did not provide a place for listing names of debtors, but about the twenty-fifth day of each month a copy of each certificate was transmitted to appellee along with the report and remittance for the total premiums involved.
Appellee promptly paid $10,000 to the bank, but did not pay the excess to the executrix of Austin’s estate until after she had filed suit and obtained judgment against appellee. Appellee defended on the basis of the master policy limits, and cross-complained against Arnold for any amounts it was required to pay Austin’s estate, alleging that he had exceeded his authority. Arnold defended by pleading estoppel and waiver of both the policy limita tion and the limitation on his authority. Both appellant and appellee then filed motions for summary judgment based upon the pleadings, answers to interrogatories and requests for admissions. The circuit court granted appellee’s motion and rendered judgment for $800.
It was disclosed that appellee, after paying the bank, tendered the return premium on certificates 1784S, 1785S and for pardal cancellation of 6S2S exactly two months after Austin’s death. No explanation is made for the apparent random selection of policies on which to return the premium, but it is clearly indicated that the $10,000 payment included certificate number 1788S, issued on the same date as 1784S and 1785S. There is no indication that issuance of certificate number 632S was unauthorized, because the amount of credit life insurance on Austin outstanding prior to the issuance of this $800 certificate was only $6,906.60. Arnold stated in his affidavit that he never received notice of issuance of certificates on Austin’s life in excess of limits until after claim was made on the policies by Austin’s executrix. Appellee admitted that, prior to the death of Austin, it had not notified either the bank or Austin of any over-issue of certificates. By answers to interrogatories, appellee stated that, under its procedures, each individual certificate is reviewed to determine compliance with the terms of the master policy. It also informed the court that a data processing control system to disclose issuance of certificates in excess of $10,000 on the life of one person had been established after January 1, 1972, but that the system was new and still in the process of being perfected. Appellee admitted receipt before September 1, 1971, of Arnold’s report and premium remittance dated 8/24/71 covering the period from July 29, 1971, to August 24, 1971, together with copies of certificates 1782S, 1783S, 1784S and 1785S.
The circuit judge held that appellee was entitled to recover $800 from Arnold, as a matter of law. We do not agree. The judgment was based upon the court’s finding that appellee advised Arnold of the cancellation of excessive certificates as soon as it knew of the over-issue. Apparently, the judgment was limited to the face amount of certificates 1784S and 1785S, because the issuance of certificate 632S did not result in an over-issue.
We do not know how the court arrived at the finding that, as a matter of law, appellee acted to cancel the excess certificates as soon as it knew of the over-issue. It is admitted that a full report of the issuance of each certificate on Austin’s life had been in the hands of the insurance company for at least four months prior to Austin’s death. The information included the date and term of the certificate, its amount, the name of the debtor insured and a designation of the master policy. Consequently, appellee had been informed of everything Arnold knew relating to these particular certificates. Even when appellee remitted $10,000 to the bank on February 23, 1972, it did not then tender any return premium or attempt to cancel any certificate. It waited for two weeks thereafter to do so, at which time demand for payment of the excess had been made by the attorney for Austin’s estate.
At the outset, we point out that appellee’s argument that the judgment should be affirmed because there is substantial evidence to support it has no application to a summary judgment in its favor. The only conditions that justify granting a summary judgment are those under which the moving party is entitled to judgment as a matter of law. Borden, Inc. v. Wommack, 253 Ark. 1067 (1973), 490 S.W. 2d 781; Weathers v. City of Springdale, 239 Ark. 535, 390 S.W. 2d 125; Ark. Stat. Ann. § 29-211 (Repl. 1962). These conditions exist only when there is no genuine issue as to any material fact and when, even though the facts are undisputed, reasonable, fair-minded persons could only draw one conclusion from them. Borden v. Wommack, supra; Wilson v. McDaniel, 247 Ark. 1036, 449 S.W. 2d 944; Mason v. Funderburk, 247 Ark. 521, 446 S.W. 2d 543; Harvey v. Shaver, 247 Ark. 92, 444 S.W. 2d 256; Bergetz v. Repka, 244 Ark. 60, 424 S.W. 2d 367. We do not find such a condition to prevail here. The burden was upon appellee to show its entitlement to summary judgment, and if there is any substantial evidence on which a contrary result could be reached, the judgment should be denied. Widmer v. Modern Ford Tractor Sales, 244 Ark. 696, 426 S.W. 2d 806; Wirges v. Hawkins, 238 Ark. 100, 378 S.W. 2d 646; Reddell v. Missouri Pacific Railroad Company, 238 Ark. 753, 384 S. W. 2d 486. See also, Knox v. Goodyear Stores, 252 Ark. 530, 479 S.W. 2d 875. Appellee failed to meet this heavy burden.
Appellant contends that since he had made full disclosure to his principal of all information he had relating to the issuance of the Austin certificates, ap-pellee had all the knowledge appellant had of the over-issue; and, by failing to protest and keeping the premiums until claim was made on the certificates by Austin’s estate, it waived the limitation on his authority, ratified his acts in the premises and is estopped to seek reimbursement from him. Insofar as the evidence disclosed by the record relied upon on the motions for summary judgment is concerned, we agree with appellant. To say the least, there is a genuine, material issue of fact raised by appellant’s defense.
In the law of agency the concept of ratification is closely related to the doctrine of estoppel, even though the two may be distinguished. The matter is discussed by the authors of Corpus Juris Secundum. They say:
Ratification is a doctrine of agency, which is well-established in the common law, and it refers to the express or implied adoption and confirmation by one person of an act or contract performed or entered into in his behalf by another without authority. * * * The substance of the doctrine of ratification is the idea of confirmation after conduct, and the doctrine is based on evidence of such complex factual elements as knowledge of the facts, acceptance of benefits, change of position, agency, and approval of conduct. Ratification proceeds upon the assumption that there has been no prior authority and constitutes a substitute therefor; it is in the nature of a cure for authorization and is equivalent to original, prior or previous authority.
Although it has been observed that in the literature of the law there has often been little disposition to distinguish between ratification and estoppel in pais, they are, nevertheless, distinguishable, * * *.
The substance of ratification, as distinguished from that of estoppel which is the inducement to another to act to his prejudice, is confirmation after conduct. Although acts and conduct amounting to an es-toppel in pais may also amount to a ratification, the elements of an estoppel in pais are not, as such, required to be present in order to have a complete ratification. Hence, where there exists, in fact, a sufficient ratification, there is no need of invoking the doctrine of estoppel.
* * * notwithstanding their capability of being distinguished, ratification and estoppel are closely allied; the legal effect thereof is the same; the abstract difference between them may not render it improper to consolidate them, or to include one in the other, in the concrete consideration of the facts of a particular case; and the terms “ratification” and “estoppel in pais” are sometimes used in a way which seems to ignore any distinction between them.
The agent may sometimes invoke estoppel against his principal when the latter seeks to hold him responsible for unauthorized acts. If the principal upon being informed of them does not promptly repudiate them, he will be estopped to deny the agent’s authority, and this is so where he has knowledge of such acts and accepts the benefit of them.
While it cannot be said that Arnold was induced to exceed his authority by any act of his principal, we will consider the matter in the light of the interrelationship of the two principles rather than according to the strict abstract distinctions between them. The facts pleaded and shown on motion for summary judgment are sufficient in our opinion to raise the questions of waiver, estoppel and ratification.
It is well settled in Arkansas law that when the principal has knowledge of the unauthorized acts of his agent, and remains silent, when he should speak, or accepts the benefit of such acts, he cannot thereafter be heard to deny the agency but will be held to have ratified the unauthorized acts. St. Louis-San Francisco Railway Co. v. Lee Wilson Company, 212 Ark. 474, 206 S.W. 2d 175. It is also clear that ratification may be implied, rather than express, and implied ratification may be inferred from the acts and words of the principal. Kirkpatrick Finance Company v. Stotts, 185 Ark. 1089, 51 S.W. 2d 512. It has been said that affir-mance of an unauthorized transaction may be inferred from a failure to repudiate it, or from receipt or retention of benefits of the transaction with knowledge of the facts. Restatement of the Law, Second Edition, Agency, §§ 94, 98, 99; 3 Am. Jur. 2d 560 — 564, Agency, §§ 175, 176, 178. Of course, less is required to constitute a ratification as between the principal and a third party than between principal and agent. Kirkpatrick Finance Company v. Stotts, supra. However, it seems to be well recognized that ratification of unauthorized acts of an agent acting in excess of his powers releases the agent from liability to the principal for violation of his duty, if the principal has full knowledge of all the circumstances at the time of the ratification and has not been obliged to affirm the act to protect his own interests or induced to do so by misrepresentation or duress of the agent. Restatement of the Law, Second Edition, Agency, § 416; 3 Am. Jur. 2d 571, 587, Agency, §§ 186, 210.
A fundamental requirement to finding ratification, at least when the principal has not received any benefits from the transaction, is that the principal have full knowledge of all material facts connected with the transaction and not merely an opportunity to know them. McCarroll Agency v. Protectory for Boys, 197 Ark. 534, 124 S.W. 2d 816; City National Bank v. Riggs, 188 Ark. 420, 66 S.W. 2d 293; Bank of Hoxie v. Wollen, 181 Ark. 843, 28 S.W. 2d 61; Coffin v. Planters Cotton Company, 124 Ark. 360, 187 S.W. 309. But failure to object may constitute acquiescence or ratification, if from the facts and circumstances adduced in evidence, it can be said that the principal must have known, or had knowledge of facts to put him on notice, of the agent’s unauthorized actions. Brown v. Maryland Casualty Company, 246 Ark. 1074, 442 S.W. 2d 187; American Mortgage Company v. Williams, 103 Ark. 484, 145 S.W. 234. See also, Johnson v. Wynne, 76 Ark. 563 89 S.W. 1049. Ratification is a question of fact for a jury whenever the facts are in dispute or are such that reasonable men could draw different conclusions therefrom, and is a question of law only when the facts are undisputed and unequivocal. See Johnson v. Wynne, supra; 3 Am. Jur. 2d 564, 779, Agency, §§ 178, 359. See Restatement of the Law, Second Edition, Agency, р. 244, § 94, Comments a, b; p. 254, § 98, Comments с, d.
Even though it is ordinarily true that the principal must have knowledge and not mere notice of the facts and circumstances relating to the agent’s action before there can be a ratification of them, the principal is charged with such knowledge, when benefits accrue to or are retained by him, if from all the facts and circumstances in the case he knew or could have known the material facts. Lakeside Bridge and Steel Company v. Duvall, 179 Ark. 963, 19 S.W. 2d 1107.
If it is inferable from all the facts and circumstances that appellee accepted or retained the premiums on the questioned certificate with full knowledge of all the facts, or with knowledge of facts sufficient to put it on notice of the over-issue, a factual issue was presented. Alexandria Refining Company v. Harper, 173 Ark. 1180, 292 S.W. 135; Johnson v. Wynne, supra. If, from all the circumstances in evidence, appellee could have known that the agent had exceeded his authority and still retained the benefits accruing to it, a jury would be justified in inferring that appellee actually had sufficient knowledge upon which to base a finding of ratification. Lakeside Bridge & Steel Company v. Duvall, supra. See also, Johnson v. Wynne, supra.
We find a close parallel to this case in Neeley v. Wilmore, 131 Ark. 328, 198 S.W. 710, which puts to rest any doubt about the propriety of a summary judgment in this case. There the principal sought to recover from its plantation manager the amounts he paid its bookkeeper as salary in excess of the amount due. The payments were made by drafts signed by the manager which showed upon their face that they were for salary. Annual statements of the account on which the drafts were drawn were furnished to the principal. The manager testified that the books were open to inspection by the principal when he visited the farm and that the annual statements included the checks drawn in fayor of Harrison on his salary account. The circuit judge instructed the jury to the effect that continuing to pay the drafts if the principal knew, or by the exercise of reasonable care should have known, that the salary account was overdrawn constituted ratification. We said:
If any examination had been made by appellants they would have seen at the end of each year that Harrison had overdrawn his account. By continuing to pay drafts for his salary when they knew that his salary accounts were overdrawn, or were in possession of facts which would lead to such knowledge, they ratified the action of appellee. It was the duty of appellants to have examined the drafts showing overpayments of salary to Harrison, and they will be deemed to have been in possession of the knowledge which such an examination would have imparted to them. The continued payment of drafts drawn by appellee in favor of Harrison for his saiary after this, as above stated, constituted a ratification of appellee’s action. Hence the instruction was not erroneous.
The only excuse offered by appellee for not having full actual knowledge of the over-issue is that the certificates were filed by it under the name of the creditor holding the master policy, so that it had no means of determining whether multiple certificates on one life had been issued in excess of the limits of the master policy and of the agent’s authority. To put the matter most favorably to appellee, the determination whether it was charged with knowledge of the over-issue under these circumstances would pose a jury question.
Upon this view of the matter, the judgment must be reversed and the cause remanded for further proceedings consistent with this opinion.
2A C.J.S. 646, Agency, § 63
2A C.J.S. 649, Agency, § 64
31 C.J.S. 377, Estoppel, § 60
2A C.J.S. 638, Agency, § 61 | [
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John I. Purtle, Justice.
This is an appeal from the denial of a Rule 37 petition by the Sebastian County Circuit Court. For reversal the appellant argues that the trial court erred in determining that there was a factual basis for the court to have accepted the appellant’s plea of nolo contendere. The record reveals that a factual basis for the plea was indeed established before its acceptance by the trial court. The decision of the trial court is therefore affirmed.
On July 9, 1987, the appellant entered a plea of nolo contendere to charges of robbery and theft of property. He was sentenced to a term of twenty years in the Arkansas Department of Correction with five years suspended. The appellant subsequently filed a petition with the circuit court in which he sought to have his nolo contendere plea set aside, alleging that there was not a factual basis for the acceptance of the plea by the trial court.
On March 16, 1988, the trial court conducted a hearing on appellant’s motion for post-conviction relief. It is admitted by the parties that the court did make an inquiry into the factual basis for the appellant’s plea of nolo contendere. At the time of the entry of the plea the court inquired of appellant’s attorney (not the attorney for this appeal) whether there was a factual basis for the court to accept the plea and the attorney responded in the affirmative. The deputy prosecutor was then called upon to give the court the factual basis for the charges. The deputy prosecutor then recited facts to the court which, if proven, would without question have supported a conviction on the charges. After the factual basis to support acceptance of the plea was presented to the court, the court addressed the appellant as follows:
COURT: Are you contesting those facts? Are you saying they are not true?
MR. ASHBY: No, sir, I am not saying they are not true and I am not saying they are true. I don’t know.
The appellant admitted in open court, at the time of the entry of his plea, that he had been with a co-defendant on the night of the crime. He further admitted that he was aware what witnesses had said about his participation in the crime, and that if the witnesses testified at trial and were believed, that their testimony would constitute sufficient evidence to support a conviction.
The appellant’s argument primarily is that the factual basis to support the acceptance of a plea of nolo contendere must come from the accused personally. In support of this argument the appellant relies upon A.R.Cr.P. Rule 24.6 and several Arkansas cases including Jones v. State, 288 Ark. 375, 705 S.W.2d 874 (1986); Reed v. State, 276 Ark. 318, 635 S.W.2d 472 (1982); and Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980).
Rule 24.6 provides:
The court shall not enter a judgment upon a plea of guilty or nolo contendere without making such inquiry as will establish that there is a factual basis for the plea.
We have many times held that this rule is mandatory upon the trial court. See Jones v. State, supra. However, substantial compliance is all that is required. Shipman v. State, 261 Ark. 559, 550 S.W.2d 424 (1977).
In Jones we commented:
Although we find the trial court in substantial compliance with Rule 24.6, this court has observed a growing trend among trial judges to make casual and indirect inquiry as to the factual basis for pleas. Inasmuch as Rule 24.5 requires the trial court to address the defendant personally to determine whether or not any force or threats, or any promises apart from the plea agreement were used to induce the plea, the trial court could, and should, comply with Rule 24.6 by continuing a direct inquiry of the defendant as to the factual basis for his plea. This would, for all practical purposes, eliminate problems of compliance with this rule requiring inquiry as to the factual basis for a plea.
288 Ark. at 380.
Rule 24.6 applies to either a guilty plea or a plea of nolo contendere. No distinction is made between the two in this rule. Unlike Rule 24.5, which requires that the court address the defendant personally before accepting a plea, Rule 24.6 only requires that the court shall make “such inquiry as will establish that there is a factual basis for the plea.” We have held that the factual basis to support the plea does not have to come from the accused himself. Smith v. State, 291 Ark. 496, 725 S.W.2d 849 (1987). We stated in McDaniel v. State, 288 Ark. 629, 708 S.W.2d 613 (1986):
We have held, and we continue to hold, that compliance with Rule 24 is mandatory. [Citations omitted.] In Shipman v. State, 261 Ark. 559, 550 S.W.2d 424 (1977), we held that substantial compliance was sufficient. In that case the prosecutor stated the details of the crimes to the court, but our opinion points out:
The judge determined, by inquiring of appellant himself, that appellant knew that he was waiving his right to a jury trial, was voluntarily entering a guilty plea to the charges, and was in fact guilty and that he knew that the judge was not bound to accept the terms of the plea bargain.
Here there was no substantial compliance, as the court did not inquire of the appellant whether he was in fact guilty.
McDaniel held that an inquiry by the court of the prosecutor whether there is a basis for the charge against the accused does not standing alone satisfy the requirements of Rule 24.6. However, it did not hold that the prosecutor may not supply the factual basis for a guilty plea provided the defendant personally admits to the court that he did in fact do the things recited to the court in his presence.
Our most recent case concerning the requirement that the trial court establish a factual basis before accepting a guilty plea is Furr v. State, 297 Ark. 233, 761 S.W.2d 160 (1988). There we stated:
A factual basis requires the existence of sufficient evidence from which a judge may fairly conclude that a defendant could be convicted if he chose to stand trial. . . .A factual basis is most commonly established by inquiry of the accused, of the prosecutor and an examination of the presentence report. . . . Significantly, Rule 24.6, unlike Rule 24.4 and Rule 24.5, contains no requirement that the accused be addressed personally by the trial judge in determining the factual basis for a guilty plea. . . . The evident purpose of the factual basis requirement is to prevent an accused from unwittingly pleading guilty on the mistaken assumption that his conduct was unlawful unless in fact it was not.
In Snelgrove v. State, 292 Ark. 116, 728 S.W.2d 497 (1987), we considered the standard which a trial court must use in order to establish a factual basis for a plea of nolo contendere. We stated: “The record from the plea hearing and the post-conviction hearing establish that there was a factual basis for the pleas and there was sufficient evidence from which the trial court could conclude that appellant would be found guilty if he elected to proceed to trial.” The opinion stated that in the future the rationale utilized in McDaniel v. State, supra, would be applicable to pleas of nolo contendere. We specifically suggested in Snelgrove that “[a]fter the prosecutor makes a proffer of the facts which he would prove, the judge can ask the accused: ‘Are these the facts which you do not contest?’ ”
The record clearly demonstrates in the present case that the accused “did not contest” the facts which were presented to the court, and admitted that these facts would sustain a conviction had the appellant elected to go to trial. The record is clear that the appellant knew that he was waiving a jury trial and the right to appeal and that he knew the range of penalties. Furthermore, he knew what the recommendation of the prosecutor would be regarding his sentence. The appellant’s only argument is that he did not know whether the facts were true or not. Appellant stated that his lack of knowledge was based upon the fact that he had been drunk for two years.
Trial courts are required to treat a plea of nolo contendere the same as if it were a plea of guilty. See Rule 24.6. There is no distinction in the factual inquiry required for acceptance of a guilty plea and a plea of nolo contendere. After all, the purpose of making a factual inquiry, from whatever source, is to be certain that the accused could be found guilty of the offense and is not entering his plea based upon a misunderstanding of the law. The evidence is abundant in the present appeal that there was a factual basis for the acceptance of the plea of nolo contendere.
Affirmed.
Hickman, J., concurs. | [
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Hart, C. J.,
(after stating the facts). The first contention of appellants, Shultz Construction Company, is that the court erred in not directing a verdict in their favor. In this contention, we think they are correct. It is settled in this State, as well as elsewhere, that one who takes a negotiable note, payable to order, by delivery merely and without written assignment, is not an innocent purchaser and takes subject to all equities between the original parties. Webster v. Carter, 99 Ark. 458, 138 S. W. 1006 ; and Harrison v. Morgan-Curry Co., 115 Ark. 54, 170 S. W. 578.
When the instrument is payable to the order of the payee, indorsement is necessary to constitute the holder of commercial paper a purchaser in the ordinary course of business, and where he receives the paper by assignment or sale instead of indorsement, he takes it subject to all equities. In the application of this principle of commercial law in O. J. Lewis Mercantile Co. v. Harris, 101 Ark. 4, 140 S. W. 981, 37 L. R. A. (N. S.) 544, it was held that the drawee of a draft, payable to order, who takes upon a forged or unauthorized indorsement does so at his peril. The court said that it is well settled that the holder of commercial paper, payable to order, must trace his title through a genuine indorsement, and that the drawee of a draft, payable to order who takes upon a forged or unauthorized indorsement does so at his peril. Again, in the application of the principle in Schaap v. First National Bank, 137 Ark. 251, 208 S. W. 309, it was held that a bank collecting checks payable to plaintiff, which were without authority indorsed by plaintiff’s collecting agent, is liable therefor to plaintiff if he was innocent of fraud or negligence, irrespective of the bank’s good faith in paying the check to another than plaintiff.
This is in recognition of the general rule that a bank or other corporation, or an individual, who has obtained possession of a check upon an unauthorized or forged indorsement of the payee’s signature and who collects the amount of the check from the'drawee or holder of the check is liable for the proceeds thereof to the payee or other owner, notwithstanding they have been paid to the principal, from whom the check was obtained. Allen v. Mendelsohn & Son, 207 Ala. 527, 93 So. 416, 31 A. L. R. 1063 ; Merchants’ Bank v. National Capital Press, 53 App. D. C. 59, 288 Fed. 265, 31 A. L. R. 1066 and case note at 1068 ; and California Stucco Co. v. Marine National Bank, 148 Wash. 341, 268 Pac. 891, 67 A. L. R. 1531.
This rule of commercial law has not been changed by our Negotiable Instruments Act. Section 7796 of Crawford & Moses’ Digest, provides that an'instrument is negotiated when it is transferred from one person to another in such manner as to constitute the transferee the holder thereof. If payable to bearer, it is negotiated by delivery; if payable to order, it is negotiated by the indorsement of the holder completed by delivery. Section 7797 provides that the indorsement must be written on the instrument itself. Section 7825 provides that every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument is defective, the burden is on the holder to prove that he or some other person under whom he claims acquired the title is holder in due course. Section 49 provides .that when the holder of an instrument payable to his order transfers it for value without indorsing it, the transfer vests in the transferee such title as the transferrer had therein, etc.
In the present case, the undisputed evidence shows that the check was cashed by the plaintiff and was not indorsed by the Barnsdall Refining Company to the order of which it was drawn by the Shultz Construction Company. Hall testified in positive terms that he did not indorse it and had no authority to do so. Spradley testified that Hall did not indorse it for the Barnsdall Company, and that he indorsed it for that company. He admitted that Hall told him that he had no authority to indorse it. If Hall did not indorse it and had no authority to do so, he could not confer such authority upon Spradley. The cashier of the bank says that Spradley indorsed it in his presence before he cashed it. He also said that it was purported to ¡be indorsed by the Bamsdall Refining Company, and if the cashier had made a close inspection of that indorsement, he would have seen that it was in the same handwriting as the indorsement of his own name by Spradley. Therefore the undisputed evidence shows that the bank cashed the check with the indorsement of the payee on it by a person who was not authorized to indorse it. In this view of the case, the bank took the check without the indorsement of the payee on it, and thereby took it subject to all equities. The undisputed evidence shows that the Barnsdall Refining Company does not claim that the Shultz Construction Company owes -it anything or that it authorized the check to be drawn in its favor. The Barnsdall Refining Company does not claim that the construction company owes it the amount of the check or that it is entitled to it. Hence there is no liability on the part of the defendant construction company to an action on the check.
This brings us to a consideration of whether there would be any liability on the tickets which are purported to have been given haulers to haul batch on the road work near Charleston in Franklin County, Arkansas. We are of the opinion that the undisputed evidence shows that these checks were not issued by the Shultz Construction Company or by any one for it. Mahoney testified positively that he did not issue any of the checks. He examined them all and said that the signature which purported to be his own was not signed by him nor was any one else authorized to sign them for him. Boy Shultz, one of the defendants, testified that he was on the work at all times and knew in a general way that most of the tickets which had been issued to haulers on the work had been cashed at the branch office of the company at Charleston. Most of the haulers were witnesses in the ease and testified that they cashed their tickets at the office of the company. Boy Shultz also testified that he was familiar with the signature of Mahoney and that the signature in question was not that of Mahoney. Mahoney said that he signed the tickets with an indelible pencil, and that the tickets examined by him had been signed in pen and ink. Thus it will be seen that the undisputed evidence shows that the tickets in question were not issued by the defendants.
The mere fact that the tickets were issued on the blank forms prepared by the defendants does not show that they were issued by authority of the defendants. All banks prepare printed forms to be used in .their business, but these blanks are to be filled out and used by the customer. The mere fact that a company has blank forms for use in its business does not imply that any one who fills them out makes a prima facie case of his right to do so. The undisputed evidence shows that the tickets in question were signed by some one who was not authorized to do so, and it is immaterial, for the purposes of this case, to discuss or consider who that person might have been. It is sufficient to say that the undisputed evidence shows that it was not done by an agent of the Shultz Construction Company or by any one authorized by them to issue them. •
It follows that the judgment must be reversed, and, inasmuch as the case seems to have been fully developed, the complaint will be dismissed here. | [
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Butler, J.
This is a suit for damages for killing a dog by the operation of appellant’s train. It is conceded by appellant that “under the testimony adduced on the part of the plaintiff and that admitted in evidence by stipulation of counsel on the part of the defendant, a question of fact was presented for the determination of the jury.” There are hut two assignments of error which are here pressed for reversal of the case.
1. During the progress of the trial one of the witnesses was asked if the whistle or bell of the train sounded and he answered, “No.” To this testimony the defend-' ant objected on the ground that the complaint did not allege negligence in that respect. The objection being overruled, the defendant asked for a continuance alleging surprise, and also for the purpose of enabling the engineer and fireman operating the train to attend as witnesses. This assignment cannot be sustained because in the stipulation of counsel the statement is made that “the engineer did not have time to sound the whistle after the peril of the dog was discovered, and that, even if he had attempted to do so, the dog would have been struck and killed before he could have sounded the whistle.” This statement was admitted as part of the testimony of the engineer and fireman, so the appellant could not have been surprised at the statement of the witness which it had itself admitted as true.
2. The other alleged error is that on the part of the court in giving to the jury instructions Nos. 2 and 5. Instruction No. 2 warranted the jury in returning a verdict in favor of the plaintiff in the event it was found that the dog was struck and killed by the operation of a train “unless you find from the proof in the case that the defendant, through its employees, exercised ordinary care and prudence to prevent the killing of the dog—to avoid it.” That part of instruction No: 5 complained of is as follows: “The killing of the dog being proved, the presumption of negligence arises, but this presumption is not conclusive and may be overcome by evidence to the contrary.” Appellant specifically objected to the giving of instruction No. 2 on the ground that under it “the killing of the dog results in a prima, facie case so as to cast the burden of proof upon the defendant to prove that the dog was not negligently 'killed, and to release the plaintiff from the burden of proving that the dog was negligently killed.” To the giving of instruction No. 5 appellant specifically objected, for the reason “that such presumption when so arising places the burden of proof upon the defendant and releases the plaintiff from proving that the killing of the dog was due- to the negligence of defendant, its agents, servants and employees.” It is argued here that the instructions as given gave to the statutory presumption of negligence the effect of evidence to be weighed against opposing testimony, and to prevail unless there is a preponderance of opposing testimony. Appellant urges that these instructions place such a construction on our statute, § i8562 of the Digest, and that this is violative of the due process clause of Amendment No. 14 to the Constitution of the United States, and cites in support of this contention the case of Western & Atl. Ry. Co. v. Henderson, 279 U. S. 639, 49 S. Ct. 445.
These instructions are not open to the criticism urged, their effect being merely to advise the jury that the fact alone of a showing that the injury was occasioned by the operation of a train would be sufficient to warrant a finding that the appellant was liable for resulting damages, in the absence of any evidence tending to show ordinary care. The act of February 3, 1875 (now § 8562 of the Digest), providing that “all railroads which are now, or may be hereafter, built and operated in whole or in part in this State shall be responsible for all damage to persons and property done or caused by the running of trains in this State” was early construed by this court in the case of L. R. & F. S. Ry. Co. v. Payne, 33 Ark. 816, where the following rule.was laid down:- ‘ ‘ The true construction of the act in question is that, the killing being shown or confessed, the presumption is that it was done by the train, and that it resulted from want of due care. At common law the onus of proving these facts was on the plaintiff. The statute shifts the burden to the defendant, but does not preclude the company from showing that such due care was exercised in pursuit of its lawful business as to absolve it from liability.” This rule has since been adhered to and was recently reaffirmed in the case of St. L. S. F. R. Co. v. Cole, 181 Ark. 870, 27 S. W. (2d) 992, where it is said: “.When the evidence shows that an injury was caused by the operation of a train, the presumption is that the company operating the train is guilty of negligence, and the burden is upon such company to prove that it was not guilty of negligence. ’ ’ The effect of our statute, as above construed, is to make proof of the injury by operation of the train prima facie evidence of want of ordinary care on the part of the operatives in charge of the train, which would warrant a finding against it for damages resulting from the injury on its failure to produce any evidence tending to establish the exercise of ordinary care on the part of its servants. That is all that the instructions complained of do. It must be recognized that in the hurry of the proceedings in the trial court there is frequently not sufficient opportunity for a precise declaration of the law in exact legal terms. These declarations are often drawn in homely phrases so as to be understood by the jury, who are usually men unacquainted with the language of the law. In this case, if the appellant was of the opinion that the instructions complained of did not clearly declare the law, it should have pointed out in what particulars they were dubious. Instead, the appellant rested its objection on a contention which in our opinion was unwarranted. No fair interpretation of these instructions supports the contention of the appellant that the court meant to say or that the jury would understand that the presumption mentioned should be weighed as evidence against the testimony showing the exercise of due care, but only in the absence of any evidence the law imputed negligence to the appellant. This is the more apparent when these instructions are read in connection with instruction No. 3: “You are further told that the railroad company, through its employees, was required to use only ordinary care and prudence to protect this dog after it discovered its peril, and if you find they complied with this duty, it would be your duty to return a verdict for the defendant.”
Therefore, if the engineer and fireman only had witnessed the occurrence and had testified to a state of facts establishing ordinary care on their part, and there were no circumstances which might negative such testimony, then there could have been no finding of negligence, and the presumption would have disappeared, as we have frequently held. 'Since it is admitted that the evidence is legally sufficient to sustain the verdict, and as no error appears, the judgment of the trial court is affirmed. | [
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Holt, J.
We have consolidated these two cases. Each is an original proceeding here under the provisions of Constitutional Amendment No. 7 commonly known as the Initiative and Referendum Amendment.
In case No. 9357 petition was filed with the Secretary of State by various sponsors, seeking to submit a proposed constitutional amendment to repeal Amendment No. 34, commonly known as the “Freedom to Work” amendment, and in case No. 9378 the Arkansas Municipal League filed a petition with the Secretary of State for the submission of a proposed “Home Rule Amendment” to the Constitution.
In both cases plaintiffs asked that this court declare the petitions insufficient, and that the Secretary of State and the State Board of Election Commissioners be enjoined from certifying and distributing election ballots containing the proposed constitutional amendments for submission at the election November 7, 1950.
The undisputed facts in both of the above cases show that the petitions filed with the Secretary of State lacked the required number of valid signatures.
In No. 9357 it is established that the petition contained 25,929 signers, and that 24,930 were required, and that 1,020 of these signatures did not appear in the published, official list of poll tax payers, and in addition 2,616 names had been placed on the petition by someone other than the person whose name appeared, and were in fact forgeries.
In case No. 9378 it is established that the petition contained 25,534 signatures, that 24,930 valid signatures were required, and that the names of 1,423 persons, who were purported to have signed the petition, did not appear on the official poll tax list.
It thus appears from the undisputed evidence that in case No. 9357 only 24,909 names were left unchallenged and that 24,930 valid signatures were required, and in case No. 9378 only 24,111 names were left unchal lenged on the petition and that 24,930 valid signatures were required.
In these circumstances the rule heretofore announced by this court in the case of Hargis v. Hall, 196 Ark. 878, 120 S. W. 2d 335, is controlling here. We held in that case that upon proof being made, as here, that where persons signed the petitions whose names did not appear on the official poll tax list, there is a presumption that they were not qualified electors and in order to overcome this presumption proof to the contrary is required. No contrary proof was offered here. We said in Hargis v. Hall, supra:
“We hold, further, that the official poll tax lists, as certified by the collector and county clerk, contain, prima facie, the names of all persons who are eligible to vote.
* * #
“No testimony has been offered even tending to show that the more than four thousand persons whose names appear on the petition, but did not appear on the official poll tax lists, were qualified electors, and the presumption attaches that they were not.”
As indicated no proof has been offered in either of the cases here to rebut the prima facie evidence showing that the names on each of the petitions, which did not appear on the official poll tax list, were invalid.
Accordingly we hold that both petitions were insufficient and the injunctive relief prayed against respondents is granted. | [
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Leflar, J.
This case arises from a motion for summary judgment against the sureties on a forthcoming bond filed by the defendant after an attachment levied by the plaintiff McFerrin. The Circuit Court found the attachment to be void because title to the attached prop erty was in a third person, then denied the motion for summary judgment. The attaching, plaintiff appeals only from the order denying his motion for summary judgment on the bond.
The principal question presented by the appeal is whether a statutory forthcoming bond remains effectual after the attachment, in connection with which the bond was given, is held to have been invalid. Our decisions say that the bond in such a case does not remain effectual. We have two separate sets of statutes under which such bonds may be filed, and the results reached under both have been the same.
One of the sets of statutes appears in Ark. Stats. §§ 31-124 and 31-126. Rogers v. Reliable Feed Co., 169 Ark. 391, 275 S. W. 705, held that sureties on a forthcoming bond executed under these sections could not be held after it was determined that title to the attached property was in a third person and the attachment was therefore invalid. Also see Applewhite v. Harrell Mill Co., 49 Ark. 279, 5 S. W. 292.
The other set of statutes consists of §§ 31-136 and 31-162. These are the statutes under which the forthcoming bond in the present case was apparently filed. Originally these statutes were interpreted to leave the bondsmen liable even though the attachment be held void. Ferguson v. Glidewell, 48 Ark. 195, 2 S. W. 711. But in 1891 they were amended (§ 31-136) to provide that upon invalidation of an attachment the sureties on the forthcoming bond should be discharged. Burgener v. Spooner, 167 Ark. 316, 268 S. W. 6; Ford v. Wilson, 172 Ark. 335, 288 S. W. 712. This 1891 amendment is controlling in the present case.
The third party intervener whose title in the present case was held to be superior to that of the plaintiff attaching creditor was a prior mortgagee named Umphrey, who intervened in the lawsuit for the purpose of claiming the attached chattels under his prior mortgage. The Circuit Court found that Umphrey’s title under the mortgage was valid and superior, and accordingly dissolved the attachment. From this action of the Court the plaintiff did not appeal. But plaintiff now contends, as against the sureties on the bond, that the attachment was improperly dissolved because the mortgage did not describe the attached chattels with sufficient definiteness to include them within its coverage.
It is true that the mortgage did not specifically describe “200 bundles each containing 30 pieces, size 12" x 12", of hardwood flooring,” which was the property attached. But the mortgage did include “two (2) carloads of oak lumber, random widths and lengths . . . and all other unfinished lumber hereafter acquired by mortgagor.” This was broad enough to support the finding of the Circuit Judge, sitting without a jury, that the mortgage covered the attached property.
Our own examination of the record raises some doubt as to whether Umphrey’s mortgage was ever filed with the recorder. If the mortgage was not filed it of course would not be binding on third persons such as the plaintiff here. Ark. Stats. § 16-201. Similarly, our examination raises a query whether the mortgage might not have been bad as to third persons like plaintiff on the ground that it covered part of a stock of goods exposed for sale while left in the mortgagor’s possession. Lund v. Fletcher, 39 Ark. 325, 43 Am. Rep. 270; Coffman v. Citizens’ Loan & Inv. Co., 172 Ark. 889, 290 S. W. 961. The plaintiff (appellant) did not attack the mortgage on these grounds, and offered no affirmative evidence in support of either of them. In the absence of either argument or affirmative evidence that the intervener’s mortgage failed on these grounds, we must accept the Circuit Judge’s finding that the mortgage was valid.
On this basis, it follows that the Circuit Court was correct in its order holding that the sureties on the bond filed under § 31-136 were discharged. The judgment is affirmed.
Griffin Smith, C. J., not participating.
This was despite the express language of § 31-126: “In any proceeding on this bond, it shall not be a defense that the property was not subject to the attachment.” We do not now find it necessary to pass upon the suggestion that this holding was incorrect and should be overruled.
It might be argued that the two sets of statutes were actually one unit, to be read together, so that the 1891 amendment to § 31-136 operated to repeal § 31-126 altogether. We do not now determine that possibility. | [
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John I. Purtle, Justice.
This is an appeal from a decision of the Washington County Chancery Court confirming title to a certain tract of land in the lineal heirs of A.F. Cox. The trial court held that the will of A.F. Cox had never been probated. Nevertheless, the chancellor, applying the provisions of Ark. Code Ann. § 28-40-104 (1987), confirmed title in tjhe heirs of the decedent, A.F. Cox, as though the terms of the will had been followed. The heirs of A.F. Cox are the appellees, and the appellant is the mother of the widow of John Cox, one of the sons of A.F. Cox. The appellant advances three arguments for reversal: (1) the chancellor erred in finding that the will of A.F. Cox had never been probated; (2) the chancellor erred in applying the provisions of Ark. Code Ann.§ 28-40-104 (1987); and (3) the chancellor erred in ruling that appellant had no interest in this tract of land. We hold that the chancellor ruled correctly, albeit for the wrong reason. The chancellor’s decision is therefore affirmed.
A.F. Cox died in 1936. He was survived by his wife, Minnie Bell Cox, and five children. A.F. Cox left a will dated October 19, 1934. The will designated the widow as the beneficiary of his estate during her lifetime. Upon her death the tract of land here in question was to pass to one of his sons, John Cox, and if John Cox died without issue, the property was then to pass to other heirs of the decedent.
At the time of the death of A.F. Cox, he was survived by his widow and five children, Ila Faye Holden, Laura Cox, Lacy Cox, Wayne Cox, and John Cox. Faye Holden died in 1974 and was survived by a husband (since' deceased) and four children, Margaret Loftin, Denton Holden, Eugene Holden (now deceased), and Dennis Holden (also deceased without issue). Lacy Cox died without marriage or children. Wayne Cox died in 1976, survived by his wife, Georgia Cox, who died in 1986. Wayne and Georgia had no children, but Georgia had children by a former marriage. John Cox died in 1981 without children and was survived by his widow, Mary Cox, who died in 1986. The appellant is the mother of Mary Cox.
We first consider the matter of the probate of the will of A.F. Cox. The will was admitted to probate on August 5,1936. Proof of execution of the will was submitted and letters testamentary were issued to the widow, Minnie Bell Cox, and she was permitted to serve as administratrix without bond. However, the estate was never closed. She never formally completed administration of the estate. By the terms of the will, his widow was given a life estate in this property. Since her estate ended with her death, it was not necessary to probate her estate because her husband’s will provided that upon her death, the property was to pass to John Cox and then to his issue. A.F. Cox’s will further provided that in the event John Cox had no issue, the property was to pass to the other designated heirs of A.F. Cox.
John Cox died without issue and his widow remained on the property for the rest of her life. Had John Cox received the property in fee simple, the laws of descent and distribution in effect at the time of his death would have dictated that title to the property pass to his widow. Upon her death, her mother, as her closest surviving relative, would have received the property. However, John Cox’s estate was limited to his life under the terms of the will of A.F. Cox.
We had a somewhat similar situation in the case of Muldrew v. Dodson, 237 Ark. 852, 376 S.W.2d 672 (1964). In Muldrew the testator died on March 19, 1947, and the beneficiary of the will subsequently took it to the clerk’s office and filed it, together with the necessary proof of execution by the attesting witnesses. We explained in Muldrew that prior to the probate code there was no time limitation upon the filing of a will for probate. However, the code established a five year statute of limitations within which to file a will. This court held that it was the duty of the probate clerk to proceed with the probate of the will after the beneficiary had presented it together with proof of execution. The court pointed out that the probate code took effect on July 1,1949, but specifically provided that “when its application . . . would work injustice in particular proceedings then pending, the former procedure shall apply.” Therefore, under this exception the will here in question could have been probated more than five years after the death of the testator. However, the probate judge examined the will in 1937 and declared it to be the valid will of A.F. Cox and admitted it to probate. There was no objection to that order.
The chancellor gave effect to the provisions of the will which had been admitted to probate in 1936. Since the will was filed and admitted to probate in a timely manner, and there are no inequities resulting from the unusual delay in closing the estate, we see no reason to disturb the chancellor’s decision giving full effect to the will of A.F. Cox. Therefore, the order of partition entered by the chancellor is affirmed.
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John A. Fogleman, Justice.
Appellant was arrested on the 29th day of September, 1970, and charged with the rape of his eight-year-old stepdaughter. On February 5, 1971, Mr. Henry Wilkinson was appointed to represent the appellant. On February 16, 1971, appellant, having previously entered a plea of not guilty, changed that plea to guilty. A jury impaneled to fix the punishment returned a verdict fixing the sentence at 75 years. The prosecuting attorney, pursuant to an agreement with defense counsel, had waived the death penalty. Appellant’s first petition for relief under Criminal Procedure Rule 1, filed on April 22, 1971, was summarily denied. This motion was amended on August 14, 1972. The amended motion was denied after an evidentiary hearing held October 6, 1972. Appellant seeks reversal of the order denying this relief, relying upon the following points:
I. That appellant did not enter the plea of guilty at his trial with full knowledge of the consequences of the plea and should have been granted relief.
II. That the court erred in finding that appellant knowingly, intelligently and voluntarily waived his constitutional rights during the pretrial interrogation stage.
III. That the lower court erred in finding that appellant was effectively represented by counsel.
IV. That appellant was denied due process by the failure of the court to appoint counsel to represent appellant until four months after his arrest and the filing of the information.
V. That the court’s instructing the jury on the law of parole prior to any request for such information denied appellant due process of law.
We shall discuss these points in the order stated.
I.
Appellant contends that he was misled by his appointed counsel so that he believed that if he entered ^ plea of guilty, he would receive a sentence that would make him eligible for parole in not more than two years,. He also complains the trial court took no steps to advise him of the actual consequences of the plea he entered. He contends that this alleged ignorance of the true consequences of his plea rendered it impossible that his plea, was entered knowingly, intelligently and voluntarily. In support of this argument he calls our attention to the facts that he only completed the fifth grade in school, that his ability to read and write was very limited and that he had a long history of alcoholism.
The trial court found that: the guilty plea was not the result of any deception or coercion by either the deputy prosecuting attorney or appellant’s court-appointed attorney; appellant entered his guilty plea with full knowledge of the impact thereof; at no time did appellant’s court-appointed attorney threaten him with the death penalty but only advised appellant that this was a possible punishment, without undue emphasis thereon; and appellant chose to plead guilty of his own free.and voluntary will to avoid the possible imposition of such a penalty.
Appellant testified that between the time Wilkinson was appointed and the time of the trial, he saw Wilkinson on a very regular basis, and Wilkinson led appellant to believe he was going to defend appellant strongly, but later informed appellant that there was nothing appellant could do to avoid being found guilty and that if he did not plead guilty he was certain to get the death penalty. Appellant further testified that on the last day before his trial,, he decided he was not going to get any help and, since Wilkinson had told him that he could get a lighter sentence which would allow him to apply for parole in no more than two years, he decided to change his piea to guilty.
On the other hand, Wilkinson, called as a witness by appellant, testified that he told Clark that the offense with which he was charged carried a penalty ranging from a minimum of BO years to the death penalty as a maximum. According to his testimony, when the prosecuting attorney offered to waive the death penalty if Clark entered a plea of guilty, Wilkinson immediately advised Clark, telling him that, in the event he enteréd a plea of guilty, his punishment would range from 30 years to life imprisonment. He denied threatening Clark with the death penalty or telling him that a plea of guilty would result in his receiving a very light sentence on which he could be paroled in no more than two years. Wilkinson also testified that he informed Clark that the prosecuting attorney would try to get a life sentence upon a plea of guilty and that Wilkinson would try to get a 30-year sentence. According to Wilkinson, appellant’s decision1 to plead guilty was .reached several days after communication to appellant of the state’s offer.
The case came on for trial prior to our acknowledgment in O’Neal v. State, 253 Ark. 574, 487 S.W. 2d 618, that the decision of the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), rendered administration of the death penalty under our existing statutes unconstitutional. The entry of a plea of guilty in order to avoid the possibility of a death penalty is not, in and of itself, an involuntary plea. North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970). The question here is whether the guilty plea was entered intelligently and voluntarily with the advice of competent counsel. Insofar as the advice of counsel is concerned, the burden was upon appellant to show that the advice he received from counsel was not within the range of competence demanded of attorneys in criminal cases. Horn v. State, 254 Ark. 651, 495 S.W. 2d 152; Tollett v. Henderson, 411 U.S. 258, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973). There was ample basis for a finding by the trial court that appellant had failed to meet his burden of overcoming the presumption of competence of counsel. We are certainly unwilling to say that the circuit judge was not justified in accepting the version of appointed counsel over that of appellant in finding that appellant was fully informed as to the impact of his plea of guilty and its potential consequences. The record discloses that appellant affirmatively answered his attorney’s open-court inquiry whether his plea to the charge was guilty. It would certainly be the better practice, for the trial judge, upon the entry of a plea of guilty, to address inquiries to the defendant himself in order to establish beyond doubt that the plea is knowingly, intelligently and voluntarily made and to inform the defendant of the possible consequences of such a plea. His failure to do so in a particular case does not render the plea and the sentence thereon subject to collateral attack for constitutional infirmities, if the record otherwise affirmatively discloses or it is otherwise shown that the plea was entered understandingly and voluntarily.
II.
Appellant contends that a statement given by him to the deputy prosecuting attorney and police officers as a result of pretrial interrogation was involuntary because he had not knowingly, intelligently and voluntarily waived his constitutional guaranties against self-incrimination and of right to counsel. His argument is based largely upon his contention that his waiver could not have been knowingly and intelligently made because he did not understand, and was not capable of understanding, the explanation of these rights. He contends that he was unable to understand because of his deep distress resulting from the accusation made against him, his inability to read or write and his affliction with alcoholism for a great period of time prior to his arrest. Appellant argues thaf his alcoholism so affected his mental processes that he was not able to understand or appreciate the meaning of what was taking place around him.
In support of this allegation, Clark testified that he was half drunk when arrested and taken to the jail, where he was interrogated by Mr. Fletcher Long, Jr., deputy prosecuting attorney and Sgt. Billy Joe Baker, a state police investigator. He admitted having signed two papers, which he said were not explained to him. Clark said he was led to believe that he was helping himself by giving a statement of events of which he knew, that Mr. Long was the best lawyer he could have, that the signing of the waiver of his rights was just a technicality. He admitted that the waiver was read to him, but testified that he was not told that he had a right to remain silent, that anything he said could be used against him in court or that he had a right to advice of counsel before interrogation. He expressed the belief that he signed the statement before he signed the waiver, but professed inability to remember who explained the waiver to him and attributed his memory difficulties to his drinking problem. He explained his failure to raise any question about the truth or the voluntary nature of his statement to advice he claimed that his lawyer had given him to keep his mouth shut unless he wanted to get the death penalty. He admitted that he understood the content of the statement. His mother testified that Clark called her from the jail and “told me he did it.”
Clark’s testimony was contradicted by Long who testified that he read and explained all of the constitutional rights recited in Clark’s waiver to Clark and expressly asked Clark if he understood what had been read. According to Long, Clark responded that he wanted to sign the waiver and to talk about what had happened. Thereafter, Long said, Clark told a totally exculpatory story but when confronted with evidence found in his automobile and the fact that this statement failed to account for a period of an hour and a half, Clark then told the story contained in the statement. Long attributed to clerical error the recording of the time of the signing of the waiver as five minutes later than the commencement of the statement.
Although there was no pretrial hearing to determine the voluntariness of Clark’s confession, the record of the trial, introduced as an exhibit by Clark, discloses that Baker testified that he read the waiver to Clark after it had been explained to him by the deputy prosecuting attorney and before it was signed or any statement of Clark was taken.
This question could and should have been presented to the court during the course of the trial. See Ballew v. State, 249 Ark. 480, 459 S.W. 2d 577; Cox v. State, 243 Ark. 60, 418 S.W. 2d 799. Wilkinson’s version of the failure to do so is based upon his conclusion that the statement could not be excluded after he had interviewed the deputy prosecuting attorney and the officers who knew the circumstances under which it was taken. Of course this statement was offered in evidence after the appellant had decided to enter a plea of guilty. When we consider this fact- or along with the disclosure from the record of trial that Clark elected to testify and, instead of repudiating his confession, attributed his conduct to his drinking, it appears that the circuit court was justified in finding against appellant on this point. Furthermore, a plea of guilty is not rendered subject to collateral attack merely because the accused’s attorney may have, on retrospective consideration, erroneously concluded that a confession was admissible in evidence, if the attorney’s advice was within the range of competence demanded in criminal cases. McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763. See also, Tollett v. Henderson, supra.
III. and IV.
Appellant first argues that the assistance of counsel was ineffective because a lawyer was not appointed to represent him until approximately four months after his arrest. The recórd discloses that soon after his arrest, appellant was committed to the Arkansas State Hospital for observation. Although we feel that it would be much the better practice for the court to appoint counsel for an indigent defendant upon his first appearance before the trial court, appellant has not pointed out any prejudice that resulted from the lapse of time between his arrest and the appointment of counsel for him. His suggestion that he was prejudiced and deprived of due process of law by his commitment to the State Hospital for examination as to his mental competency and legal responsibility for his acts is wholly without merit.
In support of point III, Clark contends that Wilkinson told him so frequently that he was certain to receive the death penalty that he became intimidated by the possibility, and that Wilkinson assured him if he did plead guilty he would receive a sentence permitting parole after two years. He also asserts that: no attempt was made by Wilkinson to prevent the introduction of the alleged confession; Wilkinson made no request that rags found in Clark’s automobile be analyzed to determine the exact nature of substances thereon which were said to have been blood and semen; Wilkinson assured'him that he would not be cross-examined when he took the stand to testify; Wilkinson prejudiced his cause by examining appellant about his history of alcoholism when he testified; Wilkinson failed to cross-examine the alleged victim when she testified and ignored his desire that a prospective juror be peremptorily challenged because of some previous trouble between him and the prospective juror.
In addition to the recitations of testimony set out in discussions of other points, it should be noted that Wilkinson explained his waiver of cross-examination of the young victim. He said that after he observed that her detailing of the particulars of the offense had produced a reaction by the jurors adverse to Clark, he felt that Clark’s best interests were served by permitting the child to leave the witness stand and to be taken out of the vision of the jury as soon as possible. He also attributed his failure to challenge some of the evidence to the fact that Clark had entered his plea of guilty and had, before the offer of waiver of the death penalty was made, admitted to Wilkinson that he had raped the girl and had confessed to it. The record also discloses that Wilkinson exercised all the peremptory challenges appellant was allowed.
Insofar as the trial procedures áre concerned, the most that could have been said of counsel’s actions, if appellant’s version were accepted, was that there were errors, omissions, mistakes, improvident strategy or bad tactics. None of these will suffice even to require an evidentiary hearing on an allegation of ineffective assistance of counsel, much less justify postconviction relief from a sentence. Leasure v. State, 254 Ark. 961, 497 S.W. 2d 1. All of the matters asserted in support of this point, except that pertaining to intimidation or coercion, are matters which are ordinarily within the realm of counsel’s judgment in the conduct of his client’s defense and therefore inappropriate bases for postconviction relief for ineffective assistance of counsel. Leasure v. State, supra. We have heretofore treated the matter of coercion by counsel. We find no error in the court’s finding that appellant’s right to the effective assistance of counsel had been fully protected, and that his rights were fully protected before, during and after his trial. A charge of this sort can prevail only if the acts or omissions of the attorney result in making the proceedings a farce and a mockery of justice, shocking the conscience of the court, or if the representation is so patently lacking in competency or adequacy that it becomes the duty of the court to be aware of and correct it. Leasure v. State, supra. Nothing in this record indicates that any such state of affairs prevailed.
While we deem allegations in appellant’s petition not argued here to have been waived, we note that the attorney explained his failure to subpoena character witnesses suggested to him by appellant by stating he found these persons themselves were of questionable reputation and very vulnerable to attack as character witnesses so that their testimony would be detrimental rather than advantageous. Furthermore, no request of appellant to Wilkinson to appeal the case has been pointed out to us and, in view of the strong case against appellant, we are persuaded that the idea of appeal is a post-confinement afterthought, which may have been prompted by the fact that the death penalty was no longer a hazard.
V.
Appellant’s contention that the court’s instructing the jury on the law, of parole denied him due process of law is also totally without merit. Criminal Procedure Rule 1 is not devised as a substitute for appeal or as a method of review of mere error in the conduct of the trial. It is designed solely to afford a method for collateral attack upon a judgment and sentence upon grounds specified in the rule. Thacker v. Urban, 246 Ark. 956, 440 S.W. 2d 553. Furthermore, the procedure followed by the trial court in giving the instruction in question was not disapproved by this court until well after the date of this trial. Andrews v. State, 251 Ark. 279, 472 S.W. 2d 86. In that case, decided some time after appellant’s trial, we reviewed previous decisions approving such instructions. We concluded that we would no longer give approval to this procedure, but not on the grounds bf violation of due process or other constitutional grounds. We had just such cases as this in mind when we said:
We recognize that appeals may presently be pending where the court, in following previous opinions, may have violated the present admonition. We therefore state that the matter last discussed in this opinion, being only a matter of procedure, shall not be retroactive, but shall become effective when this opinion becomes final.
It should also be noted that when a criminal defendant has entered a plea of guilty after he has had the advice of counsel, he may not thereafter even raise claims relating to deprivation of constitutional rights prior to the guilty plea, except by showing that his plea was not voluntarily and intelligently entered because the advice he received from counsel was not within the range of competence demanded in criminal cases. Tollett v. Henderson, supra. Appellant, as previously indicated, has failed to make the required showing.
Since we find no basis for reversal on the grounds argued here, the judgment is affirmed. | [
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Ed. E. McFaddin, Justice.
The present case is a phase of the same litigation that was before us in the case of Gibson v. Board of Education of Drew County (No. 9195, decided May 29, 1950, ante, p. 386, 230 S. W. 2d 44). To aid in an understanding of the present case, it is proper to consider background information, and then the two cases prior to this one.
When Initiated Act No. 1 of 1948 was adopted many small Districts undertook to accomplish annexation to larger Districts prior to March 1, 1949. One such small District was Jerome District No. 22 (hereinafter called “Jerome”) which embraced territory in both Drew and Chicot Counties and was administered by the County Board of Education of Drew County by virtue of § 80-414, Ark. Stats. 1947, which says, inter alia: “. . . For all school purposes such district, situated in two or more counties, shall be a part of the county in which is situated the largest number of inhabitants of the territory affected.”
On one side of -Jerome was the Dermott Scliool District (hereinafter called “Dermott”) in Chicot County; and on another side was the Portland School District (hereinafter called “Portland”) in Ashley County. Der-mott was a “large” District, as also was Portland; and each was anxious to secure the annexation of Jerome. The record reflects that representatives of each large District met with the patrons of Jerome at a public meeting ; and each representative extolled his District and the benefits Jerome would receive from annexation to Ms District. Accordingly, there was filed with the Drew County Board of Education (hereinafter called “Drew County Board”) a petition, signed by ten per cent of the qualified electors in Jerome, praying that an election be held in Jerome to determine whether it would be annexed to Dermott or Portland. The procedure invoked was under § 80-414, Ark. Stats. 1947.
The election, sought by the petition, was held on February 26, 1949; and the result was: 49 for annexation to Dermott; 34 for annexation to Portland. The Dermott School Board certified to the Drew County Board Dermott’s desire to have Jerome annexed. The Chicot County Board of Education likewise passed a resolution, expressing understanding of, and agreement to, the annexation to Dermott. The County School Supervisor of Chicot County expressed it: “. . . On the entire matter, it is, and was, the intent and feeling of the Chicot County Board of Education to concur and acquiesce in the action of the Drew County Board of Education in ordering the annexation of Jerome ... to Dermott. . ...” This resolution was sufficient under our holding in Acklin v. Jackson County Board of Education, 212 Ark. 422, 206 S. W. 2d 745. Accordingly, on February 28, 1949, the Drew County Board canvassed the result of the February 26th election and adopted a resolution annexing Jerome to Dermott; and all of this was accomplished before March 1, 1949.
FIRST CASE
So much for the background information. C. C. Gibson, a resident and patron of Jerome, undertook to appeal to the Drew Circuit Court from the said order annexing Jerome to Dermott. Such attempt to appeal was Case No. 1627 in the Drew Circuit Court. We refer to this as the “first case.”
While the said Case No. 1627 was pending in the Drew Circuit Court, it occurred to some well-meaning person that possibly because of Initiated Act No. 1 of 1948 the State Board of Education might have jurisdiction to decide to which large District — as between Der-mott and Portland — Jerome should be annexed, since Jerome embraced territory in two counties. Thereupon, Hon. John M. Golden, the Judge of the Tenth Judicial Circuit, which includes Drew County, on July 5, 1949, wrote the State Board of Education a letter to the effect that he had no objections to any efforts by the State Board to settle the controversy if acceptable to all parties concerned. Accordingly, the State Board of Education, by resolution of July 11,1949, undertook to annex Jerome to Portland, rather than to Dermott.
But the Case No. 1627 was still pending in the Drew Circuit Court; and when the resolution of the State Board was presented to the Drew Circuit Court in the said case, then being heard before Judge Golden, some of the parties refused to concede that the State Board of Education had power to adopt its said resolution. Ac cordingly, tlie Drew Circuit Court on July 25, 1949, refused to enter an order in accordance with the State Board’s resolution and entered judgment dismissing Gibson’s appeal; and we affirmed in Gibson v. Board of Education of Brew County, ante, p. 386, 230 S. W. 2d 44. So the “first case” became final.
SECOND CASE
On September 8, 1949, the Portland School District and its directors filed Case No. 1643 in the Dréw Circuit Court, naming the Drew County Board as defendant. We refer to this as the second case. It was in effect a petition for writ of certiorari, seeking to have the order of the Drew County Board of February 28, 1949 (annexing Jerome to Dermott) quashed as null and void; and was filed after the resolution of the State Board, as previously mentioned, and after the final judgment of the Drew Circuit Court in the first case, and while the first case was pending appeal to the Supreme Court. Dermott intervened in the second case and, together with the Drew County Board, resisted the claim of Portland.
On September 29,1949, the Drew Circuit Court heard the cause both on documents and the testimony of seven witnesses (whose testimony has not been preserved), and the Court found, inter alia:
“1. That the Order of the Drew County Board of Education made February 28, 1949, annexing Jerome School District No. 22 of Drew and Chicot Counties, Arkansas, to' Dermott Special School District of Chicot County, Arkansas, is not void on its face and that the Drew County Board of Education in rendering said Order acted within the jurisdiction and authority vested in it by law ;
“3. That plaintiffs, had they proceeded in apt time, could have appealed from the Order of the Drew County Board of Education made February 28, 2949, annexing Jerome School District No. 22 of Drew and Chicot Counties, Arkansas, to Dermott Special School District of Chicot County, Arkansas,'and not having done so, are now barred from maintaining this action, which is in the nature of a proceeding for certiorari to serve in lien of an appeal.”
Thereupon, on September 29, 1949, the Drew Circuit Court dismissed Portland’s complaint, and there has been no appeal from that order: so the “second case” has become final.
THIRD CASE
After the decision of the Circuit Court in the first case, and evidently in order to show its adherence to the Court ruling rather than the State Board’s ruling, the Drew County Board on September 9, 1949, adopted a resolution in effect reaffirming its action of February 28, 1949, which action had annexed Jerome to Dermott. From that resolution of September 9, 1949, C. C. Gibson (the same party who was in the first case) attempted to appeal to the Drew Circuit Court on the theory that the resolution of September 9th was a new decision by the Drew County Board and gave him a new right of appeal ; and such attempted appeal to the Circuit Court becomes the “third case” in this involved litigation. It was numbered Case 1647 in the Drew Circuit Court. Portland intervened to support Gibson, and Dermott intervened to support the Drew County Board in opposition to Gibson and Portland.
In the trial of this third case in the Circuit Court, there was introduced in evidence all of the record in the first case and all of the judgment and exhibits (but without the oral testimony) in the second case. Portland and Gibson contended that the resolution of the State Board of July 31, 1949, was legal and valid and was a complete settlement in favor of Portland. Dermott and the Drew County Board contended that the State Board had no jurisdiction to make its resolution and that the proceedings in the first and second cases precluded Portland and Gibson from any relief in the third case. The Drew Circuit Court (Judge Gus "W. Jones of the Thirteenth Circuit presiding on exchange of Circuits) decided the third case in favor of the Drew County Board and Dermott; and from that judgment there is this appeal.
After a careful study of the excellent briefs filed by both sides, we conclude that the Circuit Court was correct in the judgment in this third case. The State Board of Education in its resolution of July 11, 1949, though motivated by the best of intentions, was, nevertheless, acting on subject matter that did not exist, because such subject matter — i. e., the Jerome District — had ceased on February 28, 1949. Prior to March 1, 1949, the Drew County Board of Education had entered an order which was legal and valid on its face, and which annexed Jerome to Dermott. Therefore, unless the annexation order of February 28, 1949, was held illegal — and it was not so held — there was, on and after March 1, 1949, no “small District” of Jerome in reference to which the State Board could take any action; because the Jerome District, by an order of the Drew County Board of Education, legal and valid on its face, had ceased to exist, and had become a part of Dermott. The correspondence between Judge Golden and the State Board was not for the purpose of divesting the Circuit Court of its jurisdiction, but rather to see if a settlement could be reached that would result in the end of litigation. When the resolution of the State Board was presented to the Court in the first case, it was apparent that some of the litigants would not agree to the resolution; so Judge Golden proceeded to hear the first case and rendered the judgment which dismissed the appeal of Gibson.
Gibson had his day in court in the first case. He failed to properly appeal from the February 28, 1949, resolution of the Drew County Board and is bound by the result of the first case. Portland also could have ap pealed from the February 28, 1949, resolution if it had so desired, hut it did not. Portland is also bound by the result of the second case. In the case of Barber v. Barker, 209 Ark. 704, 192 S. W. 2d 353, Mr. Justice McHaney, in speaking of the necessity of invoking appeal rather than some other remedy, used this very clear language in a case involving school consolidation, to-wit:
“If appellants are making an attack on the regularity or the legality of the proceedings taken to effectuate tlie consolidated district, they have adopted the wrong-procedure. No appeal was taken from the action of the County Board of Education to the circuit court which is the correct procedure in such a case. This was the procedure followed in Sugar Grove School Dist. No. 19 v. Booneville Special School Dist. No. 65, 208 Ark. 722, 187 S. W. 2d 339.”
Also in our opinion in Gibson v. Board of Education of Drew County, ante, p. 386, 230 S. W. 2d 44, we pointed out the Statute governing appeals from the County Board.
So we hold that the third case, i. e., the one now before us, is merely an attempt by Gribson and Portland to re-try issues that were, or should have been, settled in the first and second cases.
Affirmed.
For the terminology in a discussion of this Act, see Stroud v. Fryar, 216 Ark. 250, 225 S. W. 2d 23.
The case of Arnold v. Snellgrove, 198 Ark. 14, 127 S. W. 2d 125, held that this section (then § 11486 Pope’s Digest) applied to dissolution of multi-county Districts, as well as to formation of such Districts.
Of course it was unnecessary under § 80-414, Ark. Stats. 1947, to have an_ election on this matter in the Dermott District or the Portland District. The school boards of these Districts could act without an election. See Acklin v. Jackson County Board of Education, 212 Ark. 422, 206 S. W. 2d 745; and see also Fomby School District No. 26 v. Williams, 203 Ark. 235, 156 S. W. 2d 220.
The language in said Initiated Act No. 1 of 1948 (Acts 1949, p. 1414), evidently thought to be germane to such idea is that in § 3 thereof, reading: “. . . Provided that if any territory shall be annexed to a district administered in another county the question of annexation shall be submitted to the State Board of Education. If in the judgment of the State Board of .Education the proposed annexation should be made, it shall adopt a resolution making the annexation. The resolution shall describe by metes and bounds each district affected by the annexation, and a copy of said resolution shall be sent to the County Clerk of each county affected who shall record same.”
The Initiated Act No. 1 of 1948 says in the second paragraph of section 1: ... “It is the intent of this section to authorize, between the date of adoption of this Act and March 1, 1949, the reorganization or annexation of Districts which would be dissolved by this Act in accordance with existing laws governing reorganization or . annexations.” In Stroud v. Fryar, 216 Ark. 260, 225 S. W. 2d 23, we said: “From the adoption of the Initiated Act until March 1, 1949, each Small District was privileged to proceed towards annexation or consolidation independent of the Initiated Act.” | [
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Leflar, J.
This action was brought by plaintiff Blankenship, a sawmill operator, against defendant Derby, a general insurance agent, on account of the latter’s failure to secure for Blankenship a policy of workmen’s compensation insurance on his sawmill employees. One of plaintiff’s sawmill employees was killed in the course of his employment and plaintiff personally is paying workmen’s compensation benefits to the widow and children, under a Workmen’s Compensation Commission order. At the time of trial plaintiff had paid $1,112 in compensation benefits, and judgment was rendered for plaintiff on a jury verdict in that amount, with the understanding that further sums later paid out by plaintiff under the order might be recovered subsequently. The defendant insurance agent appeals from that judgment.
Initially, defendant filed a general demurrer to the complaint, which demurrer was overruled by the Circuit Judge. This is the first point on which defendant appeals.
The complaint alleged that defendant Derby represented at Warren, Ark., a number of insurance corporations which were in the business of writing various kinds of insurance policies, including workmen’s compensation insurance, and that on July 22, 1948, the plaintiff and defendant agreed at the defendant’s office in Warren that defendant would provide such insurance covering employees on plaintiff’s sawmill operations, plaintiff then paying defendant $262.50 as a deposit on the premium. One allegation in the complaint was that an oral contract was made whereby the insurance was to be in effect at once, but there was an alternative allegation which may be construed as asserting that there was a contract by defendant to proceed diligently to secure an appropriate insurance contract for plaintiff’s benefit. The complaint further set out the injury of a sawmill operative in the course of employment on Aug. 13, 1948, his death on the following day, the fact that the operative left surviving him a widow and nine children, due notice to defendant of the death and related facts, and payments by plaintiff to the survivors in accordance with the workmen’s compensation law.
We cannot agree that this complaint failed to set out a cause of action. Either of the types of contract alternatively alleged in the complaint might have existed, and there would certainly be nothing illegal about either of them. Whether either of the alleged contracts did come into existence, and whether there was then a breach of it by defendant, were questions properly left for determination on the evidence submitted by the parties.
Appellant argues impropriety in the granting and refusal of several instructions to the jury. Chief among these was plaintiff’s instruction 1-A, given by the court over defendant’s objection. This instruction was:
"You are instructed that where an insurance agent undertakes to procure a policy of insurance for another, affording protection against a designated risk, the law imposes upon him the duty, in the exercise of reasonable care, to perform the obligation that he has assumed, and within the amount of the proposed policy, the agent may be held liable for any loss suffered by the applicant attributable to his failure to provide such insurance. In this case, if you believe from a preponderance of the evidence that the defendant Derby contracted with the plaintiff to obtain workmen’s compensation insurance, covering sawmill and logging operations, and that he, Derby, failed to exercise ordinary care or diligence in his efforts to provide said insurance in accordance with his agreement with plaintiff, pr if Derby exercised ordinary care and diligence, but failed to seasonably notify plaintiff of his inability to obtain such insurance, your verdict will be for the plaintiff.”
This instruction was admittedly based upon Felkmeyer v. Engelhart, 54 S. Dak. 81, 222 N. W. 598, in which a similar instruction was sustained. Defendant contends the instruction was necessarily bad because it spoke to the jury in the languages of both contract and tort, a combination which, it is insisted, could not lawfully be urged in a single claim. The answer to this contention lies in the terms of the contract as they were discovered to exist.
‘ ‘ The . . . question, then, is: What duty did the defendant owe to the plaintiff under the contract so made 1' . . . The relation created . . . constituted the defendant an insurance broker, and as such he undertook to use reasonable diligence to get the property insured; that is, upon the facts of this case, he undertook to have the property rated and to take all other steps necessary to authorize him to write the policy, and in the event of his being unable to protect the plaintiff’s property by insurance, then seasonably to notify the plaintiff of his inability so to do, which time, however, did not begin to run until he had had a reasonable time in which to ascertain, by the exercise of ordinary diligence, whether lie could place tlie insurance.” Russell v. O’Connor, 120 Minn. 66, 139 N. W. 148 (building destroyed by fire seven days after oral contract to procure fire insurance.) A contract requiring, either expressly or by inference, that a party use in a given transaction the same standard of care as is fixed by the law of Torts is altogether valid and permissible.
Once it is concluded that there may be a contract to employ due care and diligence in the procurement of a policy of insurance, and that such a contract comes within the allegations of the complaint in the present case, there can be no serious objection to the wording of the instruction quoted. The instruction would be clearer if the word “seasonably” were changed to “within a reasonable time after failing to secure the insurance,” but we cannot say that there was reversible error on the facts of this case in not using the clearer language. The great weight of judicial authority in America permits recoveries against insurance brokers under such circumstances. Burroughs v. Bunch (Tex. Civ. App.), 210 S. W. 2d 211; Rezac v. Zima, 96 Kans. 752, 153 Pac. 500, Ann. Cas. 1918B 1035; Gay v. Lavina State Bank, 61 Mont. 449, 202 Pac. 753,. 18 A. L. R. 1204; Elam v. Smithdeal Realty & Ins. Co., 182 N. C. 599, 109 S. E. 632, 18 A. L. R. 1210; 2 Couch, Insurance, § 468 (p. 1329); 16 Appleman, Insurance, § 8841 (p. 300). We hold that the giving of plaintiff’s instruction 1-A was not reversible error.
The next point urged by appellant, in respect to the instructions, is the trial judge’s refusal to direct a verdict for defendant. This presents the question whether there was any substantial evidence given that can sustain the jury’s verdict for the plaintiff. Such evidence would have to support the findings (1) that there was a contract between plaintiff and defendant, and (2) that defendant broke this contract. If these two facts be established, plaintiff’s damages and consequent right to recover are clear enough.
Defendant himself was asked: “Did you enter into a contract with the applicant to undertake to place this insurance?” His answer was: “I don’t know — yes, it might be a verbal contract that I would endeavor to place it for him. I don’t know if you would call it a contract or not, but that was our understanding on it.”
Plaintiff testified: “I said, ‘What’s the deposit?’ He (defendant Derby) said, ‘It will figure around $262.50,’ and I told him to write me out a check and he wrote out the check for $262.50 and I signed it and handed the check to him. (This'was on July 22, 1948.) . . . He assured me that he wrote it (this kind of insurance) and it was an assigned risk' — in other words, I was taken care of when I signed that check and gave it to him ... I told him that I wanted to start (sawmill operations) in the next few days, didn’t want to take a man until the Workmen’s Compensation insurance started ... I thought the man knew what he was doing and I was influenced by them accepting my check . . . I thought I was taken care of and everything under those conditions.”
In the light of this and other corroborating testimony we cannot say that there was no evidence from which a jury could find that there was at least a contract under which defendant bound himself to exercise ordinary care and diligence to effect workmen’s compensation insurance for plaintiff and to notify plaintiff if he should be unable to effect it in a reasonable time.
Was there substantial evidence that defendant failed to live up to such a contract?
The plaintiff’s own testimony was that he heard no more about the matter after July 22 until he reported the August 13 accident to Derby on the day it happened, and was told by Derby that he had no insurance.
Derby and his secretary both testified that on August 5 they wrote and mailed to plaintiff a letter telling him that they had not yet been able to place his insurance. Plaintiff testified that he never received such a letter. The judge instructed the jury that if they believed Derby had mailed this letter to plaintiff Blankenship as lie and Ms secretary testified, “then the Conrt tells yon that notice of the fact he had no insurance as of tMs date will he imputed to BlankensMp. ’ ’ The jury found for plaintiff in the face of tMs instruction, therefore presumably disbelieved the defendant’s evidence. This was their privilege.
The defendant’s other evidence, which was lengthy, detailed Ms efforts to secure the insurance for plaintiff. That he made efforts to place insurance on plaintiff’s operations is undeniable; that he might reasonably have been more diligent is also undeniable. Whether he exercised the care and diligence that his undertaking with plaintiff called for was a question of fact which, we have concluded, was properly left to the jury. No cases ex-, actly like tMs have heretofore arisen in Arkansas, but in the case most nearly like it, Broyles v. International Harvester Co., 202 Ark. 267, 150 S. W. 2d 733, we held that the evidence required submission to the jury of the similar question there presented.
Appellant also complains of the Circuit Judge’s refusal to give numerous other instructions requested by him. We have examined all these proposed instructions carefully, and find that the matter in them was covered by other instructions given by the court, or that they were improper. It would n<?t be profitable for us to set each of them out for detailed discussion.
Finally, defendants urge that the burden imposed upon insurance brokers by the rule we here apply will be an intolerable one, that insurance men will be unbearably hampered by it in their business. Other states have not found tMs to be so. A clear agreement, preferably in writing, as to when insurance is to be effective, or as to what obligation is to be undertaken by the broker, should be no burden, but should rather be an aid to good business. There should be no vested right to engage in ambiguous undertakings. Insurance brokers may often find it advantageous to enter into the type of contract which we here enforce. If they wish a different type of contract they are free to make it.
No complaint is made as to the measure of damages employed in the trial below, but we point out that defendant will be entitled to deduct the amount plaintiff would have had to pay as a premium on the policy contracted for from whatever total defendant must pay to plaintiff as a consequence of this judgment. The deduction should • be the amount which the plaintiff would actually have paid as a premium on the policy applied for, covering his employees for a period of one year, had the policy been issued. Plaintiff is entitled to no more than the net amount in which he is harmed by defendant’s breach of contract.
The judgment of the Circuit Court is affirmed subject to this modification, and the case is remanded accordingly.
Chief Justice GbxfeiN Smith disqualified and not participating. | [
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Leelar, J.
Plaintiff Lopez recovered judgment in the Circuit Court on a policy of automobile collision insurance issued to Mm by defendant insurance company, and defendant appeals.
Plaintiff’s car was overturned and wrecked wMle lie was driving it. The loss fell clearly within the coverage of defendant’s policy, and defendant’s adjuster was sent promptly to check on the amount of the loss. Plaintiff met the adjuster at a garage to which the wrecked car had been towed. They looked over a 4-page list of repair items prepared by the garage operator, the proposed cost of which totaled $873.72, then plaintiff signed a “Loss or Damage Agreement” prepared by the adjuster, the gist of which was that he agreed that the sum of $873.72, minus $56 under the deductible clause and for tire betterment, should constitute the full amount of his claim. A short while after the adjuster departed plaintiff, according to his own testimony, talked with the garage operators and was told by them that even after his car received the repairs contemplated it would not be in as good condition as before the wreck, that anybody would be able to tell tliat it was a wrecked car, and that it would never again be as good a car as it bad been before tbe wreck. Plaintiff at once got in toncb with tbe adjuster, telling liim that be repudiated tbe settlement figure on tbe theory that under tbe policy tbe insurer was permitted to repair tbe automobile or its parts, ratber than pay tbe actual amount by wbicb tbe car was damaged in money, oidy if tbe result would be “of like kind and quality” as tbe vehicle before tbe wreck. This was without question in accordance with tbe actual provisions of tbe policy.
Tbe insurer refused to reconsider tbe amount to be paid under the policy. Plaintiff then brought this action claiming that tbe car was worth $1,850 before tbe wreck and $400 after the wreck so that, with $50 off under tbe deductible clause, he was entitled to $1,400 under tbe policy, plus interest, 12 per cent penalty and an attorneys’ fee. (Ark. Stats., § 66-514.) At tbe trial before a jury tbe insurer relied upon tbe ‘ ‘ Loss or Damage Agreement,” contending that plaintiff was bound by it, and also contended that actual damage to the wrecked car did not exceed tbe amount of tbe cost of proposed repairs as originally calculated. Tbe jury’s verdict was for tbe plaintiff in all respects, and judgment was rendered against defendant for tbe $1,400 claimed, together with tbe statutory 12 per cent penalty and a $350 attorneys’ fee.
Tbe first matter to be considered is appellant insurer’s contention that tbe “Loss or Damage Agreement” was a settlement contract binding upon tbe plaintiff. That “Agreement,” after setting forth tbe amount of damage settled upon, contained these words:
“Tbe sole purpose of this instrument is to fix and evidence tbe total amount for wbicb claim is made. This instrument is, and is intended to be binding as to tbe total amount of loss or damage said to have occurred under tbe policy. This instrument is not an acceptance of liability by Motors Insurance Corporation, hereinafter referred to as tbe Corporation, does not commit tbe Corporation to payment of said claim and does not in any sense waive any of the conditions or provisions of the policy of said Corporation. Furthermore, upon, in the event, and in consideration of the payment of the above amount by the Corporation, the undersigned hereby agrees to release and discharge the Corporation from any and all liability under its policy for said loss and/or damage, and the undersigned further agrees to hold the Corporation, its successors or assigns, free and harmless from further claim for the loss described.”
The terms of this “Agreement” of course show that it is not a contract, and is not by itself intended to be a contract. It is designed “to fix and evidence” the amount of the claim, and purports to bind the insured to the amount thus fixed and evidenced, but it does' not purport to bind the insurer at all. It expressly declares that the insurer is bound to nothing by it, is not committed to the making of any payment whatever. No consideration moving from the insurer, in return for the insured’s agreement to limit his claim to the amount set, is even recited. No promises are made by the insurer. The only consideration referred to, on the insurer’s side, is the payment to be made if and when and in the event that the insurer chooses or is compelled to pay on the policy. This one-sided undertaking is not a contract in any legal sense. It lacks the mutuality which is required by the most elementary principles of our law. Eustice v. Meytrott, 100 Ark. 510,140 S. W. 590; Restatement, Contracts, § 80; 1 Williston, Contracts, § 103, et seq.
Appellant insurer urges, however, that we have held otherwise, and cites Cash v. Home Life Ins. Co., 197 Ark. 670, 125 S. W. 2d 99, as holding that an identical loss and damage agreement was valid. It is true that the agreement in the Gash case was substantially identical with that here involved, and that it was held valid, but there is one significant difference in the facts. This difference is that in the Gash case the insurance company had already made the payment agreed upon. Once the payment was made by the insurer the one-sided conditional agreement of the insured was turned into an exe cuted contract. The payment was the consideration for the insured’s undertaking to limit his claim.
In the present case, in contrast, the payment was never made. The insured withdrew his unilateral agreement to' accept it in full satisfaction of his claim before payment could be tendered. Thereafter it was not even an offer for a contract; it was merely evidence for the jury to consider, along with the other evidence that was available, on the proper amount of the insured’s claim.
Much of appellant insurer’s argument on this appeal is based on the assumption that the “Loss or Damage Agreement ’ ’ was a contract binding on the insured, to be set aside only if insured established fraud or overreaching in its procurement. Since it was not a contract at all, questions as to sufficiency of evidence of fraud to justify setting it aside, and the propriety of instructions directed to that issue, need not be considered.
The other main issue in the trial below was presented on the proper theory that the “Loss or Damage Agreement” was not controlling. This issue was as to the amount of actual damage to the Lopez car — whether it was $873.72 as contended by the Company, or $1,450 as contended by the insured, or some other amount. There is in the record substantial evidence fixing the damage at the higher amount, and it cannot be seriously contended that this evidence is not adequate to support the jury’s verdict for the full amount claimed by plaintiff.
One other question remains to be discussed. This is whether the Circuit Judge improperly admitted hearsay evidence when he allowed plaintiff Lopez to testify that the garage operators told him, at once after he signed the “Loss or Damage Agreement” prepared by defendant’s adjuster, that after his car received the repairs contemplated it would not be in as good condition as before the wreck, that anybody would be able to tell it was a wrecked car, and that it would never again be as good a car as it had been before the wreck. If this evidence was received or considered by the jury for the purpose of establishing the truth of what was asserted in it, that is, for the purpose of proving the extent to which the car was damaged, it was inadmissible hearsay, and prejudicial error was committed in allowing it to go to the jury. If on the other hand the mere fact that the statements were made to and heard by Lopez was itself relevant to some issue in the case, and the jury was restricted to consideration of the statements on that issue solely, there would be no violation of the hearsay rule. See 2 Ark. L. Eev. 26. A statement made out of court is not hearsay if it is given in evidence for the purpose merely of proving that the statement was made, provided that purpose be otherwise relevant in the case at trial. 5 Wigmore, Evidence, % 1361; 6 Ibid., § 1770.
At once after plaintiff Lopez gave the testimony in question, and appellant’s attorney objected, the Circuit Judge told the jury:
“Now, gentlemen of the jury, that doesn’t go to the extent of the damage. That is the matter that must be proven by direct testimony of witnesses. This testimony goes to the attitude of the plaintiff in his dealings with the insurance company. In other words, it has been stated by the insurance company that they offered to settle with him for a certain sum. This testimony is admitted to you for his reason for not accepting that sum. Now, the extent of the damage to this car will still have to be proved by the plaintiff by witnesses who know what that damage is and not by hearsay. This testimony will not be considered by you as going to the actual damage to the ear, but goes to the reason for the plaintiff not accepting the eight hundred and whatever dollars it was offered in settlement of his claim for damages. ’ ’
After a further statement by counsel, the Judge repeated his extemporaneous instruction. He used one ambiguous sentence, “It goes to the matter of repair and not to the extent of the damage.” But he followed this sentence with the further explanation: “Now then, this testimony goes to the question of why the car was not repaired and not the extent of the damage. I don’t know whether I have made myself clear to yon or not, bnt the plaintiff must prove his damage and this testimony will not be considered by you as going to the amount of damage. ’ ’
A similar situation was presented in Sovereign Camp Woodmen of the World v. Cole, 192 Ark. 268, 90 S. W. 2d 769. There a double defense had been raised by the insurance company: (1) that plaintiff was not totally disabled, and (2) that proof of disability had not been furnished by the plaintiff to the insurer. Plaintiff offered in evidence the affidavits of three physicians, previously filed by them with the insurer, each of which was to the effect that the insured was totally and permanently disabled. The trial judge admitted the affidavits in evidence on the issue of whether proof of disability had been furnished to the insurer, but at the same time admonished the jury that they should not consider the physicians’ affidavits as proof of disability. In sustaining the trial judge’s action, Judge Frank Gr. Smith said, “They were admitted for the purpose of showing that proof of disability had been made. Restricted to this purpose, the testimony was competent.” If the jury had been allowed to consider the affidavits as evidence of the plaintiff’s condition of being totally disabled, the statements made out of court would have been used to prove the truth of the very matter asserted in them, and would have been inadmissible hearsay.
The same idea was expressed by Hart, J., in Mason v. Bowen, 122 Ark. 407, 413, 183 S. W. 973, 975, Ann. Cas. 1917D, 713: “It seems to be well settled, both by text-writers and the decisions of courts of the various states, that the statements and declarations of a testator, whether made before or after the execution of a will, are not competent as direct or substantive evidence of undue influence, but are admissible to show the mental condition of the testator at the time of making the will. When the condition of the testator’s mind is the point of contention, statements or declarations of the testator are received as external manifestations of his mental condition and not as evidence of the truth of the things he states. If offered to prove an external act, such as undue influence or fraud, such statements or declarations are merely hearsay and are liable to all the objections to which mere declarations of third parties are subject.” Accord: Kennedy v. Quinn, 166 Ark. 509, 266 S. W. 462.
If the jury had been allowed to consider, on the issue of the amount of damage to his car, the testimony of plaintiff Lopez as to what the garage operators told him about the worth of the proposed repairs, the hearsay rule would have been violated. But the Circuit Judge specifically and forcefully told the jury that they should not consider the evidence on that issue. Their consideration of this testimony was limited to the secondary issue of what happened at the time the “Loss or Damage Agreement” was signed and then repudiated. In view of the instructions given we hold that there was no reversible error.
The judgment of the Circuit Court is affirmed. | [
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Humphreys, J.
Appellant was indicted in the circuit court of Pulaski County for the crime of murder in the first deg'ree for killing- Fred Gembler on February 28, 1930, in said county, and, upon a trial of the cause, was convicted of the crime' of voluntary manslaughter and was adjudged to serve a term of three years in the State Penitentiary as a punishment therefor, from which judgment an appeal has been duly prosecuted to this court.
Appellant’s first assignment of error in the trial of the cause is that the prosecuting attorney was allowed, on cross-examination of his character witness, to interrogate concerning’ certain reprehensible acts of appellant. The cross-interrogatories, had they been answered in the affirmative, would have shown that appellant was violent, quarrelsome and overbearing, instead of peaceable and law-abiding, as testified to by the character witnesses. The effect of affirmative answers would have been to reflect on the credibility of the character witnesses, and they were admissible for that purpose under the rule of evidence announced in the case of Woodard v. State, 143 Ark. 404, 226 S. W. 124, and reiterated in the case of Bridges v. State, 176 Ark. 760, 4 S. W. (2d) 12. In the instant case, however, the cross-interrogatories were answered in the negative, and, had the questions been improper, the negative answers would necessarily have eliminated any prejudice to appellant. There is nothing in the record to show that the cross questions were propounded by the prosecuting attorney to cast reflections by innuendo upon appellant. So far as the record shows,.the questions were asked by him in perfect good faith.
Appellant’s next assignment of error is that the prosecuting attorney was allowed to introduce as an exhibit to the .jury a picture of the deceased taken immediately after his death, and before his removal from the scene'of the tragedy. It is argued that, because this picture showed the awful gun shot wound in all its gruesomeness inflicted upon the deceased by appellant, it tended to arouse the passions of the jury, and thereby prevent a fair and impartial trial. The picture was nothing more than a description of the fatal wounds received by deceased at the hands of appellant. 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 month. No authority is cited by appellant in support of his contention that the character of the wound may not be shown by a genuine photog-raph. 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.
Appellant’s next assignment of error is that the prosecuting attorney was permitted, over his objection, to ask certain witnesses of appellant whether they talked to appellant’s lawyer and how often they had done so. These questions were propounded to witnesses, Sammons and Simons, and appellant argues that the purpose of asking them was to impress upon the jury that some “deep laid plot” was in process of creation, without evidence to support it. There is nothing in the record reflecting such a purpose, and we think a more reasonable inference would be that the questions were asked to ascertain whether witnesses were interested in the acquittal of appellant. A witness’ testimony is frequently weighed in the light of his interest in a case and properly so. This would be one way of ascertaining whether a witness is disinterested or whether specially interested. We do not think any prejudice resulted to appellant on account of the questions propounded to these witnesses.
Appellant’s last assignment of error is that the court erred in refusing to give his requested instructions num-. bered 4, 5 and 6.
Requested instruction No. 4 related to the law of self-defense which was fully covered by the instructions given by the court.
Requested instruction No. 5 related to the manner of weighing the testimony of appellant himself. It was not error to refuse to give the instruction. The better practice is “to allow him to .take his place along with all other witnesses under the general charge relative to the credibility and weight to be attached to their testimony. ’ ’ Smith v. State, 172 Ark. 156, 287 S. W. 1026.
Requested instruction number 6 related to the difference in the size and strength of the deceased and appellant, as tending to show that there was reasonable cause for fear or injury on appellant’s part. Although evidence relative to the difference in their size and strength was properly admitted, the rule is that, although the jury may consider these facts for such purpose, it is not proper for the court to instruct that they must consider such disparity. "Wharton on Homicide, 3d ed. p. 449.
No error appearing, the judgment is affirmed. | [
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Griffin Smith, Chief Justice.
This is the second appeal from a death sentence for rape. We formerly reversed because insufficient time was given the accused to prepare his defense, but held that the evidence was sufficient to sustain the judgment. Maxwell v. Slate, 216 Ark. 393, 225 S. W. 2d 687.
On retrial the defendant moved for a change of venue, alleging local prejudice. Witnesses in support of the motion -were not informed respecting all sections of the county, nor did they testify unequivocally that public hostility was such that a fair trial could not be procured; hence the Court properly denied the request.
It was conceded that for more than a quarter of a century no Negroes had been summoned for trial jury service, hence the exclusion had been systematic for racial reasons, and in derogation of the Fourteenth Amendment to the Federal Constitution.
When the jury panel was interrogated by the Judge at a time preceding the term at which Maxwell was tried, it was ascertained that some were disqualified, and the Court discharged all but thirteen. Direction had been given that a special list of not less than fifty be summoned, and a day before the trial began this list, containing 69 names, but including the thirteen brought forward from the old panel, was opened and by consent of counsel for the defendant and the Prosecuting Attorney it was given to the Sheriff, who promptly executed summonses. However, the defendant at all times protested that under the conceded facts that no Negro had been called to serve on a Hempstead County jury for more than twenty years it had been shown that discrimination on account of race had been habitually practiced, hence the old panel rem nant of thirteen should be discharged. Had this been done the jury would have been selected from the new names, with eight Negroes on the list.
The State contends, and not without attention-compelling force, that commingling of the original thirteen jurors with the panel containing Negroes gave to the defendant in principle the identical opportunity he was contending for: that is, the right to select twelve names from a list partially composed of members of his race. The answer is that we are dealing primarily with the Constitution as distinguished from a particular defendant. Perhaps in the instant case Maxwell’s counsel could have shown sufficient individual disqualifications to procure the services of one or more of the Negroes on the trial jury. It is also possible that the result would have been the same — conviction and the death sentence. But there is no doubt that the local system of jury selection resulted in systematic exclusion of Negroes in violation of the Fourteenth Amendment, and that for the first time in many years colored electors were summoned when the special list was given the Sheriff. Bone v. State, 198 Ark 519, 129 S. W. 2d 240. See Washington v. State, 213 Ark. 218, 210 S. W. 2d 307, for a discussion of disproportionate numbers in dealing with white and Negro persons called for jury service.
Our own cases, and decisions by the Supreme Court of the United States, are too clear for misunderstanding.
Appellant’s counsel urge that because of a diversity of views expressed by members of the Supreme Court of the United States, we should hold that a prosecution by information is unconstitutional. See the dissenting opinions of Mr. Justice Black and Mr. Justice Murphy in Adamson v. California, 332 U. S. 46, 67 S. Ct. 1672, 91 L. Ed. 1903, 171 A. L. R. 1223, where it is suggested that the Bill of Bights should be extended by judicial construction to bind the States. This would include the Fifth Amendment, excusing an accused from trial on charges involving a capital or otherwise infamous crime unless on presentment or indictment by a Grand Jury. Maxwell was proceeded against by information — a process heretofore held sufficient by the U. S. Supreme Court. Our holdings have been consonant with these views, and must be adhered to.
Appellant further contends that he was discriminated against within the meaning of the Fourteenth Amendment because there were no Negroes on the Jury Commission. We know of no rule making this requirement and the suggestion must be rejected.
As in the former appeal, proof was srifficient to sustain the verdict. The defendant did not testify, nor did his counsel cross-examine any of the State’s witnesses; neither were the jurors questioned in any manner by the defendant, or challenged except as heretofore stated. Ordinarily the principle emphasized by Chief Justice Hart in Rose v. State, 178 Ark. 980, 13 S. W. 2d 25, would apply; but here the vice goes deeper and involves a fundamental right the defendant was denied. He was entitled to favorable action on the motion to quash the old panel, hence a new trial will be necessary. Reversed, with directions to proceed in a manner not inconsistent with this opinion.
McFaddiN, J., not participating. | [
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Leflar, J.
Appellant James A. Gipson, as a citizen and taxpayer, brought this bill in equity for an injunction to restrain the Commissioner of Revenues and the State Treasurer from enforcing or paying out funds for the enforcement of the provisions of Act 282 of the Acts of the General Assembly of Arkansas- for 1949. Act 282 contains three principal groups of provisions: (1) It .fixes prices at which sales of liquor and related items (not including beer) may be made at wholesale or retail— for wholesale sales the price is fixed at the wholesaler’s cost plus 15 percent, and for retail sales at the retailer’s cost plus 33 1/3 percent on liquor, plus 45 percent on cordials, liqueurs and specialties, and plus 50 percent on sparkling and still wines (the various items enumerated are defined in the statute); (2) a tax of 25 cents per casé on liquor and other stated items and 10 cents per case on wine is levied, the proceeds to go into a special fund in the State Treasury; and (3) there is appropriated from the special fund certain amounts to pay the salaries and expenses of 20 employees in the office of the Commissioner of Revenues whose duty it is to enforce this and all other liquor control laws of the State. Plaintiff Gip-son’s contention is that Act 282 is unconstitutional under Article II, §§ 3, 18, 19 and 21 of the Constitution of Arkansas. The contention of unconstitutionality is seriously urged however, only as to the group of provisions numbered (1) in the summary just given — those relating to price-fixing. It is virtually conceded that the taxing provisions, and the appropriation for additional employees to police the liquor business in the State, are valid. The Chancellor held the Act to be constitutional, and plaintiff appeals.
The sections of the Constitution upon which appellant relies are as follows:
Ҥ 3. The equality of all persons before the law is recognized, and shall ever remain inviolate; nor shall any citizen ever be deprived of any right, privilege or immunity, nor exempted from any burden or duty, on account of race, color or previous condition.
“ § 18. The General Assembly shall not grant to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all citizens.
Ҥ 19. Perpetuities and monopolies are contrary to-the genius of a republic, and shall not be allowed; nor shall any hereditary emoluments, privileges or honors ever be granted or conferred in this State.
“§ 23. No person shall be taken or imprisoned, or disseized of his estate, freehold, liberties or privileges; or outlawed, or in any manner destroyed or deprived of his life, liberty or property, except by the judgment of his peers or the law of the land; nor shall any person, under any circumstances, be exiled from the State. ’ ’
It is apparent that none of these sections contains a specific prohibition against the type of legislation here enacted. If there is a prohibition it will have to be discovered from the general spirit of the sections, or from some inner essence deemed implicit though not explicit in the words. Furthermore, discovery of such a prohibition would negative the State’s regulatory authority under the police power, a constitutional concept which in the past has been held to justify numerous governmental controls exercised over the liquor business.
A practically unlimited right to regulate the liquor traffic has from early times been conceded to the State. “The State has this right, because the authority to sell liquor is a mere privilege, which the State may grant or withhold, as it pleases, or, if it grants this permission at all, it may do so under any conditions which it cares to impose; and this is true . . . even though these conditions are so onerous as to amount to virtual prohibition of that traffic.” Wade v. Horner, 115 Ark. 250, 258, 170 S. W. 1005, 1008, Ann. Cas. 1916E, 167. “The sale of intoxicating liquors is not a matter of right protected by constitutional guarantees. It is only a privilege, to be exercised under the police power. The General Assembly, in legalizing the traffic, may impose such restrictions as it deems appropriate.” Cook, Commr. v. Glaser’s Wholesale Drug Co., 209 Ark. 189, 195, 189 S. W. 2d 897, 900. Accord, Ziffrin, Inc. v. Reeves, 308 U. S. 132, 60 S. Ct. 163, 84 L. Ed. 128.
The only case in which this Court has previously had occasion to pass on the validity of a price-fixing statute is Noble v. Davis, 204 Ark. 156, 161 S. W. 2d 189, holding unconstitutional an enactment which authorized minimum price schedules for barbers. The decision was that the business of the barber ‘‘ is one of common right, ’ ’ and that prices charged for barber services have no such effect upon the public peace, health, safety and welfare as to justify a statute fixing minimum prices in a field of business which is on.e of common right. Noble v. Davis affords us but little aid in passing upon the validity of a statute designed to regulate a type of business which is admittedly not one of common right.
There are several cases from other jurisdictions in which liquor price-fixing plans have been denied enforcement, but they likewise do not give us much aid. They come from the states of Illinois, New York, Louisiana, and Florida.
The case of Illinois Liquor Control Commission v. Chicago’s Last Liquor Store, 403 Ill. 578, 88 N. E. 2d 15, held the Illinois liquor price control act to be invalid because it violated an Illinois constitutional prohibition against revival or amendment of an earlier act by reference merely. That is a legislative drafting technicality which the Arkansas act completely avoids.
Levine v. O’Connell, 275 App. Div. 217, 88 N. Y. Supp. (2d) 672, invalidated the New York statute on the ground tliat it improperly delegated the price-fixing power to a state board. The New York Court said: “We assume, without deciding, that it would be within the competence of the legislature to determine that mandatory price fixing in the sale of alcoholic beverages would be a proper exercise of the police power. The important point for this case is that the legislature has not done so; on the contrary (it) purports to authorize the State Liquor Authority ‘in its discretion’ ” to establish a price fixing plan. Under the Arkansas act there is no such improper delegation of legislative power to an administrative board; the enactment itself lays down the price fixing-rule.
The Louisiana holding appears in Schwegmann Bros. v. Louisiana Board of Alcoholic Beverage Control, 216 La. 148, 43 So. 2d 248. The statute there was similar to that enacted in Arkansas, and its stated purpose was the regulation and control of the liquor traffic so that it “may not cause injury to the economic, social and moral well-being of the people of the state.” The Louisiana Court held that the fixing of wholesale and retail package liquor prices was insufficient by itself to achieve the end sought, that there were too many liquor sales transactions in which prices were left unregulated, that the act was not comprehensive enough to accomplish what it purported to accomplish. Particular emphasis was laid on the fact that there was no regulation of prices on sales of liquor over the bar by the drink, a type of sale which we do not allow in Arkansas, and therefore have no occasion to regulate. No objection is made that the Arkansas statute is not sufficiently comprehensive; no argument is made that it does not regulate enough, rather it is urged that it regulates too much. The Louisiana Court concluded: “It is to be clearly understood that we are not holding that the legislature cannot under any circumstances adopt legislation, pursuant to the state’s police power, relating to the establishing of prices on intoxicants with the view and purpose of regulating the liquor traffic and protecting the general welfare of the people. That broad question is not presented by this «aso . . Contrariwise, that broad question is specifically the one that now is before tlie Arkansas Court.
The other state in which a liquor price-fixing plan has been invalidated is Florida, where in Liquor Store v. Continental Distilling Corp., (Fla.) 40 So. 2d 371, the Florida Court refused to enforce an act which authorized manufacturers to fix binding retail prices on “brand name” goods sold for resale in the state. The Court pointed out: “It is well to remember also that this act applies to every kind of article including such necessities as food and drugs. ’ ’ Then it was stated: “. . . a law which provides for the fixing of minimum prices should contain a yardstick as a guide for the establishment of such ground level prices. The power to determine those prices should not be left to the unleashed discretion of the trade-name owner but should be confined within impregnable specified boundaries. A definite measuring stick should be set forth in the body of the'act. This statute contains no such rule.” The Arkansas statute does contain such a rule, a very specific one, and besides it sets up a price fixing structure only for the liquor business, as distinguished from all retail businesses.
In contrast with these cases is Reeves v. Simon, 289 Ky. 793, 160 S. W. 2d 149, which sustained Kentucky’s Distilled Spirits and Wine Fair Trade Act, a price fixing measure similar to Arkansas’ Act 282 of 1949. The decision was squarely on the constitutionality of the enactment. In the course of its opinion the Kentucky Court said:
“The proof shows that due to price-cutting and to cut-throat competition by producers,' wholesalers and retailers, chaos existed in the trade which resulted in law violations, excessive use of intoxicants and other conditions detrimental to the commonweal. The evidence is to the effect that the fixing of minimum prices has had a stabilizing effect upon the industry, done away with, ruinous competition, resulted in less consumption of intoxicants by the public and has caused liquor to be sold in more wholesome surroundings . . .
“ (It was urged that) the mark-up in the resale price was for the sole benefit of the dealer and that the. Act ran afoul of section 3 of our Constitution which forbids the granting of exclusive emoluments or privileges except for public service. The natural status that anybody might sell whiskey has long since ceased to exist and its sale under police power for years has been limited to select persons and only at selected places . . .
“The answer to the argument that this statute is more inclined to enrich the dealer than it is to regulate the sale of whiskey for the public benefit, is that courts are not concerned with the wisdom or appropriateness of legislation, but the public benefit to be derived therefrom and the adequacy thereof is primarily for the Legislature. Unless it is clear the statute has no reasonable relation to a proper legislative purpose and is arbitrary and discriminatory and without substantial basis, the courts will.-not interfere.
“Innumerable methods have been devised by the legislatures of the several states, and some by the national congress, in an attempt to properly regulate the liquor traffic — none of which have met with great success — and we cannot say that the instant law calling for strict price control and the elimination of ruinous competition has no relation to the subject or that it is arbitrary and discriminatory and not based upon substantial grounds.”
Many other states have enforced price-fixing laws of one kind or another, but most of these are irrelevant here, nor do we now approve them either by inference or otherwise. It is established that such enactments do not. violate the due process, equal protection, privileges and immunities, or other possibly relevant clauses in the Federal Constitution. Nebbia v. New York, 291 U. S. 502, 54 S. Ct. 505, 79 L. Ed. 940, 89 A. L. R 1469; Olsen v. Nebraska, 313 U. S. 236, 61 S. Ct. 862, 85 L. Ed. 1305, 133 A. L. R. 1500, therefore it is clear that the Arkansas liquor price control act is not violative of the Federal Constitution. Decisions enforcing price controls over liquor and beer sales in still other states do not deal with the constitutional questions which we have before us here—see Grant Lunch Corp. v. Driscoll, 129 N. J. L. 408, 29 Atl. 2d 888; Fowler v. Harris, 174 Md. 398, 200 Atl. 825—though they do, of course, imply an absence of the constitutional doubts which invoked the present litigation.
The principal argument in Arkansas, as in Kentucky, against the constitutionality of the liquor price control act is that it confers a “special privilege” of profit making upon liquor dealers, a privilege not conferred upon the rest of the population. This is of course true in one sense only — the statute does assure a gross profit, per item sold, but it does not assure a net profit in the operation of any particular store. That however is beside the point; there can be no doubt that the statute substantially increases the likelihood of net profit to the dealer.
The fact remains that from the earliest days of liquor regulation our laws, now admittedly valid, have granted a special privilege to liquor dealers much more farreaching, more monopolistic, than anything contained in Act 282. This is the license to engage in the liquor business to the exclusion of unlicensed sellers. This is a “special privilege” of which bootleggers have traditionally complained, and one which gives to liquor dealers a substantial assurance of the profit that is not given to' other law-abiding citizens. Yet the courts of Arkansas, like those of all American states, have sustained these monopolistic grants of special privilege on the ground that it is within the competency of the legislature to determine under the police power what regulatory rules are needful in controlling a type of business fraught with perils to public peace, health and safety as is the liquor business.
The recital of legislative policy in section 1 of Act 282 asserts the purpose “of avoiding price wars which would materially affect the revenues of the State, attempts at monopolies, and the demoralization of the legally controlled sale of liquors in this State which grows out of unfair price manipulation.” The effect upon State revenues is one of the least of the harms which would flow from an unregulated liquor traffic. Unlawful sales to minors and drunkards, the offering of free samples, the effort to increase sales by cut-rate prices and other competitive practices freely allowed and commonly encouraged in other and more harmless fields of commerce, are among the evils against which our legislation seeks to guard.
For a century or more we have sought to deal with such dangers by the grant of special privileges to liquor sellers as a class, on the assumption that the limited number of grantees of the special privilege could be more easily regulated than could unlicensed sellers generally. In the course of the century our legislatures have devised many regulations for the liquor trade. Some of them have been abandoned, others are retained today. Some of our regulations have been opposed by a majority of liquor dealers because the rules were onerous and burdensome, other regulations have pleased the dealers because they served to do away with costly competitive practices, to eliminate untaxed bootleg sales, to forbid business methods which aroused public antagonism, or to impose other limitations or procedures which proved financially profitable to law-abiding dealers. The validity of these legislative regulations is not to be tested by whether they produce more or less profit to the liquor dealers, or by whether the regulations are pleasing or displeasing to the regulated dealers. Rather, the legislative judgment is the test.
There is much room for difference of opinion as to whether the fixing of minimum prices is a sound or wise method for achieving the legitimate police power ends of liquor traffic regulation. The writer of this opinion and a majority of his colleagues on this Court feel personally that such minimum price fixing is unsound and unwise, but our views on that point are irrelevant here. Others believe that price regulation does tend to remove some of the dangers that inhere in the liquor traffic, and that it gives to the state a firmer control than could otherwise be maintained over the traffic and its incidental evils. That is an understandable point of view, and one that apparently appealed to the intelligent judgment of members of the legislature. The legislature was seeking a remedy for ills that it is authorized to remedy, or seek to remedy, and its choice of remedy was not one that is prohibited to it by our Constitution.
The decree of the Chancery Court is affirmed.
The Chief Justice and McFaddin, J., dissent in part. Dunaway, J., not participating.
The concept of common right, or of “natural and fundamental rights,” is analyzed in a Comment in (1948) 2 Ark. L. Rev. 203. | [
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Leelar, J.
Mrs. Charley Miller died childless, without a will, owning 50 acres of land which had been devised to her by her father’s will. She left surviving her a husband, appellee Charley Miller, and blood relatives among whom are the appellants here. Charley Miller is in possession of the 50 acres. Appellants brought suit for a partition of the land. At the trial the Chancellor held that Charley Miller ‘ ‘ is vested with a right of possession of the entire tract for his natural life by virtue of his homestead interest.” Appellants contend this was error.
The land in question, having come to Mrs. Miller by devise from her father, was ancestral estate. Oliver v. Vance, 34 Ark. 564; Hofstatter v. Bona, 205 Ark. 729, 170 S. W. 2d 1016. The relevant law as to a husband’s interest in his wife’s ancestral lands appears in Ark. Stats., § 61-228: “Upon-the death of a married woman, her husband shall be entitled to the following portion of her estate, undisposed of by her will: . . . where she leaves no descendants, as to the lands in which her estate is ancestral the husband shall be entitled to one-third of her real property for life. . . .” Our law gives the husband no additional right of homestead in his wife’s lands. See Ark. Const., Art. IX, §§ 6, 10; Ark. Stats., § 62-601, et seq. His right in her ancestral lands is a one-third interest for his life.
Reversed and remanded. | [
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Frank Holt, Justice.
The jury convicted appellant of pandering [Ark. Stat. Ann. § 41-3208 (Repl. 1964)] and assessed her punishment at four years in the State Department of Corrections. Appellant first contends for reversal of the judgment that the evidence is insufficient to support the verdict.
The state’s principal witness testified that she was a prostitute and had previously worked for the appellant. This witness stated that she called the appellant who told her that “everybody had been asking about me. . .” and “she asked me if I wanted to come back to work and I told her yes.” The appellant told her she could make good money if she would work again. She then worked for the appellant as a prostitute at appellant’s house and houseboat moored at the Arkansas Yacht Club. The appellant set the terms at a 60/40 fee splitting arrangement and also determined the price to be charged to the customers. In addition to providing the premises, the appellant furnished certain items, transportation back and forth from her house to her houseboat, and told the witness when to call the next day. Two other witnesses, who admitted they were prostitutes before working for appellant, testified that they also had worked for the appellant during the same year at her house and houseboat.
This evidence is amply substantial to support the jury’s findings that the appellant procured, enticed and encouraged a female to remain a prostitute in violation of § 41-3208. By the comprehensive provisions of this statute, it is immaterial whether the female is virtuous or whether she consented to become or remain a prostitute. Boyle v. State, 110 Ark. 318, 161 S.W. 1049 (1913).
Other contentions for reversal were considered and determined adversely today in Morgan v. State, 255 Ark. 181, 500 S.W. 2d 83.
Affirmed.
Byrd, j., not participating. | [
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Humphreys, J.
This suit was brought on September 25, 1930, 'by appellants against appellees in the Second Division of the Chancery Court of Ouachita County to- obtain a transfer to the common school fund from the general county revenue fund of that portion of the treasurer’s commissions in excess of the constitutional limit of $5,000, allowed him as salary, derived from the collection of the county common school funds and credited to the county general revenue fund during the years 1924, 1925, 1926, 1927 and 1928, aggregating $14,350.83; and for interest collected from county depository banks and credited -to the county general revenue fund for the years 1924 to July 1, 1927, inclusive, amounting- to $345.55; and for a transfer to the county common school fund from the several county funds that portion of interest allocated to them which was collected from the county depository hanks during the last half of the year 1927 and all the year 1928, aggregating $8,472.62.
The complaint alleged that the excess commissions aggregating $14,350.83 collected by the county treasurer on the county common school funds were improperly credited to the account of the county general revenue fund contrary to law and to § 11, article 16, of the Constitution of the ¡State of Arkansas which provides that no moneys arising from a tax levied for one purpose shall be used for any other purpose. It also alleged that pursuant to act No. 304 of the Acts of 1913,- interest paid by county depositories should be placed to the credit of the respective funds from which said interest was derived, and that interest in the amount of $345.55 was collected on school funds deposited in county depository banks during the years 1924 to July 1, 1927, inclusive, and improperly credited to the county general revenue fund. It also alleged that pursuant to act No. 163 of the Acts of 1927, interest paid by county depositories should be placed to the credit of the county common school fund, whereas, during the last half of 1927 and all of 1928 interest aggregating $8,472.62 was paid by the county depository banks and improperly credited to the several county funds aforesaid.
Appellees filed an answer and demurrer to the complaint, both of which challenged the right of appellants to have the funds transferred to the county common school fund from the respective county funds to the credit of which they had been deposited, and in addition pleaded the three years’ statute of limitations in bar of appellants ’ claim for excess commissions and interest for the years 1924, 1925, 1926 and 1927 and for interest during the last half of 1927 and all of 1928.
The suit was submitted to the trial court upon the pleadings and a stipulation of facts, which resulted ini denying appellants’ claim for interest and that portion of its claim for excess commissions of the treasurer accruing more than three years before the institution of the suit, and ordering the county .judge and the county clerk to transfer from the county general revenue fund of said county the sum of $6,191.79, excess commissions for the years 1927 and 1928 and interest thereon, amounting to the total sum of $6,568.94, to the several school districts for Ouachita County, same to be apportioned under the orders and directions of the county board of education as required by law.
Both appellants and appellees have appealed from the decree in so far as same is adverse to each.
The agreement of facts is as follows:
“It is agreed by and between all of the parties herein for the purpose of the trial of the-issues in this suit:
“First: That the figures set out in the complaint and the amendment thereto correctly show the amount of money collected by the treasurer of Ouachita County, Arkansas, for and during the years set out in the complaint, and the amounts of money turned back to the county as excess commissions and the amount of interest collected by the said treasurers of Ouachita County, Arkansas, and which has accrued on the said funds.
‘ ‘Second: That the excess commissions turned back to Ouachita County, Arkansas, for each of the years named in the complaint, were by the several treasurers placed to- the credit of the county general fund, together with the interest which accrued thereon as alleged in the complaint.
“Third: That during all of the times named in the complaint, and at the present time, there has been and now is in the county general fund money in excess of the amounts now claimed by the plaintiff to have been and to be now wrongfully diverted to said fund.
“Fourth: That the records of the county court of Ouachita County, Arkansas, show that the treasurers of Ouachita County, Arkansas, immediately after the close of each of the years during which the excess commissions were collected filed their settlements with the county court showing the total commissions collected, the amount of their expenses and the excess commissions turned hack to the county, and said settlements were approved by the county court at the beginning of each succeeding year following the year in which the excess commissions were collected.
“Fifth: That, since the passage of the general county depository law, act No. 163, for the year 1927, which went into effect March 18, 1927, all of the interest derived from county funds paid by the depository has been credited to the several funds from which said interest was derived, and that the amount of interest which accrued to the several funds of Ouachita County are correctly shown in the. itemized statement attached to the complaint. The sum of $2,867.12 interest as shown in said itemized statement, includes interest on the school funds claimed to have been wrongfully diverted to said county general fund as well as interest on other money in the county general fund not claimed to have been wrongfully diverted.
“Sixth: That the sum of $4,000 interest on severance tax fund shown in said statement, together with all of said severance tax fund, was transferred by the present county judge after he went into office in January, 1929, to the county highway fund. That said severance tax fund represents the proportion of the severance tax received by Ouachita 'County, Arkansas, from the State of Arkansas, for use on county roads. It was the practice of the county treasurers during the years complained of, upon receipt of remittance of severance tax from the State of Arkansas, to divide the funds equally for' school purposes and for road purposes. The proportion of the fund going for school purposes was at once apportioned among the several school districts and credited to each school district fund. The portion going for road purposes was placed in the severance tax fund which was on deposit with the county depository. After the present county judge, Watt Jordan, went into office, the severance tax fund was transferred to the county highway fund, and there has been in the county highway fund since that time, up to and including the date of the temporary injunction made in this suit, in excess of $5,000; since the present county judge has been in office, the severance tax fund has been discontinued.
“Seventh: The rate of interest paid by the county depository on county funds during the years complained of up to January 1,1929, was 3% per cent, and since said date, the county depositories have paid 3 per cent.
“Eighth: In agreeing to the above stipulation of facts, it is understood that the defendants do not agree that plaintiffs are legally entitled to the relief prayed for in the complaint or any part thereof. Defendants do not waive any of the legal rights to which they or the county of Ouachita are entitled.
“Ninth: At the time of the filing of this suit, there was on hand in the county general fund of Ouachita County, Arkansas, approximately $100,000 and the outstanding warrants against said fund at that time amounted to approximately $2,000.”
The first question of law arising out' of the pleadings and agreed statement of facts is whether that portion of the treasurer’s commission in excess of the salary allowed him by law, derived 'from the collections of the county common school funds during the years 1924, 1926, 1926, 1927 and 1928 was improperly credited to the county general revenue fund. This identical question was determined by this court in the case of County Board of Education v. Austin, 169 Ark. 436, 276 S. W. 2. In that case it was ruled unconstitutional and improper to augment the county general revenue fund with that portion of excess fees over the salaries of the treasurer and collector derived from the collections of the county common school fund. To cover such excess into the county general revenue fund is ‘inhibited by § 11, ar tide 16, and also § 3, artide 14, of the Constitution as amended by amendment No. 9 thereto; and when covered into the wrong fund the chancery court may order a transfer thereof to the proper fund. It is argued by appellees that the rule announced in the Austin case, supra, to the effect that the excess fees over the salaries of the treasurer and collector derived from the collection of the county common school fund should be allocated to said county common school fund, conflicts with § 23, article 19, of the Constitution and § 4639 of C. & M. Digest. The argument is without merit because neither the section of the Constitution nor the section of the Digest referred to provides that the excess shall be credited to the county general revenue fund. They only provide that the excess shall be paid into the 'State, county, city or town treasury. The purpose of the Constitution and enabling act referred to was not to divert the excess or turnback, but to provide a place for payment in order fhat same might then be properly apportioned and allocated.
The next question of law arising out of the pleadings and agreed statement of facts is whether § 3 of act No. 163 of the Acts of 1927 is void as an attempt to divert taxes levied for one purpose to another purpose contrary to § 11, article 16, of the Constitution of Arkansas. Section 3 of the act referred to is in part as follows: “Said interest shall be computed upon daily balances and placed to the credit of said county, with said depository, and the same shall be payable to the county treasurer monthly, and shall be immediately placed by said treasurer to the credit of the common school fund of the county and be distributed pro rata to each school district, according to the scholastic population. * * *”
This section deals with interest derived from the funds theretofore levied and collected and not with the tax itself which was levied and collected. The interest derived, from the fund was not levied and collected as a tax. The inhibition of the Constitution referred to is against the use of the tax for any other purpose than that for which it was levied and collected. The principle announced in the case of Easterling v. Cook, 176 Ark. 574, 299 S. W. 1009, and reiterated in the later case of Collins v. Humphrey, 181 Ark. 609, 27 S. W. (2d) 102, governs the instant case.
The next and last question of law arising out of the pleadings and agreed statement of facts is whether any part of appellants ’ cause of action is barred by the statute of limitations. It is conceded in the brief of appellants that the funds sought to be transferred to the county common school fund from the several county funds into which they were diverted, are not trust funds by virtue of an express trust. The general rule of law is that, while the statute of limitations will not run against an express trust until there has been a repudiation of the trust, the statute of limitations will run against implied, resulting and constructive trusts. There are some exceptions to the rule that the statute of limitations will run against implied, resulting and constructive trusts, but we think the instant case comes within the general rule and not within any exception thereto. The three years’ statute of limitations provided for in § 6950 of Crawford & Moses’ Dig-est is applicable to the claims of appellants for excess commissions and interest. It was not alleged in the complaint nor in the stipulated agreement of facts that funds claimed were wilfully diverted by the officer apportioning them, hence § 6960 of Crawford & Moses’ Digest, providing for a five-year statute of limitations, has no application to the instant case.
Under the rules of law announced herein the trial court erred in denying appellants’ claim for interest accruing on funds loaned to the depository bank during the last half of 1927 and all of 1928, aggregating $8,472.62. This part of the decree will be reversed, and the cause remanded with directions to render a decree, in addition to that already rendered, in favor of appellants for interest in the sum of $8,472.62. In all other particulars the decree of the trial court is affirmed. | [
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Smith, J.
Appellee, Ed Britton, recovered judgment against tbe appellant railway company to compensate a personal injury, and as tending to support tbe right to recover tbe following testimony was offered. Appellee’s and other colored families were emigrating- from Kewanee, Missouri, to ‘Wilbeth, Arkansas, and they chartered from the appellant railway company two box cars in which to move their personal effects, consisting of household goods, farming implements, and some mules and chickens.
The waybill issued by the railway company recited that ail owner would accompany each car, and appellee assumed charge of one car, and Ed Bishop assumed charge of the other. A local freight ’train picked up the cars at Kewanee, and carried them to Hayti, Missouri, where they arrived about dark, and where they remained until about 2 p. m. of the following day, when they were picked up by a through freight train and carried to Harvard, Arkansas, where they were transferred to another train and later carried to their destination.
Appellee and Bishop remained in the cars while they were standing at Hayti to protect their contents and to attend to the stock and chickens. In watering the chickens, the coops containing them had been disarranged, and appellee was engaged in rearranging them, in anticipation of the resumption of the journey, when the through freight train came along. Appellee testified that, while he was so engaged and without knowing that the train had arrived, the engine of that train bumped into his car, with such unexpected force and violence that he turned a somersault, the chicken coops were thrown down and one of them was broken open and the chickens escaped therefrom and flew away. A brakeman admitted that he saw two chickens fly out of the car. Some of the household goods were damaged, and some dishes broken.
This testimony is sufficient to support the finding that there had been a collision which would not have occurred but for the negligent operation of the portion of the train to which the engine was attached, and was not such a jar as might reasonably be expected in the ordinary operation of a freight train. The testimony was therefore sufficient to support a finding of negligence, both under the law of this State, where the trial was had, or under the law of Missouri, where the injury occurred. St. Louis-San Francisco Ry. Co. v. Coy, 113 Ark. 265, 168 S. W. 1106.
For the reversal of the judgment it is insisted that the plaintiff had no right to be where he was without notifying the trainmen of his position. This assignment of error may be disposed of by saying that the -waybill gave this notice. Appellee had the right to be in this car, and the train crew should have anticipated that he was exercising that right.
It is insisted that there was a caboose to the freight train, in which appellee had the right to ride, and where, if he had been, he would have been safe and would not have been injured. There are two obvious answers to this insistence. The first has been stated, and that is that he had the right to be in his car. The train crew testified that they did not know appellee was in the car and called out at the door of the car to see if there was an occupant in it, but received no response. This was denied by both appellee and Bishop, and this issue of fact was submitted to the jury and is concluded by the verdict. The second answer is that appellee’s car and the other car had been standing on the sidetrack for nearly a day, and there was no caboose which they could have occupied until the arrival of the train, and the first knowledge appellee had of its arrival was when he was turned a somersault.
Error is assigned in the modification of an instruction numbered 2, requested by appellee, which', as asked, read as follows: “The court instructs you (that it is not practical to operate a freight train without occasional jars and jerks which may throw off his balance one standing in a freight car, and you are further instructed) that in the operation of its freight trains the defendant is required to exercise only the highest deg'ree of care that is usually and practically exercised and consistent with the operation of trains of that nature.” The court modified the instruction by striking out the portion thereof included in the parentheses.
There- was no error in this modification. The instruction, as requested, contained a charge upon the facts. It contained, as a declaration of law, a recital which was a question of fact. It was, of course, competent for the railway to show that it was not practical to operate a freight train without occasional jars and jerks, and testimony to this effect was admitted without objection. But the instruction required that the railway “exercise only the highest degree of care that is usually and practically exercised and consistent with the operation of trains of that nature” and therefore submitted to the jury the truthfulness of the testimony of the railway company whether the jar in question was one to be anticipated in the practical operation of a freight train. Beasley v. Hines, 143 Ark. 54, 219 S. W. 757, 15 A. L. R. 864 ; Meeks v. Graysonia, N. & A. R. Co., 168 Ark. 966, 272 S. W. 360.
It is the theory of the railway company that appellee was not injured by a collision at Hayti, but that he received such injury as he, in fact, sustained at Harvard, after the train reached that place, by. falling out of a door of the car. But this issue of fact was submitted to the jury, and the testimony amply sustains the finding that appellee received his injury at Hayti, and did not fall out of the car at Harvard.
It is further earnestly insisted that the verdict is excessive, and this is the difficult question in the case. The jury Returned a verdict for $1,500, and there was a judgment for that amount.
Appellee testified that his foot caught between a crate of chickens and the wall of the car, and that his back was wrenched as he fell, and that he was still suffering from the injury at the time of the trial, which was nearly two years after the date of the injury. He offered, upon his cross-examination, to submit to an. examination by any doctor, but the offer was not accepted. He had bought $8 worth of liniment, with which his back was rubbed, but obtained no permanent relief. His landlord sent him to a doctor, who treated him, and he supposed his landlord paid the doctor’s bill, but as he did not know the amount of the bill the jury was directed to allow nothing for the medical treatment; yet it was com petent for the jury to consider that he did receive medical treatment as bearing upon the extent of his injury. He made two crops after his injury, and had done much of all the work necessary for this purpose, but he testified that his efficiency was impaired, and that he was required to hire labor which would not otherwise have been done. Upon a consideration of all the testimony we are unable to say that the verdict is excessive.
As no error appears, the .judgment must be affirmed, and it is so ordered. | [
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J. Fred Jones, Justice.
Noah Simmons was convicted of grand larceny and sentenced to 21 years in the peniten tiary with 11 years suspended. On appeal to this court, he contends that the evidence was only circumstantial and was insufficient to sustain his conviction. The appellant relies on a rule announced in a number of our decisions that:
“Where circumstantial evidence alone is relied upon to establish the guilt of one charged with crime, such evidence must exclude every other reasonable hypothesis than that of the guilt of the accused.” Logi v. State, 153 Ark. 317, 240 S.W. 400.
See also Duckworth v. State, 83 Ark. 192, 103 S.W. 601; Ayers v. State, 247 Ark. 174, 444 S.W. 2d 695; Jones v. State, 246 Ark. 1057, 441 S.W. 2d 458.
The appellant contends that the facts and circumstances shown must be absolutely inconsistent with any other rational theory and cites Walker v. State, 174 Ark. 1180, 298 S.W. 20. In Reed v. State, 97 Ark. 156, 133 S.W. 604, we said:
“But mere circumstances of suspicion are not sufficient upon which to base the conviction for a crime, which must be established by substantial evidence to the exclusion of a reasonable doubt.”
In Parker v. State, 252 Ark. 1242, 482 S.W. 2d 822, we said:
“On appeal, in criminal cases, as in others, the evidence must be viewed in the light most favorable to the appellee, and the judgment affirmed if there is any substantial evidence to support the jury’s verdict. Murphy v. State, 248 Ark. 794, 454 S.W. 2d 302; Stanley v. State, 248 Ark. 787, 454 S.W. 2d 72. A conviction may be had on circumstantial evidence alone if there was substantial evidence to go to the jury because the law makes no distinction between direct evidence of a fact and evidence of circumstances from which the existence of the fact may be inferred. Lancaster v. State, 204 Ark. 176, 161 S.W. 2d 201. In light of the foregoing rules we state the evidence which we find sufficient to make a jury question.”
This court, in criminal cases on appeal, views a jury verdict, or a decision of the trial judge sitting as a jury, in the light most favorable to the appellee. We only determine whether there was substantial evidence to support the verdict and, if there is, we must affirm. McCray v. State, 254 Ark. 601, 494 S.W. 2d 708; Crow v. State, 248 Ark. 1051, 455 S.W. 2d 89. We do not attempt to weigh the evidence, for that is the function of the jury, or the trial judge sitting as a jury, who is in a position to evaluate the testimony of witnesses as they testify from the witness stand.
Now turning to the facts in the case at bar, Simmons was convicted of taking money from a cash register at a Penney store. Lela Smith, a customer in the Penney store, testified that she was standing near the cash register involved and heard the bell on the cash register ring. She said she looked immediately toward the cash register; saw Simmons standing sidewise beside the register, and saw some money in his hand as he left the cash register. She said that one of the clerks called for Simmons to halt, but that he continued to leave the store and walked out the door. She described Simmons as wearing a yellow, or gold, colored shirt, having an “Afro” hair style, and walking with a limp. This witness also testified that Simmons later came to her house; admitted to her that he had committed the crime and requested her not to testify against him in court as his attorney had advised that her testimony would likely convict him. On cross-examination this witness testified that she did not actually see Simmons take anything out of the cash register and that she did not see what he did with the money he had in his hand, but she did see him leave the store.
Georgia Hixon testified that she was employed at the Penney store and was busily engaged at the back of the store when she heard the bell on a cash register ring. She said she immediately looked toward the cash register and saw Simmons standing by it. She said as Simmons left the cash register, she walked toward him and told him to stop but that he just walked out of the store. She said that Simmons had on a yellow, or gold, colored shirt and walked with a limp, and that she saw no one else in the store dressed in that manner or limp when they walked.
Charles Smith, testified that he was employed at the Penney store on the day in question; that Mrs. Hixon called over to him and advised him that somebody had tapped the cash register till, and that it was a young man in a yellow shirt. He said he immediately went outside and overtook Simmons. He said Simmons was the only person he saw who had on a yellow, or gold, shirt. He said he told Simmons what Mrs. Hixon had said and that Simmons told him another young man had gotten the money; that he, Simmons, saw the other man going out the door and that he had on a yellow shirt. He testified that Simmons told him the other individual who had taken the money from the cash register threw it behind the watch counter. On cross-examination Mr. Smith said that the only reason he stopped Simmons was that he was the only one on the street who had on a yellow shirt.
Mr. Carl Brooks, another'Penney employee, testified that he followed Mr. Smith outside the store and met Smith and Simmons returning to the store. He said he overheard Simmons say that the person he saw run out of the store threw the money behind the jewelry counter. He said he found approximately $60 in wadded up bills behind the jewelry counter, and that the cash register was short the amount of money found.
Simmons testified in his own defense; he said that as he was walking out of the Penney store on the day in question, someone ran past him and threw some money on the floor behind the jewelry counter. He said he kne\y what was going on because he was familiar with crime himself. He said he just kept on walking and that when Mr. Smith overtook him and asked him to return to the store, he agreed to do so because he knew what Mr. Smith was talking about; that he knew he had nothing to hide, so he just told Mr. Smith where the money was. He said he told Smith “Yeah, I saw the dude. He threw the money over there.” Simmons denied that he took any money from the cash register. He said he was over by the door when he heard a woman “holler” for someone to stop, but that he took no heed because she was not referring to him. He denied telling Mrs. Smith that he was guilty but said he told her he would be found guilty if she testified against him.
Dwight Sims, a witness called by the defense, testified that he was in the vicinity of the Penney store on the day in question and saw Simmons that day. He said he also saw another man come out of the Penney store wearing a gold colored shirt. On cross-examination he testified that he had never seen Simmons before the incident happened, and that the other man he saw come out of the store wearing a gold colored shirt, ran down the street away from the store.
Kenneth Profit also testified as a' witness for Simmons. He said he was standing in front of the Penney store waiting for a bus on the day in question. He said that a “dude” came out of the Penney store running fast; that he was wearing a yellow shirt and he saw him run down the street. He said he did not know Simmons.
It is difficult to imagine a stronger case of circumstantial evidence than is presented by the record in this case. Certainly there is substantial evidence to sustain the conviction, so the judgment of the trial court is affirmed.
Affirmed.
George Rose Smith, J., concurs. | [
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George Rose Smith, Justice.
This is a dispute between two sets of tenants in common concerning the title to the south half of a certain lot in Little Rock. The trial court, sitting without a jury, held that the appellees had acquired title to the appellants’ undivided one-half interest in the property by adverse possession. For reversal the appellants contend that there is no substantial evidence in the record to support the court’s finding. We agree with that contention.
The property was formerly owned by William L. Patterson, who died in about 1933, without descendants. At Patterson’s death an undivided one-half interest in the property passed to his widow. That interest eventually vested in the appellees. The other undivided one-half interest passed to the descendants of Patterson’s deceased sister. That interest eventually vested in the appellants.
The appellees or their predecessors in title took possession of the property at least as early as 1954 and continued to live upon it until the present eminent domain proceeding was filed by the Little Rock Housing Authority in November, 1971. The Housing Authority, in seeking to acquire the fee simple title to the property, joined all the cotenants as defendants. The appellants filed their answer on January 10, 1972, asserting title to a half interest in the property. Later on the appellees filed an answer asserting title to the whole parcel by adverse possession.
Although the appellees or their predecessors were in possession of the property from 1954 until 1971, the continuity of their possession was effectively interrupted by a partition suit which resulted in a judgment entered in the Pulaski Circuit Court on July 30, 1964. Apparently the trial court in the case at bar failed to give proper weight to that judgment. The earlier judgment found specifically that the successors in interest of William L. Patterson’s widow were the owners of a half interest in the land and that the successors in interest of Patterson’s sister were the owners of the other half interest. Upon that finding the court ordered a partition of the property and appointed three commissioners for that purpose. As far as this record shows, the partition order was never carried into effect.
It is familiar law that a judgment establishing the ownership of land is conclusive upon the parties with respect to all questions that were or should have been put in issue in the case. Lillie v. Nunnally, 211 Ark. 202, 199 S.W. 2d 751 (1947). Hence the effect of the 1964 judgment was to extinguish any claim of adverse possession that might then have been asserted and to establish that the two sets of heirs were tenants in common of their respective half interests in the property.
There is no substantial evidence in this record to support a finding that the appellees acquired title by adverse possession after the entry of the 1964 judgment. The appellees’ proof merely shows that they continued in possession of the land and paid the taxes upon it. As between tenants in common those facts do not establish hostility of possession. Smith v. Kappler, 220 Ark. 10, 245 S.W. 2d 809 (1952). “For possession by one tenant [in common] to be adverse to his co-tenants, the knowledge of such adverse claim must be brought home to the co-tenants, either directly or by such acts that notice may be presumed.” Woolfolk v. Davis, 225 Ark. 722, 285 S.W. 2d 321 (1955). There is no proof that the appellees brought home to the appellants any such notice of an adverse claim between July 30, 1964, the date of the former judgment, and January 10, 1965, the date which was seven years before the appellants asserted their claim of title in the case at bar. Quite the contrary, Edgar Mayweather, the only one of the appellees who testified in the court below, stated that the judgment of partition was not carried into effect because the appellees were trying to buy out the owners of the other half interest. That attitude was of course a recognition of the cotenants’ ownership rather than a denial of it.
The judgment is reversed, and since the title to land is involved the cause is remanded for the entry of a judgment consistent with this opinion. | [
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Lyle Brown, Justice.
Appellant Harold Conrad, engaged in the business of clearing farm lands with heavy equipment, performed work for appellee William L. Carter, landowner. Appellant billed appellee for 67 hours of work at $15.00 per hour, which appellant claimed was the contract price. Appellee refused to pay that amount, claiming it was agreed that the maximum cost would run $150 per acre for bulldozing approximately two acres of land. The chancellor held that the purported contract was indefinite and decided the case under the quantum meruit rule, awarding appellant $350 for the work performed. On appeal it is contended that a definite contract was established and that the court erred in resorting to the quantum meruit rule.
There are two facets of the oral contract about which the parties disagree; one is the contract price, and the other being the time within which the work was to be performed.
With reference to the price, appellant said the sole agreement was $15.00 per hour. He did concede that they talked in terms of around $100 an acre:
Q. You didn’t tell him that you could do it for a little over $100 an acre?
A. I told him if it was sprouts like he told me it was, that I could.
Q. You told him if it was like he told you it was you could do it for a little over $100 an acre?
A. Yes, but I had been in the business long enough, I knew that it wasn’t just sprouts.
Q. A lot of people clear land for $100 an acre, don’t they?
A. They can do it cheaper than that with a regular cutting blade.
Appellant also conceded that the amount billed “was awful high for this job”.
Appellee’s testimony differed. He said he asked appellant for an estimate of the total cost, to which appellant replied: “Well, it will run you over $100 an acre, you can count on that”.
Q. How many acres were involved?
A. Two acres, and I said, “That’s fine, that’s good, if it run $150 it wouldn’t be bad”. Of course during this time I had Mr. Spence [tenant] and I told Mr. Conrad that Mr. Spence would represent me, that I wouldn’t be there and wouldn’t even know when they went out to do this work. [Mr. Carter, appellee, lived in Oklahoma].
* # * *
Q. Would you have hired Mr. Conrad to do this work for you at $15.00 per hour if he had not estimated the total cost to you per acre?
A. No, sir, I would not.
Witness W. B. Spence was present when the oral contract was made between the parties. He was appellee’s tenant. His memory about what was said between the two men was admittedly hazy. He did have some recollection about a conversation concerning contracting the job and that appellant declined to do so. He expressed no opinion as to whether a maximum price per acre was estimated by appellant. The witness said that after appellant completed the job, the witness and his son spent five days with a tractor and a chisel plow, pulling out roots from the cleared ground; he also said they pulled out a tree that was eight inches at the butt and some fifteen feet long, the tree having been pushed into the ground. He said an old house place consisting of approximately one acre, and one acre of trees and saplings, were in the contract for clearance.
We hold that this was not a case for the application of the quantum meruit rule. Both parties agree that there was a contract for services and the disputed question was the nature of the contract. “Where there is an express contract for services at a fixed compensation, there can be no recovery quantum meruit.” Christian & Taylor v. Fancher, 151 Ark. 102, 235 S.W. 397 (1921). However, we resolve chancery cases de novo. It is clear to us that the two men talked in terms of $100 an acre; however, they have a different version of the conclusion they arrived at on a maximum. Appellant said he told appellee that the work could be done for $100 an acre “if it was sprouts like he told me it was”. Appellee said he agreed that the cost could run as much as $150 per acre, and of course he should be bound by that agreement. The trial court observed that “it is ridiculous to say it would take 67 hours of bulldozer work to clear two and a fraction acres of land”. The court also observed that it was evident that the dozer worked several hours “slopping around there on wet ground”. There was also evidence that there were 130 trees, counting saplings, and that appellant said it would take fifteen minutes for each large tree. There was also evidence that in the category of large trees there were 21 trees better than 24 inches in circumference. It is our conclusion that the evidence establishes the contract to have been $15.00 per hour with a maximum of $150 per acre. On that basis the chancellor entered judgment for an amount equal to the contract which we find to have been entered into between the parties.
Affirmed.
Fogleman, J., dissents; | [
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McHanby, J.
This case involves the title to 8.14 acres of land, and is the second time it has been in this court, the opinion in the former case being unreported in the official reports. It is a suit by the appellee, Robert R. Dail, as executor of the estate of John R. Dail, in which the other heirs of John R. Dail joined, as plaintiffs, for the recovery from appellants of a small triangular piece of land described as all that part lying on the left bank, or north side, of Spring River, of the northeast quarter of the southwest fractional quarter in section 2, township 18 jnorth, range 3 west, and for damages for the wrongful detention thereof. The court found the facts to be that in 1884 Luke L. Dail gave the land in controversy to his son John R. Dail, by verbal gift, and that said John R. Dail immediately entered into possession thereof and continued in the possession of same until his death in October, 1913; that upon the death of John R. Dail, the appellee, Robert Dail, as executor, took possession of said land as assets of said estate for the payment of debts due by the estate, and that he, as such executor, continued in the possession thereof until the latter part of 1923, when appellant, Etchison, took the possession from him unlawfully; that the possession of said land by the said John R. Dail and the said Robert Dail, executor, was actual, open, notorious, adverse, peaceable, continuous and uninterrupted from 1881 until the latter part of 1923, under a claim of absolute ownership and without any adverse claim; that appellants had been in the unlawful possession of said land for a period of six years at a rental value of $10 per year, or $210, less the taxes paid by appellants during that time, which amounted to the sum of $’23.18, for the years 1923 to 1927, inclusive; and that the appellees had been damaged in the sum of $200 by reason of the wrongful detention of said land. The court further found that large claims had been filed against said estate, and that the personal property thereof was insufficient to pay the debts; that the appellees are the owners of said lands by adverse possession, as tenants in common, subject to the right of the executor to hold same until all probated claims against said estate were disposed of. A decree was entered for possession of said land in favor of appellees, and for damages, in the sum of $200 for the unlawful detention thereof. This appeal followed.
We think the evidence amply supports the findings of the court as above stated. Such findings are not against the weight of the evidence, but, on the contrary, are supported by the preponderance thereof. Appellant first contends for a reversal of the case that the executor had no right to recover for the purpose of paying the debts. The former appeal in this case settled that matter against appellants. The executor was holding the land in controversy, as well as other land, and was gradually paying the debts from the rents and profits, and had partially succeeded in doing so. As long as the debts of the estate remained unsatisfied, the lands belonging to the estate were assets in the hands of the executor for the payment of claims. The fact that they were not sold for this purpose did not concern appellants, as they were neither creditors nor heirs, and no complaint is made in this record by either heirs or creditors by reason of the delay in failing to pay the debts. As a matter of fact, all the heirs joined in this litigation for the recovery of the lands, ur statute, § 152, C. & M. Digest, provides that “Lands and tenements shall be assets in the hands of every executor or administrator for the payment of the debts of the testator or intestate. ’ ’ Upon his appointment and qualification as executor of the will of the deceased, John R. Dail, he took possession of all the land of the testator as assets of the estate needed for the payment of debts. During the course of the administration of the estate, he was deprived of it wrongfully by appellants, the debts remaining unpaid. He is entitled, therefore, to maintain this suit. In Burton v. Gorman, 125 Ark. 141, 188 S. W. 561, it was held that the lands of the decedent are assets in the hands of the executor or administrator, and deemed to be in his possession and subject to his control for the payment of the debts of the decedent, and that an administrator may maintain ejectment to recover possession of lands, when necessary for the payment of the debts of the estate, without joining the heirs in the suit. See also Massey v. Doke, 123 Ark. 211, 185 S. W. 271. Many other oases might be cited to the same effect.
Appellants next contend that title by limitation in the Dails has not been established. We have already stated that the court found such to be the fact, and that the evidence clearly preponderated in favor of the court's findings. We do not deem it necessary to enter mto a discussion of the testimony given by the various witnesses who testified in the ease. We think the evidence establishes beyond question the adverse posses sion claimed by appellees down to the time when such possession was interfered with by appellants, and that the possession was, in fact, adverse and not permissive, from the Browns.
It is next insisted that the appellees are estopped by laches. It is said that the appellees stood by and let William Brown deed the land to his wife, M. E. Brown, in 1908, and permitted the heirs of William and Mary Brown to sell and mortgage said land, all of which was a matter of record, and are now estopped from claiming same. Appellees, however, were not bound to take notice of these deeds and mortgages referred to, as they did not appear in their chain of title. See Singer v. Naron, 99 Ark. 446, 138 S. W. 958, and cases there cited. See also Gee v. Hatley, 114 Ark. 376, 170 S. W. 72. Nor do we think the evidence justifies the argument of counsel for appellant that the Dails recognized the Brown title, through which appellants claim. The evidence was disputed in this regard, and we cannot say that the chancellor’s finding was against the preponderance of the evidence. We have reached the conclusion that the Browns had no record title to this particular tract of land.
Some reliance is placed by appellants on the payment of taxes for a period of years. Appellants’ grantors appear to have paid the taxes thereon from 1914 to 1923, and appellants paid them from 1923 to 1927. Appellants’ payments of taxes from 1923 to 1927 were made while this suit was pending, as it began in August, 1924. The payments made by Joe Brown, from 1914 to 1923, were made without knowing that he was paying on it, and it is evident, from the testimony of Robert Dail, that he omitted paying on it without knowing that the taxes he did pay did not cover this particular tract of land. Moreover, this is not “unimproved and uninclosed land,” such as is mentioned in § 6943, C. & M. Digest, and that payment of taxes under the conditions as shown by the record in this case could not possibly invest title in appellants. We find no error, and the judgment is accordingly affirmed. | [
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Mehaeey, J.
This is a suit on a foreign judgment. The complaint states that on November 2, 1929, plaintiff in the district court of Wyandotte County, Kansas, under the style of Louisiana Lewis, plaintiff, v. United Order of Good Samaritans, a corporation, and F. Fitzpatrick, defendants, filed a petition to recover on a policy of insurance issued (by the United Order of Good Samaritans on the life of Anthony Lewis, in which plaintiff was named as beneficiary, and which provided for payment of $1,000 for natural death and $2,000 for accidental death. That summons was issued on said petition and services were had as shown by a copy of the service set out in the complaint; that judgment was rendered against the defendant by the Kansas court on December 16, 1929, for $2,000. The prayer is for judgment for $2,000, interest and costs. A copy of the petition filed in the District Court of Wyandotte ¡County, Kansas, was attached to and made part of this complaint. ¡Copy of the judgment of the Kansas court recited that the defendant had been personally served with summons, service of same being had on the agent of the above company, as provided by law;. Defendant filed motion to dismiss, answer, motion to transfer to equity and motion for bond for costs. Thereafter the defendant filed a substituted answer in which it is alleged that neither F. Fitzpatrick nor Bessie (E.) Young were agents of defendant in the State of Kansas at the time service of summons was attempted to be made on said Bessie (E.) Young by delivering a copy thereof to her in Wyandotte County in said State; neither F. Fitzpatrick nor Bessie (E.) Young were authorized or empowered to represent defendant in any capacity in the iState of Kansas at said time. The said Fitzpatrick was not employed by defendant in any capacity at the time it is alleged a policy of insurance for plaintiff’s intestate was issued, and was not employed by defendant in any capacity at the time it is alleged he took up such policy of insurance; that the defendant is a fraternal benefit society, and service of process, under the laws of Kansas, can only be made on it by making service on the Insurance Commissioner of said State, if it had been admitted to transact business in said ¡State; that it was not and never had been licensed or admitted to transact business in said State of Kansas and therefore could not be sued in said State; that it had never transacted business in the State of Kansas, and had never applied for or been licensed to do so; that said court had no jurisdiction of it to render any judgment against it; that it was never notified of the pendency of said suit; had no knowledge of same and never appeared in said action nor otherwise gave the court trying same jurisdiction over it. The appellant filed the f ollowing .demurrer to the substituted answer:
“1. The answer does not state facts sufficient to constitute a defense.
“2. The answer does not state facts sufficient to entitle the defendant to the relief sought.
“3. The duly verified and certified copy of the judgment attached to the complaint, and upon which suit is based, finds and shows there was proper service.
“4. The recitation in the Kansas judgment that service was had is conclusive, and the record reciting it cannot be contradicted.
“5. The defendant cannot show by testimony aliunde that the defendant was not served properly in the State of Kansas, because each State is a judge of its own service, and the finding of the judgment as to service is conclusive on every one.
‘ ‘6. Foreign judgments must be treated like domestic judgments, and the validity of a domestic judgment cannot be impeached as to want of service by testimony aliunde, but the recitations in the record are conclusive.”
The court overruled the demurrer, and plaintiff declining to plead further, the complaint was dismissed. The case is here on appeal. The only question for our consideration is: Is the recital as to jurisdiction in a foreign judgment conclusive or can it be impeached for want of jurisdiction ?
Article 4, § 1, of the 'Constitution of the United States is as follows: “Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof. ’ ’
“Under the provisions of the Constitution of the United States and the Federal statutes enacted thereunder requiring that a judgment rendered in one State must be given in all other States the same faith and credit which it has by law or usage in the State in which it was rendered, judgments in personam of sister States are placed on the same footing as domestic judgments as regards the merits oif the claim or subject-matter of the suit, and when offered as evidence, or pleaded as the foundation of a right, in an action in the courts of another State, are entitled to the same force and effect as they have in the 'State where rendered,” 15 R. O. L. p.. 927 et seq.
There is no conflict in the authorities as to the above statement of the law. It will however be observed that the foreign judgment is placed on the same footing as domestic judgment as regards the merits of the claim, but “the clause of the Federal Constitution which requires full faith and credit to be given in each State to the records and judicial proceedings of every other State applies to the records and proceedings of courts only so far as they have jurisdiction, and the courts of one State are not required to regard as conclusive any judgment of the court of another State which had no .jurisdiction of the subject or of the parties. It follows therefore that the jurisdiction of a court rendering a judgment or decree is always open to inquiry under proper averments, where its .conclusiveness is questioned in a court of another State, and when a defendant is sued in the court of his domicile on a judgment obtained against him in another State he may show that the court of such other State did not have jurisdiction to render the judgment against him. ” 15 R. '0. L. p. 929, et seq; 34 C. J. p. 1142; 34 O. J. p. 1144.
The general rule is that the full faith and credit clause of the Constitution and the laws enacted thereunder apply only where the court rendering the judgment had jurisdiction. The Supreme Court of the United States, in construing the provisions of the Constitution and the laws thereunder enacted, said: “This does not prevent an inquiry into the jurisdiction of the court in which a judgment is rendered to pronounce the judgment, nor of the right of the State to exercise authority over the parties or the subject-matter, nor whether the judgment is founded in, or impeachable for, a manifest fraud.” Cole v. Cunningham, 133 U. S. 107, 10 S. Ct. 269 ; Old Wayne Life Ins. Co. v. McDonough, 204 U. S. 8, 27 S. Ct. 236, 51 L. Ed. 345 ; Thompson v. Whitman, 85 U. S. 457 ; Nat. Surety Co. v. Mulligan, 105 N. J. Law 336, 146 Atl. 372 ; U. S. Fidelity & Guaranty Co. v. Richey, (Tex. Civ. App.) 18 S. W. (2d) 231 ; Bonnet-Brown Sales Service v. Utt (Mo.) 19 S. W. (2d) 888 ; 2 Black on Judgments, p. 1250.
The weight of authority is to the effect that a foreign judgment, under the full faith and credit clause of the Constitution and the laws enacted thereunder, is conclusive on collateral attack except for fraud or want of jurisdiction. This court said in a recent case: “It is equally well settled that a foreign judgment can be attacked collaterally without violating the full faith and credit clause of the Federal Constitution in an action thereon in a State other than that in which it was rendered, by showing that the defendant had not been served with process and did not enter his appearance to the action in the State where the judgment was rendered.” Miller v. Brown, 170 Ark. 949, 281 S. W. 904. See Pickett v. Ferguson, 44 Ark. 177 ; National Exchange Bank of Tiffin v. Wiley, 195 U. S. 257, 25 S. Ct. 76 ; Chicago Life Ins. Co. v. Cherry, 244 U. S. 25, 37 S. Ct. 492 ; Barkman v. Hopkins, 11 Ark. 157. It is true that the judgment in the case of Miller v. Brown, supra, was a judgment of the justice of the peace court, but the transcript had been filed in the circuit court, as provided by the statute of Missouri. Bevised Statutes of Missouri, 1919, §§ 2850 and 2851, provide that the judgment shall be under the control of the court where the transcript is filed and may be revived and carried into effect in the same manner and with like effect as judgment of circuit courts, etc. “Where by the laws of one State a judgment of a justice of the peace, by virtue of entry of a transcript thereof in a superior court, acquires the force and effect of a judgment of the court in which it is entered, such judgment must be given the same force and effect in every other State.” 34 C. J. p. 1154.
Appellant contends however that when a judgment of a sister State is sued on in Arkansas it must be treated as a domestic judgment rendered by the courts of Arkansas. He quotes from and relies on the case of Boyd v. Roane, 49 Ark. 397, 5 S. W. 704. The Boyd v. Roane case is an Arkansas judgment rendered in one county in Arkansas and sued on in another county in Arkansas. It does not discuss the question here involved. We are required under the Constitution and laws to give full faith and credit to the judgment of a sister State. That is a judgment rendered in one State must be given in all other States the same faith and credit which it has by law or usage in the State in which it was rendered. The judgment sued on here was rendered by the court in the State of Kansas, and we must therefore give it tho same faith and credit which it has by law or usage in the State of Kansas.
In a case in the Kansas court the sheriff’s return showed that the writ was executed “by leaving a copy thereof at the usual place of residence of the defendant.” The Kansas court, after discussing the English rule and the decisions of the courts in this country, said: “We are aware it is a question of evidence and not of pleading; but we know of no statute that makes a sheriff a final and exclusive judge of where a man’s residence is, or what is the age of a minor, or who are the officers of a corporation, or where is their place of business; and when tlie statute made it the duty of the sheriff to ascertain these facts, it did not make his return of such facts conclusive. Of his own acts his knowledge ought to be absolute, and himself officially responsible. Of such facts as are not in his special knowledge he must act from information, which will often come from interested parties, and his return thereof ought not to be held conclusive.” Bond v. Wilson, 8 Kan. 228, 12 Am. Rep. 466.
In a later Kansas case the court said: “It is true that § 572 of the Civil Code provides that a judgment shall not be vacated on motion, or petition, until it is adjudged that there is a valid defense to the action; but this section in the nature of things does not apply to judgment rendered by a court having no jurisdiction of the person of the defendant, and where the judgment, so called, is a nullity.” Hanson v. Wolcott, 19 Kan. 207. See also Reynold v. Fleming, 30 Kan. 106, 1 Pac. 61 ; McNeill v. Edie, 24 Kan. 108 ; Schatt v. Linscott, 80 Kan. 536, 103 Pac. 997 ; O’Neil v. Eppler, 90 Kan. 314, 133 Pac. 705 ; Supply Co. v. Whan, 111 Kan. 687, 208 Pac. 563.
If we give the same faith and credit to the judgment sued on herein as it has by the law or usage in the State of Kansas where it was rendered, we must hold that it may be impeached for want of .jurisdiction, notwithstanding the recitals in the record. Appellant calls attention to the case of Beauchamp v. Bertig, 90 Ark. 359, 119 S. W. 75, 23 L. R. A. (N. S.) 659 ; It is said in that case: “It is held-that the same effect is to be given to the record in the courts of the State where produced as in the courts of the State from which it is taken.” Applying that rule, here, the judgment sued on is to be given the same effect here where produced as in the courts of the State of Kansas from which it is taken. The latest case in this court is Miller v. Brown, supra, where the same rule was announced. The judgment of the circuit court is affirmed.
Hart, C. J., concurs. | [
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Mehappy, J.
The 'Southwestern Marble & Tile Company brought suit in the Garland Chancery Court against appellants, Robert Higgins and Hot Springs Golf & Country Club Association, and against appellees, A. W. Griffee, C. J. Horner and Community Bank & Trust Company. It alleged that the Hot Springs Golf & Country Club Association was the owner of certain real property situated in Garland County, Arkansas, and that it had entered into a contract with appellant, Robert" Higgins, for the erection of a building on said lands, and Higgins sublet a part of said contract to appellee, Griffee. . That Griffee purchased certain materials from the Southwestern Marble & Tile Company in the sum of $1,432.67, which materials went into said improvement, and it claimed a lien on the lands on which the building was erected. It also alleged that Horner and the Community ■Bank & Trust Company claimed an interest in the property. It had previously filed a mechanic’s lien in proper form and in the time prescribed by law for the sum sued for. It asked judgment against Griffee, and that the same be declared a lien upon the real property described in the complaint. The Community Bank & Trust Company filed answer admitting the contract between the Hot Springs Golf & Country Club Association and Higgins for the erection of the building and the subletting of part of the contract to Griffee. This answer also alleged that it had no knowledge in reference to the claim of the Southwestern Marble & Tile Company and denied that it had any claim. The Community Bank & Trust Company made its answer a cross-complaint alleging that on July 11, 1928, it at the instance and request of Griffee, and in pursuance to the agreement of 'Higgins, agreed to advance tp Griffee certain sums of money for the purpose of paying for labor and materials on the subcontract which Griffee had with Higgins, and with the provision that the payments of estimates due Griffee by Higgins should be paid to Community Bank & Trust Company, and provided that in no case should any advances be made in excess of the contract price $5,500, the amount which Higgins had agreed to pay Griffee. That Higgins was the general contractor, accepted the agreement and agreed to pay the amounts as they became due to the Community Bank & Trust Company. The agreement between Higgins and Griffee as to the bank advancing money, was as follows:
“July 11, 1928.
_ “Mr. Robert Higgins, General Contractor,
“Hot Springs Golf and Country Club, City.
“Dear Sir: The Community Bank & Trust Company is advancing me money for labor and material on the Hot 'Springs Golf and Country Club job and request that you make all payments direct to them as estimates become due, in no case to exceed the amount of the contract: fifty-five hundred dollars ($5,500).
“Yours very truly,
“A. W. Griffee.
“I accept the above agreement and -will pay the amounts as they 'become due direct to the Community Bank fe Trust Company.
“R. T. Higgins.”
The Community Bank & Trust Company alleged that it loaned Griffee, on the security of its agreement and the acceptance thereof by Higgins, sums aggregating $1,675 evidenced by three promissory notes executed by Griffee to it, and that the money was loaned for the purpose-of paying for labor and material; that it went into the work Griffee was performing for Higgins. That, while the bank did not enter into any agreement with Griffee and Higgins to do so, it acted with their consent and approval and honored checks and paid for material alleged to have been used in the building in the amount of $2,928.98, and for labor $2,849.93. It alleged that Higgins executed and delivered to it on October 27,1928. his check for $2,456.75 drawn on the Arkansas National Bank of Hot Springs with the notation on the check, “Paid in full Country Club Job for A. W. Griffee, contract.’’’ That at the time said check was delivered to it Griffee was indebted to it in the sum of $1,675 principal on said notes executed by Griffee for the purpose of securing money to pay for the labor and materials which went into the building and interest on said notes of $15.16, aggregating $1,690. That no part of this sum had been paid. That the bank had agreed to apply the balance of the proceeds of said check after paving these notes, upon bills which had been presented to it and had been approved by Griffee and Higgins. It accepted the check, and the bank refused to pay same, and it was returned to 'Community Bank & Trust Company. It asked judgment against Higgins and Griffee for $2,456.75 with interest and that upon the payment of the check it would be authorized and directed to first pay the sum due it on said notes with interest, and that the balance be applied under the order and direction of the court. Copies of the notes and check were attached to the complaint as exhibits, also a list of cheeks drawn by Griffee which purported to be payments for material and labor. The total amount paid out by the bank being $5,778.91.
C. J. Horner filed answer alleging that he had furnished materials for Griffee to go into the Country Club job; had filed his mechanic’s lien against the property of the Hot Springs Golf & Country Club Association and asked for judgment and a lien for $251.90.
A. W. Griffee did not answer.
Peyton Bondurant filed intervention alleging that he furnished materials to Griffee which went into the Country Club job and claimed a mechanic’s lien and judgment for $223.97.
Robert Higgins filed answer denying that at the request of Griffee the Community Bank & Trust Company agreed to advance to either Griffee or him sums of money for the purpose of paying for labor and materials. He admitted that Griffee executed the instrument, and that he signed the memorandum at the bottom, but stated that he at no time entered into any agreement with the Community Bank & Trust Company other than that contained in his acceptance of the order directed to him and signed by Griffee; denied that money was paid by the bank to Griffee with his consent and approval. He alleged that the agreement entered into between himself and Griffee formed a part of and was subject to the agreement and specifications for the erection of the building. Higgins also alleged that on October 27 Griffee delivered to him receipts showing payment of $1,432.67 to the Southwestern Marble & Tile Company the sum of $472.21 to Homer, which receipts purported to be in full payment of all materials furnished to Griffee and used in the erection of the building. That Griffee also exhibited to him a receipt from Peyton Bondurant, and that the Southwestern Marble & Tile Company, Horner and Bondnrant were claiming liens on the building and premises and claiming they had never been paid, and alleged that, if the liens were established, Higgins would be compelled to pay and discharge them as a liability against Griffee, and that, if the liability on the liens was established, it should be discharged out of the sums due on his contract as a part of the consideration for the performance thereof. He admitted that, at the time his check was delivered, Griffee was indebted to the Community Bank & Trust Company $1,675 and interest, but denied that he entered into any agreement with the bank to apply any sum of money represented by said check upon the bills. He admitted that he stopped payment of the check because the sum of money was not due Griffee, and was not payable to the Community Bank! & Trust Company. He alleged that, if the claims of the Southwestern Marble & Tile Company, Higgins and Bundurant were established as liens, he would be compelled to pay them, and that he was entitled to deduct any sum which he might be compelled to pay from the amount due said Griffee and payable to the Community Bank & Trust Company under his acceptance of the order, and that he was willing to pay the sum of $2,456.75 to such person or persons as the court might determine were entitled to the same.
Higgins and the Hot 'Springs Golf & Country Club Association answered complaint of the Southwestern Marble & Tile Company, admitting the ownership of the lands owned by the Country Club Association, admitting the contract for the erection of the building and that Higgins sublet part of the contract to Griffee. They admitted that Griffee purchased materials from Southwestern Marble & Tile Company which were used in the construction of the building, but had no information as to the amount, and denied that they were liable for the payment thereof, and denied that the Southwestern Marble ■& Tile Company were entitled to a lien on the building; denied that Horner and the bank had any claim upon the property. They then alleged that Griffee ayas to install the marble and slate AYork for $5,500, and that Griffee did install and furnish the material and that on October 27,1928, there AYas a balance due Griffee on the contract of $2,189, and that the Southwestern Marble & Tile Company claimed it AYas entitled to receive $1,432.67, and that on October 26, the Southwestern Marble & Tile Company executed its receipt acknowledging payment in full, and that, acting upon the faith of said receipt, Higgins delivered to the Community Bank & Trust Company his check for $2,456.75 in full payment of the sum due Griffee under the contract. The receipt of the Southwestern Marble & Tile Company Avas attached as an exhibit and was signed by A. N. Mc-Aninch. That Higgins would not have issued said check to the bank for the use and benefit of Griffee if the receipt of the Southwestern Marble & Tile Company had not been exhibited and delivered to Higgins. Higgins and the Hot Springs Golf & Country Club Association filed their answer to the cross-complaint of Horner, denying the allegations in Horner’s cross-complaint. About the same allegation was made with reference to receipt by Horner and allegation that the Southwestern Marble & Tile 'Company and Horner were estopped by giving the receipts.
The court rendered judgment in favor of the Southwestern Marble & Tile Company against the estate of A. W. Griffee and Robert Higgins and the Hot Springs Golf & Country Club Association for the sum of $1,432.67, with interest from October 27, 1928, at 6 per cent, per annum and costs, and in favor of C. J. Horner against the same parties for the sum of $251.90, Avith interest from October 27, 1928, at 6 per cent, per annum and costs, and in favor of the Community Bank & Trust Company against the estate of A. W. Griffee and Robert Higgins for the sum of $1,903.32, Avith interest at 8 per cent, per annum from date of judgment and costs. Judgment was also rendered in favor of Peyton Bondurant against the estate of A. W. Griffee, Robert Higgins and Hot Springs Golf & Country Club Association for $223.97, with interest from October 27, 1928, at 6 per cent, per annum and costs. The judgments of the Southwestern Marble & Tile 'Company, C. J. Horner and Peyton Bondurant were declared liens upon the property of the Hot Springs Golf & Country 'Club Association and provided for sale of property. While appellants call attention to the receipts given by the Southwestern Marble & Tile Company, Bondurant and Horner, and say that Higgins relied on these receipts, they close their brief with the statement that the court should have found that the claims of Southwestern Marble & Tile Company, Horner and Bondurant should be paid. The undisputed evidence shows that these parties furnished the materials, and that said materials actually went into the building. Neither Higgins nor the Hot Springs Golf & Country Club Association was in any way prejudiced by the receipts. Neither of them relied on the receipts nor changed their position in any way. Higgins was present when receipts were given and knew that they were given for a check and knew their claims had not been paid. He knew all the facts.
We said recently: “It is true that one by his conduct or statement may he estopped from asserting rights which might otherwise have existed, but, before he will be estopped, it must be shown that another has in good faith relied on such conduct or statements, and has been thereby led to change his position for the worse.” Norton v. Maryland Casualty Co., ante p. 609. However, appellants do not insist that the judgments in favor of these parties were not proper. It is conceded by Southwestern Marble & Tile Company and Bondurant that there should be no personal judgment in their favor against Robert Higgins and Hot Springs Golf & Country Club Association. The appellants do not argue the question. However, since appellees request that the said personal judgment in favor of these parties against Higgins and Hot Springs Golf & Country Club Association is an error, the judgment is accordingly modified as requested. Appellants insist that the judgment in favor of the Community Bank & Trust Company against the estate of A. W. Griffee and Bobert Higgins should be reversed.
The contract as to the furnishing of money is set out above. Higgins as well as Griffee was interested in this matter. The bank furnished the money sued for and did it on the faith of the letter written by Griffee to Higgins, and there is nothing to indicate that the bank was to look after the distribution of the money, but the agreement was to advance money to Griffee to pay for labor and materials. There was no suggestion that the bank was to see that the money so advanced was properly applied. Higgins accepted this agreement as it was written without suggesting any modification or change, and he of course knew that the money under this agreement would be paid by the bank direct to Griffee. It is undisputed that the bank furnished the money.
The questions here are similar to the questions in the case of Oliver Construction Co. v. Union Trust Co., 171 Ark. 482, 284 S. W. 779, and Crow Oil & Gas Co. v. Drain, 171 Ark. 817, 286 S. W. 971.
The modification as to personal judgment above mentioned is made as requested by appellee, and the decree is in all other things affirmed. | [
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Hart, C. J.
Noel Phillips prosecutes this appeal from a judgment convicting him of seduction. It is conceded, and the testimony of the prosecuting witness established the crime, but it is insisted that there is not sufficient evidence to sustain the verdict because there is no corroboration of the testimony of the prosecuting witness. In such cases before conviction can be had, it is necessary for the testimony of the prosecutrix to- be corroborated both as to the promise of marriage and the intercourse. Brooks v. State, 126 Ark. 98 ; McMaster v. State, 163 Ark. 194 ; Dooms v. State, 164 Ark. 50 ; Taylor v. State, 174 Ark. 800 ; Sloan v. State, 172 Ark. 44.
The evidence shows that a child was born to the prosecuting witness on the 6th of February, 1929. Other evidence than her own testimony tended to show that for about a year before that time the defendant had been keeping company with the prosecutrix and that she had ceased to go with other boys. She was also making preparations for her wedding. Her father had the defendant arrested after he discovered his daughter’s condition, and the defendant, through the deputy sheriff, made a proposition to the father that he would marry his daughter if the father would cause him to be released. A physician also testified that the defendant came to him with a proposition to cause a miscarriage of the prosecuting witness.
Under the authorities above cited these facts were sufficient to corroborate the testimony of the prosecuting witness. We have carefully examined the record. It shows that the defendant had a fair trial, and that his theory of the case was fully covered by the instructions given by the court. The instructions asked by him and refused were fully covered by those'given. We find no prejudicial error in the record, and the judgment will therefore be affirmed. | [
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John A. Fogleman, Justice.
Appellant Langston filed with the Perry County Board of Election Commissioners a petition nominating him for the office of Mayor of Bigelow prior to the General Election in 1972. Ballots were printed and an election held on November 7, 1972. More votes were cast for Langston than for a write-in candidate named Brown. When the incumbent mayor, Johnson, continued to act as such in 1973, Lang-ston applied to the Circuit Court of Perry County, Arkansas, for a writ of mandamus commanding Johnson to cease to act as mayor and prayed that Johnson be required to show his claim to the office and that the trial court determine which of the two parties was mayor of Bigelow. Johnson answered that he had been duly elected and qualified as mayor; and prayed dismissal of Langston’s complaint. The circuit court held that Bige-low, an incorporated town, should elect a mayor only in every fourth year, commencing with 1966, and that Lang-ston had no claim to the office.
On appeal, Langston contends the court erred in so holding and in holding there was no statutory authority for an election in Bigelow in 1972. We agree with the circuit judge. Arkansas Statutes Annotated § 19-1201.1 (Repl. 1968) provides that the qualified electors of incorporated towns shall elect a mayor on the Tuesday following the first Monday in November 1966 and every four years thereafter. An election held without statutory authority is a nullity and authority to hold an election at one time will not warrant an election at another. McCoy v. Story, 243 Ark. 1, 417 S.W. 2d 954; McDaniel v. Edwards, 198 Ark. 288, 128 S.W. 2d 1007; Simpson v. Teftler, 176 Ark. 1093, 5 S.W. 2d 350. Application of the cited authorities, particularly McDaniel, dictated the disipissal of Langston’s complaint.
We do not understand hoyv' the, provisions of Ark. Stat. Ann. § 19-1202 and Ark. Stat. Ann. § 19-1206 (Repl. 1968) required that anrelection for mayor be held in Bigelow in 1972, Even if these1 sections otherwise would have required an election in 1972, there is nothing what ever in this record to show that the city council appointed Johnson mayor. The prohibition in § 19-1202 against an appointed officer serving beyond the term of the council making the appointment could not be applied in this case, even if it were otherwise applicable to the office of mayor, for the further reason that nothing in this record shows that the term of the Bigelow council had expired. In order to maintain his action, appellant had the burden of showing his own entitlement to the office. Ark. Stat. Ann. § 34-2203 (Repl. 1962). See Jones v. Duckett, 234 Ark. 990, 356 S.W. 2d 5; State v. Hagemeister, 161 Neb. 475, 73 N.W. 2d 625 (1955); Saylor v. Rock Castle County Board of Education, 286 Ky. 63, 149 S.W. 2d 770 (1941); Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917); Tillman v. Otter, 93 Ky. 600, 20 S.W. 1036 (1893); State v. Ellington, 117 N.C. 158, 23 S.E. 250 (1895).
Appellant also argues that the court erred in not requiring Johnson to show his entitlement to the office. It is sufficient to say that Johnson was not required to make this showing until appellant had met the burden of showing his entitlement to the office, because appellant was not otherwise entitled to maintain the action. Under the authorities above cited, appellant could only succeed upon the strength of his own title, not the weakness of Johnson’s.
The judgment is affirmed.
Harris, C.J., not participating. | [
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Carleton Harris, Chief Justice.
On September 10, 1970, Committee “A” of the Arkansas State Plant Board conducted a hearing wherein evidence was taken on whether the license of Ewell Thomas, d/b/a Thomas Termite Control, appellant herein, should be revoked. Testimony and numerous written exhibits were presented to the committee, Mr. Thomas not appearing personally, or by counsel, at said hearing. Subsequently, on September 22, 1970, appellant was advised that his license had been revoked. On appeal to the Circuit Court of Pulaski County (Third Division), the order of revocation was affirmed, and from the judgment so entered, appellant brings this appeal. Several allegations for reversal are urged and we proceed to discuss these points.
It is first asserted that the matter should have been remanded to the State Plant Board because the license revocation by Committee “A”, “being made upon unlawful procedure was in excess of the agency’s statutory authority.” It is first argued under this point that appellant was denied the right to counsel as granted by Ark. Stat. Ann. § 5-709 (a) (Supp. 1971) because the notice sent to him by the board of the hearing made no mention of this right. We cannot agree with this contention. The statute gives one the right to appear in person or by counsel, but there is no requirement that the notice of hearing contain such information. Appellant, however, is hardly in a position to make such a contention because the record reflects that after receiving the notice from the board, he wrote a letter of reply in which he said, “I am turning all of this mess you sent me to my lawyers and they will decide what to do with it.” He added that if the board decided to revoke his license, he was “taking this to the United States Supreme Court and my Lawyers will handle this for me.” About two weeks later, appellant wrote another letter advising that his lawyers “will be asking you and your Inspectors to appear in court to answer several Questions.” Accordingly, it is very evident that Thomas was aware of his right to counsel.
It is next averred that the license was revoked by Committee “A” rather than the entire board. The record is not entirely clear ip this regard, but does re- fleet that the decision was reduced to writing with the supporting evidence, and the law, as required by Ark. Stat. Arin. § 5-710 (b), and rriade.a part of the record of the hearing as required by the Administrative Procedure Act (Act 434 of 1967, Ark. Stat. Ann. § 5-701 - 714 [Supp. 1971]). Discussion of this allegation is unnecessary since this argument was not raised in the trial court. In fact, appellant’s own pleadings filed in the Pulaski County Circuit Court appear to be contrary to his argument. On November 22, in his motion to set aside revocation of the pest control license held by Thomas, appellant states:
“The decision rendered by the Arkansas State Plant Board [our emphasis] to permanently revoke defendant’s pest control license and the entire proceedings thereon was based upon hearsay testimony and evidence and denied defendant his right to confront witnesses against him and to allow said evidence on appeal is only to repeat the violation of defendant’s constitutional rights.”
On the same date, he filed a motion for a trial by jury, stating:
“On September 11, 1970, the State Plant Board [our emphasis] permanently revoked defendant’s pest control license. To deny defendant a jury trial of that decision is to deny defendant of his livelihood without due process of law.”
It thus appears that appellant recognized that his license had been revoked by the full board, but, if otherwise, as already pointed out, we still cannot consider the argument since this matter was not raised in the trial court and cannot be raised here on appeal for the first time. Gregory v. Gordon, 243 Ark. 635, 420 S.W. 2d 825.
It is also mentioned that only three members of Committee “A” were present at the hearing, rather than the full committee of four. Of course, the three constituted a majority of the committee, but, inasmuch as this argument too was not presented to the trial court and is here raised for the first time, it likewise cannot be considered.
It is contended that the court erred in not granting appellant’s motion to exclude hearsay evidence taken at the committee hearing. Gerald King, head of the Commercial Pest Control Section of the Division of the Plant Industry, State Plant Board, and who notified appellant of the hearing, together with Martin Bracy, Inspector for the Board, investigated numerous jobs that had been performed in northeast Arkansas by Mr. Thomas, and offered in evidence various statements from persons who had entered into contracts with Thomas to have their homes treated for pest control, together with some contracts; also appellant’s monthly report form for two months was offered, and evidence presented that numerous jobs performed by Thomas had not been reported to the board as required; some checks and photostats of checks received by Thomas were also placed in evidence. We find no merit in this contention. Ark. Stat. Ann. § 5-709 (d) of the Administrative Procedure Act provides that, except where irrelevant, immaterial, or unduly repetitious, any oral or documentary evidence, not privileged, may be received if it is of a type “commonly relied upon by reasonably prudent men in the conduct of their affairs.” The bulk of the evidence certainly appears to be such as would be relied upon by reasonably prudent men in the conduct of their affairs. Let it be remembered that this was a hearing before an administrative committee which is not bound by strict rules of evidence. See Fisher v. Branscum, 243 Ark. 516, 420 S.W. 2d 882.
It is next argued that the court erred in failing to grant appellant’s motion for a jury trial. Again, we do not agree. Ark. Stat. Ann. § 5-713 (g) of the Administrative Procedure Act provides:
“The review shall be conducted by the court without a jury and shall be confined to the record, except that in cases of alleged irregularities in procedure before the agency, not shown in the record, testimony may be taken before the court.”
Finally, it is urged that the action taken in revoking the license of Mr. Thomas was too harsh and should be modified. Board records, as shown by the minutes of various meetings, reflect previous violations of the act, and numerous instances were included in the present charge. The statute, Ark. Stat. Ann. § 77-1807 (Supp. 1971), sets out the grounds for invalidation or non-renewal of a license and the violations charged against appellant are included in this section. We are unable to say that the finding of the board was arbitrary or capricious.
Affirmed.
Rules and regulations of the Arkansas State Plant Board provide that Committee “A” shall consist of the board member who is head of the Department of Entomology of the University of Arkansas, the board member who represents the Arkansas. Pest Control Association, • board member* who represents the Arkansas Feed Manufacturers Association and the board member who represents the Arkansas Pesticides Association. This committee hears matters relating to the licensing of pest control operators. Committee "B” is likewise composed of four members who hear matters pertaining to different classifications.
The investigation of Thomas related to statutes and regulations concerning (1) his failure to report work within the time and manner specified and pay inspection fees due and (2) performing work in a classification for which he did not have a license. | [
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Conley Byrd, Justice.
Appellant American Pioneer Life Insurance Company seeks to avoid its liability upon a credit life insurance policy issued to Lawrence E. Smith upon the basis that his statement in the application that “I am now in good health” was incorrect within the meaning of Ark. Stat. Ann. § 66-3208 (Repl. 1966). It is admitted that the insured suffered from diabetes mellitus, having been hospitalized in 1956, and that he remained on medication therefore until his death. It is also admitted that he suffered a heart attack in 1968, which resulted in his receiving a disability retirement and that he continued to make regular visits to his doctor and to take three different types of medication therefor until the time of his death on September 23, 1971. The trial court held in favor of the beneficiaries.
For the reasons set forth in Dopson v. Metropolitan Life Ins. Co., 244 Ark. 659, 432 S.W. 2d 410 (1968), Life & Casualty Ins. Co. v. Smith, 245 Ark. 934, 436 S.W. 2d 97 and Union Life Insurance Company v. Davis, Adm’x., 247 Ark. 1054, 449 S.W. 2d 192 (1970), we reverse. Upon the admitted facts, we deem the statement “I am now in good health” to be an incorrect statement as a matter of law. Furthermore, we deem the proof as to materiality of the incorrect statement to be undisputed. Not only did the expert testify that the policy would not have been issued had the true facts been correctly stated but the autopsy reports shows the immediate cause of death as congestive heart failure.
Reversed.
Harris, C.J., not participating. | [
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Conley Byrd, Justice.
Appellant, Mrs. Joel Lambert, d/b/a Lambert Seed Company, used a two-ton Dodge truck equipped with a “cheater” axle in the operation of her seasonal seed business. While the truck was being driven along the highway near a railroad siding running parallel thereto, the right rear duals from the “cheater” axle became detached, rolled across the ground between the highway and the railroad siding and struck ap-pellee, J. D. Markley, a member of a train crew at work on the siding. Mr. Markley was taken to the hospital where he remained for some time. The railroad employees picked up the dual wheels and transported them to the train station in Paragould where they remained in the control of the railroad company for several days. The driver of appellant’s truck did not know that the wheels had become detached until he was stopped at Paragould, several miles from the scene of the accident.
The complaint alleged, and evidence was submitted to the jury upon, the issues of res ipsa loquitur and the specific negligence allegations that appellant failed to maintain her vehicle in a safe operating condition and failed to attach the dual wheels to the truck in such manner to keep the hub and wheels from separating from the truck. There was a dispute in the evidence with reference to the presence or absence óf a lock washer required to keep the wheels attached to the truck. However, the trial court submitted the issues to the jury only upon A.M.I. 305, duty to use ordinary care, and A.M.I. 610, res ipsa loquitur. For reversal of a verdict and judgment in favor of Mr. and Mrs. Markley, appellant raises the issues hereinafter discussed.
POINT I. In contending that the trial court erred in giving the res ipsa loquitur instruction, appellant principally relies upon Ford Motor Company v. Fish, 232 Ark. 270, 335 S.W. 2d 713 (1960). In that case Fish, a game warden, was driving a new Ford pickup which allegedly left the highway and caused personal injuries because a defective brake grabbed the right front wheel. Upon proof that the brake mechanism was bolted together at Ford’s factory and that it had not been tampered with, the trial court there submitted the issues to the jury on a res ipsa loquitur instruction. We there held the instruction erroneous, but in doing so we neither added to nor qualified the res ipsa loquitur doctrine.
When we remember that the res ipsa loquitur doctrine is based in part upon the theory that the defendant either knows the cause of the accident or has the better opportunity of ascertaining it, it can be readily seen that the case of Ford Motor Company v. Fish, supra, does not support appellant’s position. We there pointed out not only that Fish had not made the necessary showing that he was not also negligent, since he was operating and in possession of the automobile at the time of the injury, but that since the average auto repairman could determine the exact nature of the malfunction of the brake mechanism by merely removing some bolts, the cause of the malfunction could be as easily determined by Fish as by Ford Motor Company. That decision was in accord with the authorities generally which state that if the plaintiff has equal or superior means of information, the doctrine will not apply. See Annotation 46 A.L.R. 2d 110.
In the case before us, Mr. Markley is not in a position to have equal or superior means of information as to the cause of the wheel becoming detached. Even if we assume that the proof shows that the lock washer had been left off the wheel and that caused the wheel to become detached from the truck, that in itself would not establish negligence on the part of appellant. Still the appellant had the better opportunity to have access to all the information as to why her driver did not discover the loosened wheel before it became detached; who placed the wheel on the truck in the first place; whether she had caused proper inspection to be made to see if the wheel was properly secured for operation on the highways; and who could have assembled the wheels without the lock washer being in place. Of course the appellant here furnished proof to the effect that the lock washer was not missing, and, under these circumstances, what we said in Moon Distributors v. White, 245 Ark. 627, 434 S.W. 2d 56 (1968), in quoting from Cassady v. Old Colony Street R. Co., 184 Mass. 156, 68 N.E. 10, 63 L.R.A. 285 (1903), is most appropriate, to-wit:
“It is true that, where the evidence shows the precise cause of the accident . . . there is, of course no room for the application of the doctrine of presumption. The real cause being shown, there is no occasion to inquire as to what the presumption would have been as to it if it had not been shown. But if, at the close of the evidence, the cause does not clearly appear, or if there is a dispute as to what it is, then it is open to the plaintiff to argue upon the whole evidence, and the jury are justified in relying upon presumptions, unless they are satisfied that the cause has been shown to be inconsistent with it. An unsuccessful attempt to prove by direct evidence the precise cause does not estop the plaintiff from relying upon the presumption applicable to it.”
When the facts are here analyzed, we must conclude that the trial court did not err in giving the res ipsa lo-quitur instruction. The annotator in 46 A.L.R. 2d 110 points out that a great majority of the courts from other jurisdictions hold that res ipsa loquitur is proper in the case of a detached wheel.
POINT II. Having determined that the case was properly submitted upon the res ipsa loquitur issue, it follows, without further discussion, that the trial court did not err in refusing a directed verdict.
POINT III. Appellant contends that the trial court erred in allowing appellees on direct to read from the deposition of J. C. McDaniel on the theory he was a “managing agent.” Different authorities are cited both by appellant and appellees to support .heir respective contentions that McDaniel was or was not a managing agent within the provisions of Ark. Stat. Ann. § 28-348(d)(2) (Repl. 1962). We need not here determine whether Mr. McDaniel was a “managing agent” for he later took the witness stand and testified to the same facts developed in the deposition. Consequently, the record demonstrates that reading of the deposition was not prejudicial.
POINT IV. Appellant asked the court, in accordance with A.M.I. 603, to instruct the jury that “the fact that an injury occurred is not, of itself, evidence of negligence on the part of anyone.” The court declined to give the instruction apparently on the basis that it to some extent conflicted with the res ipsa loquitur instruction which permitted the jury to draw an inference of negligence “from the manner in which the alleged injury occurred.”
The drafters of the Arkansas Model Jury Instructions recognized that A.M.I. 603 is inappropriate when Ark. Stat. Ann. § 75-623(c) is applicable. That statute provides: “. . . that if such driver is involved in a collision with a pedestrian in a crosswalk or a vehicle in the intersection after driving past a yield sign without stopping, such collision shall be deemed prima facie evidence of his failure to yield the right-of-way.” We can see little difference between the prima facie case raised by the statute and that involved in the detachment of a wheel from a moving vehicle upon a highway. Consequently, where, as here, the case is submitted to the jury only upon the issues of res ipsa loquitur and ordinary care (as distinguished from specific grounds of negligence such as speed and control), we cannot say that in view of the other instructions, the trial court committed prejudicial error in declining to give the instruction.
POINT V. Appellant also contends that the trial court erred in refusing to give her requested instructions Nos. 1 and 2 which stated:
“1. In connection with the alleged negligence of Lambert Seed Company, Lambert Seed Company is not liable for hidden or latent defects in their trucking equipment which were not or could not have been discovered by ordinary care and ordinary maintenance. If you find from a preponderance of the evidence that the defect which caused the wheel to become dislodged from the Lambert truck was a latent defect, or one which could not have been discovered by ordinary care and ordinary maintenance, then you are instructed the Lambert Seed Company is not guilty of negligence which was proximate cause of the accident.
2. Lambert Seed Company, as the owner of a motor vehicle, is not liable for injuries resulting from the defective condition of their motor vehicle in the absence of negligence on their part. Lambert Seed Company was required to exercise reasonable care to see that their vehicle was in proper operating condition and must have exercised reasonable care in the inspection of their vehicle to discover any defects that might have prevented proper operation. If you find from a preponderance of the evidence that Lambert Seed Company and its agents or employees could not have discovered the defect which was to cause the wheel from becoming detached by reasonable care and inspection of the vehicle, then Lambert Seed Company is not guilty of any negligence which was a proximate cause of the occurrence.”
The Committee in its introduction to the Arkansas Model Jury Instructions points out the guides that it used in drafting the instructions therein contained. One of those guides is that an instruction must be unslanted. In the per curiam order of April 19, 1965, we pointed out that:
“. . . Whenever A.M.I. does not contain an instruction on a subject upon which the trial judge determines that the jury should be instructed, or when an A.M.I. instruction cannot be modified to submit the issue, the instruction on that subject should be simple, brief, impartial, and free from argument.”
In commenting on what is impartial and unslanted the Committee said:
“To be unslanted the instructions must be an objective statement of the law. They are to be the court’s instructions and not partisian instructions sounding first like the plaintiff’s counsel and then like defense counsel. ...”
Even a casual reading of the two instructions offered by appellant demonstrates that they are slanted toward the defendant. For this reason the trial court properly refused the instructions.
Affirmed.
Harris, C.J., not participating.
Fogleman, J., dissents.
This axle sometimes referred to as a tandem axle permits the truck to haul a greater weight under the State’s truck licensing laws. | [
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J. Fred Jones, Justice.
Billy Joe Robinson was convicted at a jury trial for selling cocaine and sentenced to 20 years in the penitentiary. Detective Bob Anderson purchased the cocaine from Robinson and his testimony at the trial resulted in Robinson’s conviction. On appeal to this court Robinson contends as follows:
“The court erred in ruling that the officer could testify that he made purchases on prior visits to defendant’s home before defendant completed his examination of the officer.”
We find no merit to this contention on the record now before us.
The felony information charged Robinson with the crime of violating the Arkansas Uniform Controlled Sub stances Act by unlawfully delivering a controlled substance to wit: Cocaine, against the peace and dignity of the State of Arkansas. Robinson entered a plea of not guilty. Bob Anderson, a detective in the narcotics division of the Little Rock Police Department, testified on direct examination that on January 18, 1973, he went to the appellant’s apartment and there purchased a quantity of substance he believed to be cocaine from Billy Joe Robinson. He said he had been to the same address before, but that on January 18, he arrived at the address at approximately 8:15 p.m., knocked on the door and was admitted by Robinson. He said another male individual, whom he did not know, was in the apartment with Robinson at that time. He said he asked Robinson if he had any cocaine to sell and that Robinson answered in the affirmative and inquired as to how much he wanted. He said he told Robinson he wanted a $50 spoon of cocaine, whereupon, Robinson left the living room but returned within a few minutes and handed him the substance wrapped in aluminum foil. He said he stepped into the kitchen and examined the substance under a better light and that the substance appeared to be cocaine. He said he paid Robinson $50 for the substance and left the apartment. He said he drove directly to the narcotics division of the police department and that the substance he purchased was positively identified as cocaine.
On cross-examination Detective Anderson testified that he first met Robinson in the latter part of 1972 at Robinson’s apartment. The defense attorney then inquired as to whether anyone accompanied the officer when he first went to Robinson’s apartment and met him. The state’s attorney objected to the relevancy of the testimony as to who accompanied Detective Anderson and the record then appears as follows:
“THE COURT: What’s the purpose of this testimony, Mr. Hall?
MR. HALL: If the Court please, I want to show that he has been to see this defendant several times before at different places and it has been kept on until the date of this arrest; that he induced and entrapped him to get him some. He has been asking to get him some drugs for some period of time.
THE COURT: All right, go ahead.”
And, at this point, the state’s attorney requested an in-chambers hearing which was granted.
At the in-chambers hearing the state’s attorney stated that the state took the position there was no issue of entrapment involved in the case, but that the defendant was raising the issue of entrapment making an in-chambers hearing necessary to “determine whether or not to proceed in that area and it is up to the Court to determine whether a prima facie case of entrapment is established before it goes to the jury.”
The trial judge inquired as to what was going to be the problem with the testimony and pointed out that the witness had only been asked when he had previously gone to the residence of the defendant. The state’s attorney pointed out to the court that the defendant had subpoenaed a witness under the alias name “G. Blue”; that the defense attorney had raised the issue of entrapment and he anticipated the defense witness, G. Blue, would testify he introduced Officer Anderson to Robinson several months prior to January 18, in an effort to trap Robinson into selling or delivering cocaine. The state’s attorney argued in chambers, that from the preliminary questions directed to Officer Anderson on cross-examination, the defense was laying a foundation for the introduction of G. Blue’s testimony bearing on entrapment, and that the state was entided to an in-chambers hearing to determine whether or not entrapment was a valid issue. The trial court then ruled as follows:
“Well, let’s have it then. I don’t think he has raised it yet but let’s have it anyway.”
Whereupon, in chambers, Officer Anderson testified under questioning by the state’s attorney, that in December, 1972, he received information that Robinson was engaged in the business of selling and dealing in narcotics. He said that the very first time he ever went to Robinson’s apartment, G. Blue took him there, and that was the only time G. Blue ever went with him to the Robinson apartment. He said that after he was introduced to Robinson by G. Blue, that Robinson took him to a small utility room off the kitchen in the apartment where he purchased from Robinson a bag of green vegetable material which was later found by chemical analysis to be marijuana. He said he subsequently made two other purchases of marijuana from Robinson. He said that G. Blue had no other connection with the matter except to introduce him to Robinson upon his first contact. At this point the record is as follows:
“THE COURT: Well, just a minute now. What else did G. Blue have to do with your relations?
A. Not a thing.
THE COURT: If he wants to testify to that, well, then, I don’t see why he shouldn’t. If you want him to get up there and say he went in there and bought marijuana three different times from him or whatever he bought from him, well, I will let you do that, Mr. Hall.
MR. HALL: I have a right to ask him when he first went over, how many times he had been there, who was with him. I don’t have to ask him if he bought anything. I asked him how many times he had been there.
THE COURT: Well, now, if you’re going to try to show entrapment, that he went over there to persuade this man to, to sell, then you’re going to have to, you’re going, he’s entitled to state the—
MR. MUNSON: (Interposing) That’s right.
THE COURT: What happened after he got there.
MR. MUNSON: That’s exactly right.
THE COURT: If that’s what you’re going to do. Now, you are not going to do that, it’s ridiculous.
MR. HALL: May I ask the officer a few questions, please?
THE COURT: Go ahead.”
The defense attorney then took Officer Anderson on cross-examination in chambers and Officer Anderson testified he had been to Robinson’s apartment over a half dozen times; that he met Robinson through G. Blue; that when he purchased the cocaine from Robinson, there was one other man present whom he did not know. He described the height, dress and complexion of the other man who was in the apartment but said he was not introduced to him and did not know his name. He said he had seen the defendant at various times on the street as well as in the apartment. At the close of the in-chambers hearing, following the examination of the witness by the defense counsel, the record is as follows:
“THE COURT: Do you have any questions?
MR. MUNSON: No, Your Honor.
THE COURT: Well, so you won’t be surprised, you can ask him any questions you want to. You can do just as much of that as you want.”
It is apparent that the above statement was directed to the state’s attorney and pertained to further questioning at the in-chambers hearing.
Following the in-chambers hearing, the defense attorney continued his questioning of Officer Anderson before the jury. The officer described the automobile he was driving on his trips to see Robinson, and described the other individual in Robinson’s apartment at the time he purchased the cocaine on January 18. He said that the unknown individual was sitting at the kitchen table playing records, and that he did not talk to him or make an inquiry of him concerning drugs. He said that following this purchase on January 18, and as a result of it, Robinson was arrested on February 18.
The state then offered other witnesses who testified as to the identification, analysis and chain of possession of the cocaine offered in evidence. At the close of the state’s case, the appellant moved for a directed verdict of acquittal on the grounds that the state had not shown the amount or weight of the cocaine alleged to have been purchased by Anderson and the motion was overruled.
Willie Charles Keese testified as a witness for the defense. He said he was in Robinson’s apartment on January 18 when Officer Anderson arrived and asked for a spoon of “coke.” He said that when the officer made this request, they (apparently referring to the three of them) were “sitting in the house.” Then, apparendy referring to himself and Robinson, he said:
“We went off in the pantry. Went off in the back pantry back in the back and got some aluminum foil and some aspirins, put them in the aluminum foil and ground them up and gave it to him.”
He said he watched the whole process and was present when Robinson gave Officer Anderson the aluminum foil containing the ground up aspirins. This witness then identified Officer Anderson as the person to whom he saw Robinson sell the ground aspirin.
On cross-examination Keese testified that he lived next door to Robinson; that he had known him for some time; that they are good friends. He said he visited with Robinson and “we rap together all the time.” He said, however, that he did not know very much about Robinson.
“All I know is that he has been a good friend of mine all the time and he, I know he never had any cocaine and he never messes with the stuff.”
He denied that he helped prepare the aspirin he said Robinson delivered to Officer Anderson.
“No, sir, I didn’t help him. I say he ground it up in this paper. I was there watching him.”
At the close of all of the evidence, Robinson’s attorney renewed his motion for directed verdict of acquittal on the ground that the state had not proved any amount that Robinson was supposed to have delivered to the officer, and the motion was again denied.
We are inclined to agree with the trial court that at the time the in-chambers hearing was requested by the state’s attorney and granted by the court, the defense of entrapment had not been raised at that point. We are unable to tell from the record before us what questions would have been propounded to Officer Anderson and what his answers would have been had the defense proceeded with its cross-examination of the officer without the hearing in chambers, but we are also unable to see how the appellant could have been prejudiced in connection with the in-chambers proceedings.
The appellant argues in his brief that the state was anticipating that he was going to call a witness in an effort to prove entrapement which he did not do, and that the state’s objection and request for an in-chambers hearing was premature as the defendant had not begun to develop a case of entrapment. We are inclined to agree with the appellant that the state’s objection and the court’s ruling were premature, but we are unable to follow the appellant’s reasoning in arguing that this premature objection and ruling in chambers were prejudicial to the appellant’s rights in this case. We agree with the appellant’s statement taken from 21 Am. Jur. 2d, Criminal Law, § 143:
“‘Entrapment is an affirmative' or positive defense, and one that defendant must prove.’”
But, the appellant in his brief, argues as follows:
“The appellant understands that the State may offer evidence of other offenses in order to rebut a defense of entrapment but in the case at bar, the trial court ruled on cross-examination of the first witness by the State that the State’s witness could testify that he bought marijuana on three different times from the appellant before he ever had a chance to develop a defense of entrapment. This premature ruling by the trial court was prejudicial to the appellant because if he asked certain questions of the officer, the officer could then relate to the jury other purchases of controlled substances from the appellant before the question of entrapment could properly be raised and testimony received. If the appellant failed in his effort to prove entrapment, the State would have this damaging testimony before the jury' even though the defense of entrapment was not successful and the appellant failed to take the witness stand and testify.”
As we interpret the entire proceedings in chambers, it simply amounted to the court recognizing the right of the state to elicit from Officer Anderson’s testimony that he had purchased marijuana on three occasions from the appellant in the event the appellant proceeded in developing a defense of entrapment. It would appear that the information elicited at the in-chambers hearing should have been as beneficial to the appellant as to the state and amounted to no more than a pronouncement of the law as the appellant’s attorney says he already understands it to be, “that the State may offer evidence of other offenses in order to rebut a defense of entrapment.”
We do not interpret the court’s ruling as indicating the defense attorney would lose control of the questions he could propound to the witness on cross-examination or require him to elicit from the witness other evidence not responsive to the questions he would ask. There is nothing in the record to indicate that the defendant’s attorney could not, and would not, have conducted his examination of Officer Anderson before the jury exactly as he did conduct the examination. It would appear from the record that the admissibility of evidence was not so much the question involved as was the question of procedure and timing of evidence to be offered, but which was never actually offered.
The appellant seems to recognize the rule as stated in 33 A.L.R. 2d 883, where under an annotation per taining to entrapment to commit offense with respect to narcotics law, § 6 states:
“When entrapment is interposed as a defense, the predisposition and criminal design of defendant become relevant, and the government may introduce evidence relating to the conduct and predisposition of the defendant as it bears upon the issue of entrapment, its tendency being to show that the law enforcement officers were acting in good faith and in the belief based upon reasonable information that accused was engaged in unlawful traffic in connection with the narcotics law.”
This annotation cites the 1926 case of United States v. Siegel, 16 F. 2d 134, where the court said:
“‘That the government, prior to the question of entrapment having been raised, could not introduce any evidence of complaints having been made to the officers, but that, when the issue of entrapment was raised, then it could show what grounds of suspicion they had.’”
The appellant indicates in his argument that by the ruling of the court in chambers he was forced to abandon his planned defense of entrapment in order to prevent the jury from learning that the appellant was also engaged in the sale and distribution of marijuana. We are unable to understand how the appellant would have been able to avoid this hazard had he proceeded with a defense of entrapment, so it would appear that prior knowledge of the full measure of such hazard should have been to his advantage. Certainly the defense that the appellant did rely on was not consistent with a defense of entrapment. Of course, the law is well settled in Arkansas that in certain cases similar acts or offenses can be shown as tending to show a system, design and guilty knowledge in connection with the offense for which the defendant is being tried. Caton & Headley v. State, 252 Ark. 420, 479 S.W. 2d 537; Dail v. State, 255 Ark. 836, 502 S.W. 2d 456; Alford v. State, 223 Ark. 330, 266 S.W. 2d 804.
A defense of entrapment was entirely inconsistent with the defense actually relied on before the jury in this case. The defendant was being tried for selling and delivering cocaine. The defendant pleaded not guilty and the only evidence he offered was that of his neighbor and close friend, Keese, who testified that he was present at all times when the purchase was made; that he watched Robinson prepare the material he delivered to Officer Anderson; that Robinson did not deliver cocaine; that "he never had any cocaine and he never messes with the stuff.” Keese testified positively, following a reminder of the laws against perjury, that the material he saw Robinson prepare and deliver to Anderson was simply aspirin.
Where sale or delivery of controlled substances or contraband is involved, the sale or delivery of the alleged substances is ordinarily presupposed when the defense of entrapment is interposed. In Brown v. State, 248 Ark. 561, 453 S.W. 2d 50, the defense of entrapment was interposed in a marijuana case. We upheld the trial court in holding that the defense of entrapment was not available, and in that case we said:
"Appellant denied having any connection with, or knowledge of, the marijuana. In that situation he was not entitled to the defense of entrapment. The question was raised in Rodriguez v. United States, 227 F. 2d 912 (1955), and the court said:
‘Moreover, in refusing to charge the jury on entrapment, the court stated that the defense was not available where, as in this case, the defendant denies the very acts upon which the prosecution and the defense are necessarily predicated. It is true that this defense may be raised even though the defendant pleads not guilty, but it ‘assumes that the act charged was committed,’ and where the defendant insists, as she did here, that she did not commit the acts charged, one of the bases of the defense is absent. On this ground and for other reasons mentioned, the district court was not in error in refusing the appellant’s motion or requested charge on entrapment.’”
See also 61 A.L.R. 2d p. 677 and 21 Am. Jur. 2d § 144, p. 214.
It is true that the appellant himself simply pleaded not guilty and did not specifically deny that he delivered cocaine to Officer Anderson, but his only witness Mr. Keese testified that the substance actually delivered was aspirin and not cocaine. A similar situation arose in the Texas case of Stone v. State, 171 S.W. 2d 364, in which the defense of entrapment was argued on motion for rehearing and although the court found no evidence of entrapment, it stated:
“While appellant did not testify, he had witnesses who denied the sale at the time alleged and raised the issue of an alibi as his chief defense.”
See also the Missouri case of State v. Varnon, 174 S.W. 2d 146, involving the illegal sale of intoxicating liquor where the defense of entrapment was interposed. The appellant in that case contended that his instruction on entrapment should have been given and while the court found there was no evidence upon which to base such instruction, the court said:
“Appellant denied making any sale of intoxicating liquor. This is not consistent with the defense of entrapment.”
The judgment is affirmed.
Harris, C.J., not participating. | [
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George Rose Smith, Justice.
This is a claim for death benefits under the workmen’s compensation law. The decedent, John Doyle Stokes, was employed by the appellee Richland Homes Manufacturing Company at the time of his death in a traffic accident in 1971. The commission, whose decision was upheld by the circuit court, denied compensation on the ground that Stokes’ death did not occur in the course of his employment. Whether that finding is sustained by substantial evidence is the question on appeal.
Richland manufactures, sells, and delivers mobile homes. Stokes was one of Richland’s three regular drivers, who were employed to drive Richland’s trucks in the delivery of mobile homes. The drivers were paid a minimum weekly wage, plus from 16 to 21 cents a mile for delivering the mobile homes.
Highway regulations, as they are pertinent to this case, required that a truck pulling a mobile home be accompanied by two specially equipped escort vehicles, one ahead of the truck and the other behind it. Richland did. not own any escort vehicles or directly employ any escort drivers. Instead, Richland required its truckdrivers to, arrange for their escorts. Richland did, however, pay its drivers an extra 30 cents a mile to enable the drivers in turn to pay the escorts.
: When the drivers reported for work at Richland’s plant in Manila on the morning of July 27, 1971,Rich-land had a delivery for one of its drivers, Tommy Horton, but did not have a delivery for Stokes. That meknt that Stokes was free to do anything he liked for the rest of the day. Stokes agreed to act as one of Horton’s escorts, driving an escort truck owned, by Horton. Stokes and Horton had escorted each other in the past, swapping their services rather than making payments to one another. Richland knew that its drivers worked as escorts when off duty and had no objection to that' practice; . ,
The other escort that day was W.H. Wallace, who drove his own vehicle, Stokes drove Horton’s escort truck and was accompanied by a friend, Melyin Girdley, wh<j> went along for the swimming and water skiing that the ¡men planned for later in the day.
| The caravan of three vehicles proceeded' from Manila to Hebér Springs, where the mobile home Was delivered to Richland’s consignee. On the way the group were stopped by a Commerce Commission agent, and Stokes rewired some lights on the mobile home. Stokes bought a case of beer during the trip.
jThe mobile home was delivered at about 3:00 p.m. The escort drivers then had no further responsibilities ánd¡ were at liberty to gq their own way. The four men actually went to Greers Ferry Lake and swam, skied, and drank beer until about 8:00 p.m. When they started back to Manila, Horton drove the Richland truck, with. Girdley as his passenger; Wallace drove his. car; and Stokes drove' Horton’s escort truck.
The party met again at Newport to get something to eat. Horton thought that*Stokes had had enough to drink. When the group left Newport, Stokes was riding as a passenger in the Richland truck with Horton, and Girdley was driving Horton’s smaller truck. On the way Horton dozed off and ran off the -road, the Richland truck overturned, and Stokes was killed.
Counsel for the claimants argue that Stokes’ death occurred either in the course of his regular employment by Richland or in the course of his special employment as an escort driver. We hold that there is substantial evidence to support the commission’s finding that Stokes’ death did not take place in the course of his employment in either capacity.
We first consider Stokes’ status as a special employee. Stokes had no responsibilities as an escort driver after the mobile home -was delivered to its consignee. We may assume, without so deciding, that if Stokes had been injured or killed while driving Horton’s escort truck back to Manila, the commission might have found the occurrence to have been within the course of Stokes’ special employment. But that did not happen. Stokes had been replaced by Girdley as the driver of the escort vehicle. If Horton had the authority to bind Richland by employing Stókes as an escort, then Horton necessarily had the correlative authority to replace Stokes when that action became advisable. Girdley then became the special employee. To hold that Stokes was still a special employee while riding as a passenger with Horton would mean that Richland and its insurance carrier were responsible for a total of three escort drivers at the same time, although no such situation was ever contemplated by anyone.
There remains Stokes’ status as a regular employee. The difficulty here is that Stokes did not undertake the trip in his capacity as a regular employee and was not performing any services as such at the time of the fatal accident. It is undisputed that on the day in question Stokes had no duties as a regular Richland driver after he was told in the morning that the employer had no delivery for him that day. Counsel argue, however, that. Stokes resumed his status as a regular employee when he got in the company truck to ride back to his home in Manila with Horton, because he had to report for' work at Manila the next morning. Richland, however, had no duty to provide Stokes with return, transportation to Manila in the circumstances of this case. To the contrary, in the normal course of events there would have been three drivers on the road with three véhicles, so that Stokes would not have had any occasion to ride with Horton as a passenger. He certainly was performing no duties for Richland. Larson points out that “an isolated and unauthorized ride in the employer’s conveyance has usually been held to be outside the course of employment.” Larson, Workmen’s Compensation, § 17.30 (1972). We cannot say that the commission was without any substantial basis in the proof in concluding that Stokes was not serving Richland in his capacity as a truckdriver at the time of his death.
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Donald L. Corbin, Justice.
Appellant, Brenda Furman, Inmate Records Supervisor, Maximum Security Unit, Arkansas Department of Correction, appeals the order of the Pulaski County Circuit Court ordering appellant to produce appellee’s, Harold B. Holloway’s, inmate file for his inspection. This order was stayed pending determination of this appeal. We have jurisdiction of this appeal because it requires the interpretation of the Arkansas Freedom of Information Act (FOIA), Ark. Code Ann. §§ 25-19-101 to -107 (Repl. 1992), and Ark. Code Ann. § 12-27-113(e) (Supp. 1991). While appellant recognizes a court of competent jurisdiction can order disclosure of an inmate’s records, appellant contends the inmate must establish a “particularized need” for the information requested. The trial court determined there was no such requirement. We affirm.
While this court is not bound by the decision of the circuit court, in the absence of a showing that the trial court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Bryant v. Mars, 309 Ark. 480, 830 S.W.2d 869 (1992). The Arkansas Freedom of Information Act provides in pertinent part:
Except as otherwise specifically provided by this section or by laws specifically enacted to provide otherwise, all public records 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.
Ark. Code Ann. § 25-19-105(a).
“Public records” means writings, recorded sounds, films, tapes, or data compilations in any form, required by law to be kept or otherwise kept, and which constitute a record of the performance or lack of performance of official functions which are or should be carried out by a public official or employee, a governmental agency, or any other agency wholly or partially supported by public funds or expending public funds. All records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records.
Ark. Code Ann. § 25-19-103(1).
The records requested by Mr. Holloway are required to be kept by the director of the Department of Correction by section 12-27-113(e) which provides:
(e) The director shall make and preserve a full and complete record of each and every person committed to the department, along with a photograph of the person and data pertaining to his trial conviction and past history.
(1) To protect the integrity of those records and to insure their proper use, it shall be unlawful to permit inspection of or disclose information contained in those records or to copy or issue a copy of all or part of any record to any person so committed except as authorized by administrative regulation or by order of a court of competent jurisdiction. The regulations shall provide for adequate standards of security and confidentiality of records.
(2) Administrative regulation may authorize the disclosure of information contained in such records for research purposes.
Mr. Holloway requested that he be allowed to inspect his inmate file or be provided copies of his inmate file on December 23,1991. This request was denied by Ms. Furman on January 2,1992. On January 6, 1992, Mr. Holloway again requested that he be allowed to examine his inmate file. Mr. Holloway received no response to his second request. As a result, Mr. Holloway filed a complaint in the Pulaski County Circuit Court asking the circuit court to order the records be made available to him as provided for in section 25-19-107 which provides in pertinent part:
Any citizen denied the rights granted to him by this chapter may appeal immediately from the denial to the Pulaski County Circuit Court or to the circuit court of the residence of the aggrieved party, if an agency of the state is involved, or to any of the circuit courts of the appropriate judicial districts when an agency of a county, municipality, township, or school district, or a private organization supported by or expending public funds, is involved.
The trial court ordered that Mr. Holloway be allowed to inspect his inmate file in the presence of a Department of Correction personnel within a reasonable time after a request, made in writing. The order further provided that only one inspection per six (6) month period would be allowed and the Department of Correction was authorized to remove from Mr. Holloway’s file any documents it deems to be of a sensitive or confidential nature and which would cause great harm to third persons if disclosed to Mr. Holloway or any other member of the public.
Appellant contends the trial court erred by not requiring Mr. Holloway to show a “particularized need” for the information contained in his inmate file before ordering disclosure. Appellant contends Ark. Code Ann. § 12-27-113(e), Arkansas Department of Correction Administrative Regulation 804(V), and Arkansas Department of Correction Directive 90-16 disallow access to inmate’s records. Regulation 804(V) provides:
POLICY: It shall be unlawful to permit inspection of or to disclose information contained in inmate records or to copy or issue a copy of all or part of any record to any person so committed except as authorized by Administrative Regulation or by order of a court of competent jurisdiction.
Information is not exempt from our FOIA unless specifically exempted under the FOIA or some other statute. Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992). Section 12-27-113(e)(1) disallows access of an inmate to his records unless allowed by administrative regulation or by order of a court of competent jurisdiction. Section V of Regulation 804 provides that an inmate be allowed access to his records if provided for by Administrative Regulation or by order of a court of competent jurisdiction. Section VI of Regulation 804 provides in pertinent part:
PROCEDURES:
3. Pursuant to the Arkansas Freedom of Information Act, as amended, public information will be released upon appropriate requests for information.
4. At no time shall copies of the inmate record be given to the inmate unless authorized by a representative of the Attorney General’s Office or as otherwise stated in this regulation.
Arkansas Department of Correction Directive 90-16, which is not binding because it is not an Administrative Regulation, provides in pertinent part:
PROCEDURE:
D. Privacy of Institutional Files
To protect the integrity of the data contained in the institutional files and to ensure its proper use it is unlawful to permit inspection of or disclose information contained in those records or to copy or issue a copy of all or part of any record to any person so committed except by Court Order or as authorized by Administrative Regulation.
Clearly the records appellee requests are “public records” under our FOIA since they are required to be kept by law. Ark. Code. Ann. § 25-19-103(1). Section 12-27-113(e) provides that disclosure of inmate records is only permissible when authorized by administrative regulation or by order of a court of competent jurisdiction. Disclosure of inmate records to inmates is permitted under Administrative Regulation 804 when authorized by a representative of the Attorney General’s Office, pursuant to an appropriate request under the Arkansas FOIA, or by order of a court of competent jurisdiction. Arkansas Department of Correction Administrative Regulation 804. Appellee made an appropriate request under the Arkansas FOIA. Therefore, the trial court correctly determined that appellee should be allowed access to his inmate file. Additionally, disclosure is specifically permitted pursuant to court order, which was obtained by Mr. Holloway.
Appellant cites Bradley v. Fairfax, 634 F.2d 1126 (8th Cir. 1980) and Thomas v. United States, 597 F.2d 656 (8th Cir. 1979), for the proposition that appellee must show a particularized need to gain access to his inmate file. These cases are inapplicable. Thomas involved an attempt to obtain grand jury materials, which are specifically exempted from the Federal Freedom of Information Act. In Thomas, the court held that since the requester was not entitled to the grand jury materials under the Federal FOIA or by a statute, a “particularized need” must be shown for the materials. Absent a “particularized need,” the court declined to order disclosure. The language appellant cites from Bradley also refers to grand jury materials and is inapplicable.
The materials Mr. Holloway has requested are exempted from our FOIA by statute, but there is a method for obtaining those records contained in the statute, which does not require a showing of “particularized need.” Therefore, as did the trial court, we find no requirement for appellee to show a “particularized need” before he can inspect his inmate file. We do note, however, that the restrictions imposed by the circuit court’s order are permissible under the statute and we find them to be reasonable.
Appellant also argues appellee must show a violation of due process in order to have a right to examine his inmate file. Since this argument was not raised below, we will not consider it on appeal. We do not consider arguments raised for the first time on appeal. Dwiggins v. Propst Helicopters, Inc., 310 Ark. 62, 832 S.W.2d 840 (1992). Finally, appellant argues appellee should be required to show a compelling need before being allowed to inspect his inmate file. Since this argument was also not raised below, we will not address it. Id.
The applicable statutes and regulations set out above allow appellee to examine his inmate file upon order of a court of competent jurisdiction. There is no requirement that the inmate show a “particularized need” for the records. The Pulaski County Circuit Court, a court of competent jurisdiction, has ordered appellee be allowed to examine his inmate file. Therefore, appellee is entitled to inspect his inmate file subject to the limitations imposed by the trial court’s order.
Affirmed.
Hays, J., dissents. | [
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Darrell Hickman, Justice.
This appeal, from a denial of Rule 37 relief, is affirmed because of a complete failure to abstract the record. Bryant v. Lockhart, 288 Ark. 302, 705 S.W.2d 9 (1986). It also involves an untimely petition filed beyond the three year limit, A.R.Cr.P. Rule 37.2(c), and it is a second petition for postconviction relief. Collins v. State, 280 Ark. 312, 657 S.W.2d 546 (1983).
Affirmed. | [
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J. Fred Jones, Justice.
This is an appeal by Era Seales from a chancery court decree establishing a boundary line between her property and that of Eugene Duckett and wife.
Mrs. Seales and her deceased husband acquired approximately five acres of land by metes and bounds description in 1935. Their deed is not in the record but the south 205 feet of the tract apparently extended east to the county road and was bounded on the east by a county road and on the south by a state highway. The south end of the tract measured 390 feet. Mr. and Mrs. Seales sold approximately one-third of an acre by metes and bounds description, from the southeast corner of the tract, and a store building was built thereon. The deed description of this one-third acre started at the same point where the description in the Seales’ deed started, which was the southeast corner of the Seales’ tract and recites as follows:
Run thence west 80 feet, thence north 65 feet, thence west 30 feet, thence north 75 feet, thence east 110 feet, thence south 140 feet to the point of beginning.
The evidence is uncontradicted, that in laying out this one-third acre tract, Mr. and Mrs. Seales and their grantees first measured the north 110 foot boundary line by beginning at its east end in the center of the county road. The store building was erected on the south 65 feet of this irregularly shaped plot and was located within the area measuring 65 feet north and south and 80 feet east and west. The Seales home is located on the south portion of the acreage they retained and is west of the store building located on the one-third acre they sold. The one-third acre with the store building thereon changed hands by mesne conveyance several times after Mr. and Mrs. Seales first sold it to a relative in 1951. Mr. and Mrs. Duckett first acquired title to the the property in 1967. They sold it in 1970 and reacquired it later that year under the same legal description as follows:
Part of the E H of the SW M of the NE U of Section 15, Township 5 South, Range 28 West beginning at the SE corner of said forty acres and run 270 feet West, thence North 318 feet to point of beginning, thence West 80 feet, thence North 65 feet, thence West 30 feet, thence North 75 feet, thence East 110 feet, thence South 140 feet to point of beginning containing one-third acre, more or less.
The Ducketts tore down the old store building on the property and erected a new combination grocery store and gas station building thereon. Mrs. Seales filed the present suit against the Ducketts alleging that the north and south line between her property and that of the Ducketts was seven feet west of the old store and station building and that the Ducketts, in constructing their new building, had encroached on her property. She alleged that from 1951 until 1967 when the Ducketts first purchased the property, the dividing line betweeri the two parcels of land had been agreed upon, considered and accepted by all parties concerned, as running seven feet west of the old store building, and that she had exercised continuous adverse possession of the property west of such division line. She alleged that within the past two years the Ducketts had torn down the old building and station and had erected a new building and station at least three feet west of said division line and on her property. She prayed for an injunction against the Ducketts from using any of the property west of the new station and grocery store.
The Ducketts denied that their building or improvements encroached on Mrs. Seales’ land and denied the. existence of a mutual ageement as to the west boundary line. They admitted they had constructed a new building on the site of the old building but denied they had been using any part of Mrs. Seales’ land. The Ducketts alleged affirmatively that in August, 1970, Mrs. Seales executed an affidavit of adverse possession regarding the lands in question in which she stated that the Ducketts, and those under whom they held, had had actual and undisputed possession of the lands described in the deed for more than 30 years, and they argued that Mrs. Seales was es-topped to deny their possession.
The chancellor found that upon the north portion, the 75x110 foot portion of the tract involved, a home was built over 20 years ago and a fence was erected on the 75 foot west boundary line by the owners, and that this fence was agreed by the owners as being on the west boundary line of this portion of the tract. The chancellor also found that a fence had been built from the southwest corner of this portion of the tract for a distance of 30 feet east to the northwest corner of the south portion, or the 65x80 foot portion of the tract, and that this constituted the boundary line. The chancellor found that there was much evidence that the west or 65 foot boundary line of the south, or 65x80 foot portion of the tract, was seven feet west of the west wall of the old store building by agreement of the parties concerned, but no fence or other monuments had ever been erected along this line.
The chancellor found that Duckett tore down the old store building and built a new one with its west line being four feet further west than the west wall of the old building. The chancellor observed in his findings that Duckett testified that he claimed 15 to 20 feet west of the old store building but that Duckett’s wife agreed that Mrs. Seales had always gathered the pecans from the pecan trees in this area. The court then found the true western boundary line immediately west of the old store building to commence at an old corner post 30 feet east of the southwest corner of the north 75x110 foot portion of the tract, and to run south seven feet from the old store building. The chancellor found that Mrs. Seales had established a right to the property west of this line by adverse possession. As to the “lower part of the 65 feet,” the chancellor found from Duckett’s testimony that he built a new store four feet further west than the old one and that he claimed 15 to 20 feet west of the old store. The chancellor then found the proper division line to this area to be 11 feet west of the new store’s west edge.
The chancellor’s findings are not dear to us for the reason that the plat offered in evidence as plaintiff’s exhibit No. 1 and from which all parties testified, simply shows the metes and bounds description as above set out but does not indicate where either the old or new store building is located on the south 65x80 foot portion of the tract. In any event, the chancellor amended his original decree and fixed a boundary line as follows:
“Commence at the northwest fence corner of the Duck-ett property and run south along the existing fence 75 feet; thence run east to within one foot of the west wall of the new store; thence south to a point one foot west of the southwest corner of the ice house at the southwest corner of the new store; thence west 20 feet; thence south to the State Highway.”
Mrs. Seales testified that the true boundary line was seven feet west of the old store building and when the Ducketts rebuilt the store building and gas station, the structure was built three feet west of the true boundary line and on her property and in doing so they ruined one of her pecan trees. She said, however, that she never did mention the matter to Mr. and Mrs. Duckett during the course of construcdon. All the owners of the one-third acre tract prior to the Ducketts, testified that the west boundary line of the south portion of the property was seven feet west of the old store building. Mr. Oscar Young, who first sold the property to the Ducketts in 1967, said he told Duckett that the boundary line ran seven feet west of the store building. This was denied by Duckett. The appellant has assisted us considerably on trial de novo because she does not question the chancellor’s decree in its entirety but states the issue in her argument as follows:
“The sole issue contested is the line drawn from a point ‘1 foot West of the Southwest corner of the ice house at the Southwest corner of the new store; thence West 20 feet; thence South to the State Highway.’ ”
The appellant then argues that there is no evidence to support this erratic change in direction of the boundary line and we are forced to the conclusion that the appellant is right in this contention. A survey was attempted in an effort to locate the boundary line of the property involved but admittedly the survey was of no probative value.
The Ducketts contend that the problem arose by reason of the Sealeses laying out the boundaries of the one-third acre from the center of the county road on the east side of the property rather than from the west side of the road as called for in the deed description, and they contend that Mrs. Seales’ affidavit of adverse possession above referred to, estops her from contending otherwise. Mrs. Seales as well as Mr. Turner, who owned the property at the time, and for whose benefit the affidavit was made, testified that Mrs. Seales stated at the time she made the affidavit that the west boundary line of the one-third acre tract ran seven feet west of the old store building. The affidavit simply referred to the deed description of the property and we conclude that the chancellor did not err in holding it did not work an estoppel under the evidence in this case.
From the record before us it would appear that the west line of the 65x80 foot south portion of the tract ran within seven feet of the old store building that had been on the property, and that the new building was built with its west wall extending to some extent west of this boundary line. It is apparent from the record that Mrs. Seales acquiesced, or at least she did not object, to the Ducketts building their building with its west wall extending onto her property and, as a matter of fact, she does not contend that the building should be removed from the property but seems to acquiesce in accepting the chancellor’s decree that the west line of the 65x80 foot tract should extend within one foot of the new store building. Apparently none of the parties, in preparation of this case for trial, measured the distance from either the center or the west side of the county road to the west wall of the store building, and the record does not show the distance from the southwest corner of the new store building south to the highway.
Apparently the chancellor based that portion of his decree complained of by Mrs. Seales in this case, on adverse use by Duckett and his predecessors in title, but we find no evidence in the record that would sustain this portion of the decree. No one ever questioned Mrs. Seales’ ownership of the property to within seven feet of the west virafl of the old store building until Duckett purchased the property in 1967. Duckett said he built his new building with its west wall extending approximately four feet further west than the old building, but that he claimed and exercised dominion over an area 15 or 20 feet west of the old building. This testimony falls far short of proving adverse possession sufficient to establish title to the area involved. It is admitted by all parties concerned that trucks make deliveries of merchandise to the rear or west end of the store building on the property, but certainly there is no evidence that any one ever claimed title to this area adverse to Mrs. Seales until the claim made by Mr. Duckett after he purchased the property in 1967, well within the past seven years. As a matter of fact Mr. Young, from whom Mr. Duckett first purchased the property, testified that he attempted to purchase the area involved from Mr. Seales; that Mr. Seales refused to sell at any price but permitted him to use the area.
We are of the opinion that the evidence establishes that the old store building was constructed seven feet from the west boundary line of the south 65x80 foot portion of the tract or else that boundary line was established seven feet west of the old store building. Whatever the situation in this regard, it would appear that the true west boundary line should extend its entire length of 65 feet to the south line of the original tract. In any event, we find no evidence in the record that Duckett has acquired title by adverse possession or otherwise to that portion of the property from “1 foot west of the Southwest corner of the ice house at the Southwest corner of the new store; thence West 20 feet; thence South to the State Highway.”
We conclude, therefore, that this case should be remanded to the chancellor for the entry of a decree fixing the boundary lines in a manner not inconsistent with this opinion.
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Carleton Harris, Chief Justice.
Patricia Hall Petti-john, appellant herein, and her former husband, Howard J. Hall, are the parents of two minor children, Wanda Lucille Hall, age 12 years, and James Howard Hall, age 10 years. The Halls were divorced in Clay County, Missouri, in November, 1970, appellant having been awarded the divorce. Two different versions of the custody order contained in the decree are in existence, a purported photostat held by appellant reflecting that she was awarded custody, and Hall having had possession of a purported decree, attested by the Clay County, Missouri Clerk as being signed by the judge, reflecting custody of the children in Mr. Hall. The evidence (at the trial, hereafter discussed) reflects that the children had, from time to time, stayed with both parents, and it is undisputed that at the time of the events hereinafter set out, the children, by common consent of the parents, were living with appellant in her home in Piggott, Arkansas. Wanda had been with her mother since sometime in 1971, and the little boy was brought to appellant by Mr. Hall in November, 1972, Hall remaining in Piggott at that time. Charges were brought by Mrs. Hall against her ex-husband wherein he was charged with grand larceny, it being asserted that he had taken a collection of Avon bottles, said to be of a value of more than $100.00. Hall was arrested and jailed. On December 19, 1972, appellant filed a suit in the Chancery Court at Piggott asking for official custody of the two minor children, and service of summons was personally served on Hall in Clay County, Arkansas by Deputy Sheriff Troy Howell on that same date. The next day, Hall was released from jail on bond and, while appellant was at work at her employment just over the Missouri line, went with Deputy Sheriff Howell in the latter’s car to the home of the grandmother and picked up Jimmy; thereafter, Hall and the deputy sheriff met an automobile in which Wanda was riding, Howell stopping such automobile and Wanda being transferred to the deputy sheriff’s car. The children were taken to the police department where they transferred to Hall’s automobile. Hall then, with the children, drove to the Pettijohn residence, followed by Officer Ralph Cavaness of the Piggott Police Department. Cavaness and Hall waited in the Cavaness car outside the home while the children went into the house to obtain their clothes. An older sister, Reta, came out of the house to talk to her father and Cavaness stated that he told her that she had better go back into the house. The children returned with their clothes, got in the car with their father and he drove them out of the state.
Thereafter, appellant instituted suit against Sheriff Wayne Smith, Deputy Sheriff Howell, and Officer Cavaness, asserting that those persons, acting jointly with Hall, used the authority of their offices to coerce and compel the two minors to leave the home of their mother, against their will, with the intent and purpose of aiding and abetting Hall in removing them from the State of Arkansas “without any process of any nature from any court”. Mrs. Pettijohn sought damages in her own behalf and on behalf of the two minor children, and further sought punitive damages. On trial, the jury returned a verdict for appellees after a request for directed verdict for appellant against the defendants at the close of all the evidence had been denied. From the judgment entered in accordance therewith, appellant brings this appeal. Eight points are asserted for reversal, but inasmuch as we agree with appellant that the motion for a directed verdict should have been granted, there is no necessity to discuss in detail the other points. First, let us determine the authority of an officer in general. Under the provisions of Ark. Stat. Ann. § 43-403 (Repl. 1964), an officer may make an arrest in obedience to a warrant of arrest delivered to him, and may arrest without a warrant where a public offense is committed in his presence, or where he has reasonable grounds for believing that the person arrested has committed a felony. See also Johnson v. State, 100 Ark. 139, 139 S.W. 1117, and Howard v. State, 137 Ark. 111, 208 S. W. 293. Ark. Stat. Ann. § 42-201 (Repl. 1964) authorizes the prevention of public offenses by proceedings for suppressing riots and resistance to lawful authority, for requiring security to keep the peace, or for good behavior, and for arresting and confining insane, drunken, and disorderly persons. Ark. Stat. Ann. § 41-1601 (Repl. 1964) defines false imprisonment as “the unlawful violation of the personal liberty of another, and consists in confinement or detention without sufficient legal authority.” In Watkins v. Oaklawn Jockey Club, 86 F. Supp. 1006, decided by the United States District Court for the Western District of Arkansas, Hot Springs Division, Judge John E. Miller said:
“Every confinement of the person is an imprisonment, and any express or implied threat or force whereby one is deprived of his liberty or compelled to go where he does not wish to go is an imprisonment.”
This was the holding of our court in the early case of Floyd v. State, 12 Ark. 43. In St. Louis I.M. & S. Railway v. Waters, 105 Ark. 619, 152 S.W. 137, we pointed out that in an action to recover damages for false imprisonment, where the arrest is without a warrant, if the imprisonment is proved or admitted, the burden of justification is on the defendant.
Other jurisdictions hold similarly. In the Maryland case of Mahan v. Adam, 124 A. 901, the Court of Appeals said:
“Any exercise of force, or threat of force, by which in fact the other person is deprived of his liberty, compelled to remain where he does not wish to remain, or to go where he does not wish to go, is an imprisonment; the essence of the tort consists in depriving the plaintiff of his liberty without lawful justification, and the good or evil intention of the defendant does not excuse or create the tort.”
In Griffin v. Clark, 42 P. 2d 297, the Supreme Court of Idaho stated:
“In false imprisonment or unlawful restraint, the primary right involved is the liberty of the citizen; the right of freedom of locomotion; the right to come and go or stay, when or where one may choose. In the main the authorities disclose that in order to constitute an unlawful restraint or false imprisonment the essential thing is the restraint of the person. *** The true test seems to be not the extent of the restraint, nor the means by which it is accomplished, but the lawfulness thereof. There need be no actual force or threats, nor injury done to the individual’s person, character, or reputation. Neither is it necessary that the wrongful act be committed with malice or ill will, or even with the slightest wrongful intention. Nor is it necessary that the act be under color of any legal or judicial proceeding. All that is necessary is that the individual be restrained of his liberty; compelled to remain or go where he does not wish to; prevented from moving from one place to another as he may deem proper and desire, without sufficient authority, either directly or indirectly in any manner or by any means, by words alone, by acts alone, or by both, by merely operating on the will of the individual, through reasonable fear of personal difficulty, by actual or apparent force, etc., and the detention must be against the will of the person detained.”
See also the Utah case of Hepworth v. Covey Bros. Amusement Co., 91 P. 2d 507, and the Missouri case of Titus v. Montgomery Ward & Co., 123 S.W. 2d 574.
Let us turn now to the facts in the instant case. Wanda, the twelve-year-old daughter, testified that on December 20, she was riding in a car with her aunt on the way to see her grandmother near Carryville. They were proceeding in that direction when a police car came up behind them with the lights flashing. She said that appellee, Troy Howell, was the driver of the car and that her little brother Jimmy, and her father were in the police car with him. Wanda stated that her father walked over and told her to get out of the car, which she refused to do, and Deputy Sheriff Howell said, “You are getting out of the car, young lady.” She knew that he was a police officer and she got out and entered his automobile. Howell then drove off with the others in his car and went to the establishment where her older sister, Reta, worked; Wanda was told by her father to go get the house key from her sister. After obtaining the key, they were then driven to the police station where she, her brother, and father, transferred to the father’s automobile and proceeded to the home of the mother where she and Jimmy were to get their personal clothing and articles. The witness said that Officer Ralph Cavaness followed them out to the home, and stood by his automobile while the children went into the house and obtained their belongings. She stated that her father then made her ahd the little brother get into his car and they were driven to Missouri.
Wanda testified that she first told her father that she would not go, and that she was unwilling to go with him, being afraid of him. She said that she did not get out of the automobile in which she was riding until Deputy Sheriff Howell ordered her to do so; that she obeyed because he was an officer; further, that she would not have gone with her father except for the presence of the officer. Wanda stated that she stayed in three different houses in Kansas and that finally, after her constantly repeating that she wanted to return, he permitted her to come back home. The little girl also testified that, in her presence, Jimmy stated that he wanted to stay in Piggott with “Mom”. The witness said that Deputy Sheriff Howell did not take hold of her but did say, “You are going”; that he didn’t offer to strike or harm her and that she did not recall him saying anything after telling her to get into her father’s car.
Joyce Nash, a sister of appellant, testified that she was with Wanda when they were stopped on December 20. She said that Mr. Hall and Howell walked over to their automobile and the father told Wanda to get out of the car. When she refused, the witness quoted Howell as saying, “You are going, young lady; get out of that car.” She stated Howell was wearing a “police uniform”, and that she knew that he was an officer; that when she asked Howell if he was not going to let the mother know about it, “he says he didn’t have to let her know anything.”
Cathey Nash, another sister, was at her mother’s home when Jimmy was picked up. She said Hall told Jimmy to get his things and that Troy Howell stated that Mr. Hall had a right to take Jimmy; that the latter cried and said he didn’t want to go. She testified that Howell did not take hold of Jimmy and that she read a “paper” Mr. Hall had with him, but that it didn’t mean anything to her. She added Jimmy was given his Christmas presents to take with him.
The Circuit and Chancery Clerk for Clay County, Arkansas testified that no order, or process, commanding an officer to do anything about the custody of Wanda or Jimmy had been issued by his office.
Ralph Cavaness, the city policeman, testified that acting under orders given to the radio operator by Sheriff Smith and Howell, he followed the Howard Hall car to the Pettijohn home; he was aware that Hall and appellant were having a “custody fight.” He said he waited in the car while the children obtained their wearing apparel and other items and said nothing except that he told Reta, when she came out of the house, that she had better go back to the house. He admitted that what he said to her was equivalent to an order. Cavaness stated that the radio operator had told him that he had a warrant, “the papers to pick the kids up.”
Deputy Sheriff Howell, a deputy for four and one-half years, testified that he took Hall to pick up the children. He said that his purpose was “to keep down the peace”, and that he had so acted in numerous “similar cases”; he admitted that on the occasion here in question he had been told by the sheriff to do so. Howell testified that he knew that under normal conditions he would need a process of some kind but stated, “not when the sheriff informs you to go, or tells you, sometimes you don’t— you take his word.” He said that he was given no process of any kind. Howell testified that the little boy cried when the father told him he was to leave with the father, and it appeared to him that Jimmy did not want to go. Howell denied that he made any statements, or did anything to force the children to leave. However, he did admit a fact which is very pertinent to this litigation, viz., that he stopped the automobile in which Wanda was riding. From the record:
“We met a car, a Chevrolet, '63 Chevrolet, and the little boy said, ‘My sis is in this car, that car’, and we turned around and I got them stopped just the other side of the Four-Mile-Turn, on the gravel road out there. I pulled up behind them and turned my light on.
Q. Uh-huh. Officer Howell, at that time was there any trouble out there?
A. There was no trouble.
Q. Did you or Mr. Howard J. Hall make the first— make any statements to the occupants of that other car?
A. I did not make no statements.
Q. Tell the jury, the best you remember it, what happened there.
A. Mr. Hall got out and got the girl out of the car; I got out of my car and went back and opened my left back door and let the girl sit down in my car.”
Sheriff Smith did not testify.
There is no contention on the part of appellees that the officers were serving a court order, or doing anything at the direction of any court. While Howell denied making any statements, or taking any active part in picking up the children as testified to by the witnesses, the admitted act of stopping the car was completely without authority and, in itself, establishes liability. No unlawful act was being committed, or thought by the officer to have been committed when the car was halted, and the flashing light would certainly indicate authoritative police participation to those being stopped. One needs no great imagination to visualize the effect upon the children, either at the car or at the house, of a uniformed officer apparently acting in concert with their father.
From a legal standpoint, it makes little or no difference what the officer thought, or that he was acting under the orders of his superior (though this might be considered in mitigation of damages). The act of stopping the automobile, and of taking Hall in the police car to pick up the. children, thus supporting the acts by Hall and lending an aura of official sanction by his presence, under the circumstances herein constituted false imprisonment of the children.
The failure of the sheriff to testify is interesting, and has some significance, in that no reason is ever given for the action taken. In Starnes v. Andre, 243 Ark. 712, 421 S.W. 2d 616, this court said:
“Failure of a party to an action to testify as to facts peculiarly within his knowledge is a circumstance which may be looked upon with suspicion by the trier of the facts. Fordyce v. McCants, 55 Ark. 384, 18 S.W. 371; Broomfield v. Broomfield, 242 Ark. 355, 413 S.W. 2d 657. His failure to testify gives rise to the presumption that his statements would have been against his interest. Cady v. Guess, 197 Ark. 611, 124 S.W. 2d 213.”
Certainly, the burden was on the sheriff to explain his actions, and no legal reason, or for that matter, reason at all, having been given, the court should have granted the directed verdict for appellants.
As stated earlier, this holding precludes any necessity to discuss other points in detail. However, we have held that on remand for trial of a law case, it is tried de novo. See Clark v. Ark. Democrat Co., Supplemental Opinion, 242 Ark. 497, 413 S.W. 2d 629. Aside from the directed verdict, four instructions were offered by appellant and refused by the court, but there is no reason to discuss these offered instructions since we have no way of knowing what the evidence will be on a second trial. Point VI is a contention that the court erred in refusing to let Mrs. Pettijohn tell the jury the reason given by the father in bringing Jimmy to her to make his home in Piggott. There was no tender of what this evidence would have been, and not knowing what she would have said, we cannot pass upon the point, though it is difficult to determine how the officers could have been liable for some statement made by Hall to his ex-wife.
It was also alleged that the trial court erred in refusing to let Mrs. Pettijohn testify that Mr. Hall was bound over by the Piggott Municipal Court for trial on the grand larceny charge. The court did not err as this would have been entirely hearsay testimony on the part of appellant. We are not here called upon to determine whether the clerk’s records could have been properly offered to that effect.
Finally, it is asserted that the court erred in refusing to allow Mrs. Pettijohn to tell the jury that she had been awarded full and exclusive custody of the minor children by the Clay County, Arkansas, Chancery Court pursuant to the suit which she had filed, and which we have earlier mentioned. Again, Mrs. Pettijohn testifying to this fact would not have been the best evidence, but we are of the view that any evidence relating to this custody court order would have been inadmissible because of the fact that the order was not entered until after the events had occurred which are here complained of.
In accord with the views herein expressed, the judgment is reversed, and the cause is remanded to the Clay County Circuit Court with instructions to proceed in a manner not inconsistent with this opinion.
It is so ordered.
Wanda, about ten days later, was permitted to return to her mother’s home.
The complaint against Cavaness was dismissed at the close of evidence.
See also Ark. Stat. Ann. §§ 43-429 — 43-436 (Supp. 1971), sometimes called the “Stop and Frisk” Statute. This was passed by the General Assembly and became Act 378 of 1969.
Hall was in the courthouse on the day of the custody hearing, appearing in the Municipal Court during the morning on the grand larceny charge. The custody hearing was held in the early afternoon, but Hall elected not to stay for this hearing. | [
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Richard B. Adkisson, Chief Justice.
The Pulaski County Circuit Court affirmed the order of appellee, Arkansas Public Service Commission, which allowed Arkansas Oklahoma Gas Company to charge its customers in Eastern Arkansas more than its customers in Western Arkansas and denied the request of appellant, Nick Wilson, to equalize the rates between the two areas. On appeal we affirm.
Arkansas Oklahoma Gas Co. (AOG) serves customers in both Eastern and Western Arkansas. There are 35,435 customers in the Western Division and 3,666 in the Eastern Division. AOG purchases the gas it sells to Eastern Arkansas from the Mississippi River Transmission Company, and the cost of this gas is much higher than AOG’s own gas. The more expensive gas must be purchased for Eastern Arkansas because AOG is unable to transport its gas supplies in Western Arkansas to Eastern Arkansas. The cost differential results in Eastern Arkansas customers paying about $80 more per year for gas than those customers in Western Arkansas.
On December 1, 1980, AOG requested that the PSC grant it a general rate increase for its service to Arkansas. Under the rate increase Eastern Arkansas would continue paying higher rates. Appellant filed a motion to intervene in the case, alleging that the separate rates allowed an unreasonable preference between localities and requesting that the rates be equalized. According to appellant, equalization would result in Eastern Arkansas customers paying substantially less per year while Western Arkansas customers would pay only a small amount more per year. The PSC allowed appellant to intervene and also allowed intervention by Western Arkansas customers. A hearing was held, with both sides presenting testimony. The PSC then ruled that there was a real cost differential between the two areas and that the cost differential was based upon a reasonable and fair difference in conditions which justified the different rates.
Appellant argues that the Commission’s order violates Ark. Stat. Ann. § 73-207 (Repl. 1979) which provides:
Unreasonable preference prohibited. — No public utility shall, as to rates or services, make or grant any unreasonable preference or advantage to any corporation or person or subject any corporation or person to any unreasonable prejudice or disadvantage. No public utility shall establish or maintain any unreasonable difference as to rates or services either as between localities or as between classes of service. The Department [Commission] may, in the exercise of its jurisdiction herein granted, fix uniform rates applicable throughout the territory served by any public utility, whenever in its judgment public interest requires such uniform rates. The Department [Commission] may determine any question of fact arising under this section.
Appellant agrees that the cost of gas purchased from the Mississippi River Transmission Company for the Eastern Division is a separate cost incurred only in connection with that area, but alleges that a difference in the cost of gas is not a reasonable basis for charging one group of ratepayers more than other ratepayers. Appellant relies on Missouri Ex rel. De Paul Hospital School of Nursing v. Missouri Public Service Comm., 88 P.U.R. 3rd 412, 464 S.W.2d 737 (1970) for the proposition that a utility cannot charge two or more rates for the same service. Appellant ignores the fact that the utility company in that case charged different rates for substantially the same service “under substantially the same circumstances and conditions.” Here, the circumstances and conditions upon which AOG’s rates are based are not the same. It is undisputed that AOG must pay a base price of $2.521778 for gas for the Eastern Division as compared to $1.879559 for the Western Division.
Furthermore, our statute does not prohibit differences in rates; it merely prohibits unreasonable rate differences. The PSC found that the base price of gas, the cost of transporting the gas, and the fact that the discontinuance of the differential would discriminate against the area having the lesser costs were reasonable differences which justified the higher cost for Eastern Arkansas. We have repeatedly held that if the PSC’s order is supported by substantial evidence and is not arbitrary it is our duty to permit it to stand. Inc. Town of Emerson v. Ark. Public Service Comm., 227 Ark. 20, 295 S.W.2d 778 (1956). Such is the case here.
In support of its equalization argument appellant points to the fact that AOG equalizes its Western Arkansas rates, even though it obtains gas for five towns from Arkla. This is true, but appellant overlooks the fact that the gas from Arkla is obtained pursuant to a swapping arrangement which does not affect the cost.
To further support its argument, appellant alleges that with PSC approval Arkla equalizes its rates in Arkansas even though it too must purchase more expensive gas for nine cities in Southwest Arkansas. However, the PSC is not required to make the same decision in every rate case, but must take into consideration the particular circumstances of each case. See Southwestern Bell Telephone Co. v. Ark. Public Service Comm., 267 Ark. 550, 593 S.W.2d 434 (1980).
Affirmed.
Dudley, J., not participating. | [
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John A. Fogleman, Justice.
Appellant was convicted of possession of stolen property, and, as an habitual criminal, was sentenced to 21 years in the penitentiary. No appeal was taken, but appellant filed his original petition for postconviction relief on the sole ground that he was denied effective assistance of counsel at his trial. The primary bases upon which he argues that he was entitled to relief upon his original and amended petitions were that he was ill-prepared for trial because his attorneys misled him into believing that if the prosecuting witness expressed a desire to drop the prosecution, there would be no trial, and that his attorneys failed to call alibi witnesses of whom he had informed them. This is the latest in an epidemic of cases in which a convicted felon has sought a retrospective evaluation of the effectiveness of his trial counsel, based largely upon disappointing trial results. We find no more merit in this petition than we have in most such post-imprisonment longings for a judicial test of the competence of counsel from the perspective of hindsight, because of speculation that some course of action different from that taken during the trial might have produced a result more favorable to the petitioner.
In denying appellant’s petition, the trial judge made specific findings that trial counsel did. not tell appellant that if the prosecuting witness would sign a letter recommending dismissal of the charges there would be no trial and that, on every point, appellant was adequately represented by counsel. We find ample evidentiary support for these findings by the trial judge who was the same judge who presided over appellant’s trial. We accord more than usual weight to such findings under the circumstances prevailing here. Leasure v. State, 254 Ark. 961, 497 S.W. 2d 1.
The appropriate test in such cases, regardléss of whether counsel is retained or appointed, has been stated by us in previous cases. In short, the question is whether the petitioner has shown by a preponderance of the evidence that acts or omissions (or both) of his attorney result in making the proceedings a farce and a mockery of justice, shocking the conscience of the court, or that petitioner's representation by counsel was so patently lacking in competence or adequacy that it becomes the duty of the court to be aware of and correct it. See e.g., Leasure v. State, supra; Davis v. State, 253 Ark. 484, 486 S.W. 2d 904; Franklin and Reid v. State, 251 Ark. 223; 471 S.W. 2d 760. See also, Easley v. State, 255 Ark. 25, 498 S.W. 2d 664, decided today.
Both of appellant’s attorneys were called as witnesses by petitioner. One of them, Omar Greene, stated categorically he did not tell appellant that there would be no trial if the prosecuting witness did not wish to prosecute, and that the defendant did not request that the case be appealed. The other attorney, Alan Nussbaum; could not recall having advised appellant that the trial court would dismiss the charge if the prosecuting witness signed a letter stating he did not wish to prosecute appellant. Neither could he recall appellant having given the names of alibi witnesses. This attorney also told of extreme difficulty encountered by both attorneys in getting in touch with appellant during the period of approximately two months intervening between their retention and his trial. This attorney .said he came to the conclusion that appellant was guilty of the charge on the basis of the facts related by appellant himself and obtained an offer from the. prosecuting attorney to recommend a five-year sentence and to drop another charge pending against appellant upon appellant’s entry of a plea of guilty. He added that appellant refused to so plead in spite of advice that, upon conviction after trial, he could receive a minimum sentence of 21 years, because óf his previous record.
Appellant contradicted the testimony of these attorneys in regard to representations made by them to him, the giving of names of prospective witnesses and his expression of a desire to take an appeal. He also produced a witness, George Lee Champ, also a convicted felon, who stated he told one of the attorneys he knew where appellant was on the day of the crime and outlined facts that would have tended to establish an alibi. Melissa Hawkins, a friend and next door neighbor of appellant, testified to facts which tended to show that appellant was, indeed, in the company of Champ on the day in question. While her identity was known to one or the other or both of appellant’s attorneys, there is no proof that either was informed of her potential testimony. The attorney to whom Champ claimed to have told his story recalled talking to Champ but denied that either Champ or Sheppard ever intimated to him that Champ knew anything about the case or appellant’s whereabouts on the day the offense was said to have been committed. This attorney also stated he was familiar with Champ’s record and felt certain that Champ would have been discredited in the eyes of any jury. The lawyer also said he only knew of Melissa Hawkins as a person to contact in trying to reach Sheppard, but denied that he knew she was a possible witness. This witness stated he told appellant he could not prosecute an appeal in appellant’s behalf, and wanted nothing further to do with the case, advising Sheppard at the same time that he should write to the judge and ask for the appointment of an attorney. This witness explained counsel’s failure to call one Isom Burnett Kelley (subpoenaed by the state) as a witness because he was familiar with Kelley’s statement to the police ihcrimina-ting appellant, and knew that, if Kelley testified otherwise, he would be impeached by the statement.
It should be noted that L. B. Robinson, the prosecuting witness, not only signed a statement declining to prosecute Sheppard and requesting dismissal of the charges, but one of the attorneys stated that Robinson testified to the same effect at the trial. No witnesses were called at the trial on behalf of appellant, who testified that he was not deprived of his right to testify, but that he did not take the witness stand because his attorneys advised him not to do so because of his criminal record (three prior convictions).
The trial court was justified in resolving conflicts in the testimony against appellant because of his greater interest in the matter and his previous convictions, if for no other reason. It is possible that both appellant and his attorneys were overconfident about the effect of the assistance of the prosecuting witness. The most that could possibly be said, however, when the evidence is viewed in the light most favorable to the state, as it must be, is that, in retrospect, counsel may have been guilty of errors, omissions, mistakes, improvident strategy or poor tactics, which is insufficient basis for postconviction relief. Leasure v. State, supra. We cannot say that any acts or omissions of appellant’s attorney reduced the trial to such a farce or mockery of justice or that his representation was so patently lacking in competency or adequacy that it was the duty of either the trial court or this court to be aware of it or take corrective action. Most of the matters complained of by appellant relate to trial tactics and strategy involving the exercise of the trial attorneys’ discretion and competence and upon which competent counsel might honestly disagree, especially from the excellent vision of hindsight. These matters cannot afford the basis for a finding of incompetence or ineffective assistance of counsel. Leasure v. State, supra; Credit v. State, 247 Ark. 424, 445 S.W. 2d 718.
We deem appellant’s assertion that he was denied the right of appeal through nonfeasance of his attorneys to have been abandoned, or to have been an afterthought. It was not alleged in his Rule 1 petition and has not been argued here in any way. According to the testimony of Nussbaum, he viewed an appeal as non-meritorious and felt there was no way he could properly represent appellant on an appeal. Since it appears that this attorney advised appellant of appropriate steps to take in order to appeal the case, the right to appeal seems to have been lost by appellant’s own inaction.
We find no reversible error and affirm the judgment denying postconviction relief.
Byrd, J., not participating.
According to the trial judge, appellant was advised of his right to appeal at the time of sentencing.
atiere is a conflict in the testimony as to whether the attorneys for appellant were appointed or retained, but we deem that question immaterial in this case. | [
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Robert H. Dudley, Justice.
Both parties to this appeal claim forty acres of mineral rights in Johnson County. Gas and coal are now at stake.
In 1919 Rebecca Rogers Smith deeded her dower interest in the land to W. A. Hill. In 1920 he conveyed his interest in the surface “with all coal and mineral reserved, all right to mine, strip or enter and remove any and all coal is reserved.” Appellees, the Hills, claim their title to the minerals through W. A. Hill. The mineral rights were not properly subjoined with the surface rights on the tax books in the years material to this appeal and, in 1929, the “Mineral Titles” in the name of W. A. Hill were forfeited for nonpayment of the 1926 taxes.
Appellant, Emma Hurst, claims title to all minerals by virtue of a State mineral tax deed obtained by her husband in 1930 for non-payment of the 1926 tax on minerals. The tax deed was confirmed in 1938 in an ex parte proceeding.
In 1966, appellant, Emma Hurst, leased her interest to a drilling company as did others. Various leases were then pooled and unitized into a drilling unit and producing gas wells were drilled. In 1967 the producing gas companies filed a suit asking for a declaratory judgment between the parties to this appeal, and others, to determine ownership of the oil and gas and entitlement to royalties. After both parties to this appeal had answered, the trial court in 1967 decreed that appellant, Emma Hurst, and her husband, since deceased, “were the owners of oil and gas in and under” the tract.
In 1981 appellant, Emma Hurst, filed a petition to quiet title to the oil, gas and other mineráls. She alleged that coal was being removed pursuant to a lease with the owner of the surface lands. The defendant removing the coal and the defendants owning the surface lands were dismissed without prejudice and are not parties to this appeal.
The trial court held: (1) the 1967 decree decided only that appellant Hurst was entitled to oil and gas royalties that would accrue from the wells then producing; (2) the tax deed and confirmation, under which appellant claims, were invalid; and (3) the title to all coal, gas, oil and other minerals is owned by the heirs of W. A. Hill, under the mineral reservation, subject only to the right of appellant Emma Hurst to receive royalties from the then producing wells. Only Emma Hurst appeals. There is no cross-appeal.
Appellant first contends that the chancellor erred in interpreting the 1967 decree to establish in her only a right to receive a royalty on the wells then producing. We agree. Both of the parties to the present action were before the court in 1967, ownership of the oil and gas was at issue and there was a final adjudication on the merits. That judgment decreed that appellant and her husband were “the owners of the oil and gas in and under the lands described....” After that term of court lapsed, the trial court lost jurisdiction to modify the judgment except for grounds which are not applicable to this case. Ark. Stat. Ann. § 29-506 (Repl. 1962), superseded by ARCP Rule 60. The time to modify has passed. There was no appeal. The time to appeal has passed. The matter of ownership of the oil and gas is now res judicata. As we stated in Wells v. Heath, 269 Ark. 473, 602 S.W.2d 665 (1980):
The doctrine of res judicata is accepted as a rule of inflexible absolute law in practically every jurisdiction. If the judgment is entitled to res judicata, it is conclusive as to the cause of action involved no matter how “unfair” or “patently erroneous” it may now seem to the court examining the judgment. 65 Harv. L.R. 818. There must be an end to litigation at some point; and, if there has been one fair trial on the merits of a case, that is all that is required.
Thus, the trial court erred in modifying the 1967 decree. The distinction between the 1967 decree and the 1982 decree is significant. The 1967 decree gave appellant ownership of the oil and gas but the 1982 decree modified that ownership to a right to royalty from a lease. Appellant’s award under the 1967 decree gave her the incidents of ownership of oil and gas including the right to sell the same, to explore for and develop the minerals, to lease for exploration and development, to receive income therefrom in the form of delay rentals and royalties either for shut-in or production, to pass by will or inheritance and to occupy as much of the surface as is reasonably necessary for mining and drilling purposes. H. Williams & C. Meyers, Oil & Gas Law § 301 (1981). However, under the 1982 decree the rights of appellant were modified and appellant was held to possess a right only to receive payment of royalties from all wells producing in 1967. Thus, appellant would have only a right of contract to receive a payment based upon production under a lease and nothing more. Appellant’s interest would terminate when the lease terminated. Id. §§ 302 and 303; see also, Hickman, Oil and Gas — Partition — Interest of Lessee, 11 Ark. L. Rev. 186 (1957).
The decree now on appeal is modified to reflect that the appellant is the owner of the oil and gas.
The 1967 decree was the result of a suit for a declaratory judgment filed by the production companies. It involved only the ownership of oil and gas. It did not involve title to the coal and other mineral rights. In the 1982 decree now before us the appellees, as heirs of W. A. Hill, were held to be owners of the coal and other minerals. We affirm.
The claim of appellant, Emma Hurst, to the coal and mineral rights is based on the mineral tax deed. The mineral assessments for the year of the tax forfeiture were not subjoined to the assessments of the surface rights. For a mineral estate assessment to be valid, the mineral estate listing on the tax books must be subjoined to the surface estate. Adams v. Bruder, 275 Ark. 19, 627 S.W.2d 12 (1982). Therefore, the State mineral tax deed was void. The 1938 ex parte attempt to confirm the tax title did not constitute an adjudication against W. A. Hill because he was not made a party to that action and his reservation of mineral rights was of record. One seeking confirmation of a mineral title has constructive knowledge of a previous deed of record and is required to make that prior deed holder a party to the proceeding if the prior deed holder is to be bound. Union Sawmill Co. v. Rowland, 178 Ark. 372, 10 S.W.2d 858 (1928).
Appellant Emma Hurst also claims that she has been in adverse possession of the minerals. A void mineral tax deed can be sufficient color of title for the purpose of determining title by adverse possession. Skelly Oil Co. v. Johnson, 209 Ark. 1107, 194 S.W.2d 425 (1946). However, to constitute adverse possession of constructively severed minerals, there must be a continuous user of the minerals for the statutory period. Even a sporadic user is not sufficient. Skelly Oil Co. v. Johnson, supra, citing Claybrooke v. Barnes, 180 Ark. 678, 22 S.W.2d 390,67 A.L.R. 1436 (1929). Appellant’s only proof about mining was that “way back there” some people “around town went there and dug holes as they call them and got some [coal] out to burn.” Such limited use is not sufficient to start the running of the statute of limitations. See, e.g., H. Williams & C. Meyers, Oil & Gas Law § 224.4 n.6 (1981). There was no showing that the appellees or their predecessors in title were put on notice of a claim of adverse possession of all minerals by appellant. Laney v. Monsanto Chemical Co., 233 Ark. 645, 348 S.W.2d 826 (1961). See also, Brizzolara v. Powell, 214 Ark. 870, 218 S.W.2d 728 (1949), discussed in H. Williams & C. Meyers, Oil & Gas Law § 224.4 (1981). In addition, appellant contends that she has been drawing gas royalty for fifteen years and this production constitutes adverse possession for all minerals. We decline to so hold. Such a claim from gas production goes to the gas only and the drilling and production of a gas is not adverse to the mining or stripping of coal, a solid mineral. We need not decide if drilling and producing a gas or other liquid mineral is ever adverse to the drilling of any solid mineral. Nor need we decide whether the mining of one solid mineral is adverse to that mineral alone or to the mining of all other minerals. Likewise, we do not decide whether the mining or producing of one mineral will be treated as adverse to all minerals when a claim is made to all minerals. See H. Williams & C. Meyers, Oil & Gas Law § 224.4 (1981). We affirm the trial court’s holding that appellant, Emma Hurst, does not hold title to the coal and other minerals, other than oil and gas, by virtue of the 1967 decree, the State mineral tax deed or adverse possession.
In 1919 W. A. Hill purchased the dower interest of Rebecca Rogers Smith in the land. In 1920 he conveyed his interest in the surface “with all coal and mineral reserved, all right to mine, strip or enter any and all coal is reserved.” Although there is no testimony by or about those grantors or grantees, the Hill deeds are abstracted in a properly certified abstract of title. The abstract is prima facie evidence of the facts recited in it. Ark. Stat. Ann. § 71-111 (Repl. 1979). Thus the trial court was correct in ruling that appellee’s claim based upon the reservation must prevail as between these parties.
In oral argument appellant Emma Hurst pointed out that appellees, the alleged heirs of W. A. Hill, have failed to prove that he is dead or that they are his heirs. While such proof is lacking, it does not affect appellant’s title in this case. If W. A. Hill is in fact deceased, a determination of heirship may be had, but that issue is not now before us. All that is before us is whether the claim based on the reservation in W. A. Hill prevails as between appellant and appellees.
Appellant Emma Hurst also contends that the trial court erred in dismissing without prejudice the claim of appellees Rice to the coal. Since we affirm the ruling that appellant Emma Hurst owns no rights to the coal, the issue is moot to appellant. Appellees do not question the dismissal and therefore we do not address the point.
Affirmed as modified.
Purtle, J., not participating. | [
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Richard B. Adkisson, Chief Justice.
Appellee, Jack L. Graham, brought suit on behalf of citizens and taxpayers of North Little Rock to declare the “public safety fee” collected pursuant to City Ordinance No. 5202 unconstitutional as an illegal exaction and asked that appellant, the City of North Little Rock, be required to refund monies illegally collected pursuant to the ordinance. The Pulaski Chancery Court granted the relief requested. On appeal we affirm.
On January 5,1981, the North Little Rock City Council enacted Ordinance No. 5202 for the purpose of raising $700,000 so that the policemen and firemen of North Little Rock could receive salaries and benefits commensurate with those received by Little Rock policemen and firemen. The $700,000 was to be collected by assessing a $3.00 per month “public safety fee” on the water bill of each household, business, and apartment residence in North Little Rock. The ordinance also provided that persons receiving $6,000 or less in salary be exempt from the charge. Approximately $343,620 was collected beginning on January 26, 1981, and was placed in the general fund of the city.
On April 13, 1981, the city council adopted Ordinance No. 5240 which proposed a city sales and use tax and provided that Ordinance No. 5202 would be repealed “when and if the citizens of North Little Rock approve the levy of the said sales and use tax.” The voters approved Ordinance No. 5240 on May 19, 1981, but it did not go into effect until July 1, 1981, pursuant to Ark. Stat. Ann. § 19-4514 (e) (1) (Repl. 1980). Meanwhile, the city continued to collect the “public safety fee” until the end of June, although it later refunded the amounts collected between May 19 and July 1.
The first question which we must decide is whether the public safety fee created by Ordinance No. 5202 was a fee or a tax. If it was a tax, the ordinance is void as an illegal exaction, since it was never voted upon by the voters as required by Ark. Stat. Ann. § 17-2002 (Repl. 1980). If it was a fee, it was a valid enactment outside the scope of Ark. Stat. Ann. § 17-2002 which has no application to fees.
Taxes are enforced burdens exacted pursuant to statutory authority. Miles v. Gordon, 234 Ark. 525, 353 S.W.2d 157 (1962). Municipal taxes are those imposed on persons or property within the corporate limits, to support the local government and pay its debts and liabilities, and they are usually its principal source of revenue. 16 E. McQuillin, Municipal Corporations § 44.02 (3rd ed. 1979).
There is a distinction between a tax imposed for general revenue purposes and a fee charged in the exercise of police power. Parking Authority of Trenton v. Trenton, 40 N.J. 251, 191 A.2d 289 (1963). An example of a fee charged in the exercise of police power is found in Holman v. City of Dierks, 217 Ark. 677, 233 S.W.2d 392 (1950). In Holman we held that an “annual sanitation charge” of $4.00 per business and residence which was to pay for fogging the city with an insecticide three times a year was a fee “for services to be rendered” and not a tax. In Vandiver v. Washington County, Ark., 274 Ark. 561, 628 S.W.2d 1 (1982) we considered whether an annual $15 charge for emergency medical services was a fee or a tax. We concluded that it was a fee, but we note that in that case the people had voted on and approved the charge.
Here, it is undisputed that the people never voted on the $3.00 charge and that the charge is to pay for a salary increase for policemen and firemen. Therefore, it is a payment exacted by the municipality as a contribution toward the cost of maintaining the traditional governmental functions of police and fire protection. See Olustee Co-operative, Association v. Oklahoma Wheat Utilization Research & Market Development Comm., 391 P.2d 216(Okla. 1964). It is not for a specific, special service such as the spraying for insects but is a means of raising revenue to pay additional money for services already in effect. Therefore, we conclude that this $3.00 charge is a tax and not a fee.
Other issues presented by this case are either rendered moot by our decision or were not argued on appeal. The trial court’s order is therefore affirmed.
Affirmed.
Hickman, J., concurs. | [
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Holt, J.
The parties to this litigation were married November 14,1941. They were both employed at the Veterans Hospital where appellant (Mrs. O’Quin) had worked for approximately twenty years and is now so employed. Immediately following their marriage, they established a joint bank account in a North Little Rock Bank in which both deposited all earnings. Appellee (Mr. O’Quin) had a son by previous marriage, but has no child by appellant. Both were middle-aged.
At the time of their marriage, Mrs. O’Quin owned four lots in North Little Rock on one of which was her dwelling. She also possessed cash and household furniture, all totaling approximately $2,200. Mr. O’Quin owned property of the approximate value of $1,500.
By thrift and regular employment, from their joint efforts, they improved the home property of Mrs. 0 ’Quin and acquired and improved a number of other pieces of real estate, also Government bonds, a profitable plumbing shop built on one of the above lots which Mrs. 0 ’Quin brought to the marriage, an automobile and other property. All of the above property, real and personal, immediately following the marriage and as later acquired, was put in the names of Mr. and Mrs. O’Quin as tenants by the entirety.
This marriage progressed harmoniously until August 11, 1948, when differences arose which resulted in Mr. 0’Quin’s filing suit for divorce and a decree in his favor on September 1, 1948. On August 28, 1948 (about three days before this decree), an alleged property settlement had been made by these parties and deeds executed.
Thereafter, on September 14,1948, the parties having become reconciled, at their joint request, the court set aside and annulled the above decree of divorce of September 1, 1948, but made no order relative to the previous property settlement.
The present suit was filed by Mrs. O’Quin December 23,1948, in which she asked for divorce and that the deeds which she made to Mr. O’Quin wherein she conveyed certain real property, presently referred to, be set aside for fraud, undue influence in its procurement and lack of consideration, and that she was entitled to one-half of all their property, real and personal.
The trial court, after an extensive and patient hearing, denied appellant’s prayer for divorce, but confirmed in Mrs. 0 ’Quin title to the real property received by her in the alleged property settlement August 28,1948, $1,600 in cash, a Plymouth automobile valued at $2,300 and her right to $2,500 in Postal Savings Certificates. By the decree, Mr. O’Quin was given real property worth more than $30,000, the plumbing shop, trucks and equipment, of the approximate value of $5,000, $2,500 in Postal Savings Certificates, and $12,299.85, which constituted their joint bank account.
Much testimony was presented. Charges, counter-charges, and accusations, not sustained by the proof, were made. We shall not extend this opinion by detailing the testimony. It suffices to say that, on the divorce issue, we hold that both parties appear to be about equally at fault; that, in the circumstances, all accusations, differences and any misconduct were condoned and forgiven by each following the resumption of their marital relations, as indicated, and that the preponderance of the testimony is not against the Chancellor’s finding that appellant was not entitled to a divorce.
On the issue of the property settlement, we hold that the court erred in denying Mrs. 0’Quin’s contention that all of the property involved here was acquired and owned by the parties as tenants by the entirety and that she was therefore entitled to a one-half interest in said property.
We think the preponderance of the evidence shows that following the first rift in their marriage August 11, above, the parties endeavored to adjust their differences and that appellee by what, in effect, amounted to fraud, overreaching, and deception, induced his wife, on the promise to save the marriage, to deed to him on August 28, 1948, lots 1, 2, 11 and 12 Holead’s Addition to Levy, now in the City of North Little Rock, Pulaski County, Arkansas, and Lot 5, Block 60, North Argenta, now in the City of North Little Rock. ' The four lots above described in Holead’s Addition were owned by Mrs. O’Quin at the time of their marriage.
At the same time a deed was executed to Mrs. O’Quin to Lots 11 and 12, Block 2, Machin’s Addition to North Tittle Rock and Lot 2, Block 4, Vestal’s Addition to North Little Rock.
These deeds appear to have been executed on a Saturday and on the following Monday, August 30, Mr. O’Quin sued for divorce and secured an uncontested decree which was later set aside, as above indicated.
It is a well settled rule applicable here that: “Equity will scrutinize more closely a conveyance from the wife to the husband than an ordinary conveyance. On account of the confidential relation and the supposedly greater influence of the husband, the wife’s conveyance may be attended with a presumption against its validity. 21 Cyc. 1293.
“ ‘In any transaction by which the husband acquires title to his wife’s separate property, the burden is on Mm to show it to be fair and without any exercise of undue influence, and such as in good conscience ought to bind her.’ ” (Mathy v. Mathy, 88 Ark. 56, 113 S. W. 1012.)
We think it clear that following the setting aside of the divorce decree, September 14, 1948, there was an honest effort and intention by both parties to resume their former status in every respect, including their joint property interests which, in effect, cancelled their property settlement of August 28, 1948.
It is significant that Mrs. 0 ’Quin on the resumption of their marital relations, delivered to Mr. O’Quin the Postal Savings Certificates along with deeds and other properties, the $1,600 assigned to her by her husband was deposited in a new joint bank account and all rents from their properties went into this account, along with Mrs. 0’Quin’s salary checks. There appears to have been no effort by them during this period to separate their property interests.
The rule is well settled that: “Where the parties to a valid separation agreement afterward come together, and live together as husband and wife, where their conduct toward each other is such that no other reasonable conclusion can be indulged than that they had set aside or abrogated their agreement of separation, then such agreement should be held as annulled by the parties to it, and their marital rights determined accordingly.” (Carter v. Younger, 112 Ark. 483, 166 S. W. 547), and in Sherman v. Sherman, 159 Ark. 364, 252 S. W. 27, where a separate agreement involving property was involved, after reaffirming the above language in the Carter v. Younger case, we said: “Tested by this rule, we think that the facts and circumstances of this case warranted the chancery court in finding that the marital relations between J. W. Sherman and his wife never ceased, and that there was mutual forgiveness of the past misconduct on the part of each. . . .
“The preponderance of the evidence indicates that it was not only their intention to end the contract, in so far as it required them to live apart, but also to annul it as to the settlement of their property rights. . . .”
We have not overlooked appellee’s “Motion to Dismiss, ’ ’ which we hold to be without merit.
Accordingly, the decree denying the divorce is affirmed, but? as to the property rights, is reversed and the cause is remanded with directions to set aside any and all instruments by which the parties have destroyed the tenancy by the entirety existing between them, and to enter a decree that the parties are tenants by the entirety as to all real and personal property owned by them before the instruments of August 28, 1948. If, since August 28, 1948, either party has made unfair or prejudicial disposition of any of the personal property to the disadvantage of the other, then the Chancery Court will, on proper petition of the aggrieved party, require restoration of such personal property to the entirety estate. The cost of all proceedings is adjudged against the appellee.
Judge G-eoege Boss Smith not participating. | [
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John I. Purtle, Justice.
The Probate Court of Pope County, Arkansas denied the petition of appellant to bar the dower interest of the widow of Parker Parker, deceased. On appeal it is argued that the trial court improperly allowed a dower interest to the widow pursuant to statutes which had been declared unconstitutional. It is our opinion that the trial court correctly and timely interpreted the law as applied to the facts in this case.
Parker Parker died on November 6, 1976. The widow attempted to probate a will which was declared invalid by the trial court. The trial court’s decision was affirmed by this court on February 12, 1979 in Parker v. Mobley, 264 Ark. 805, 577 S.W.2d 583 (1979). Subsequently, the widow, acting as a co-administratrix of the estate, disposed of some of the property and sought an order of partial distribution. At a hearing on this action the attorney for the appellant obj ected to the amount of fees being allowed to the widow. Appellant’s attorney at one point stated:
I think the court should take into account the fact she will receive a dower interest in the estate. She will receive, if the court grants her petition, the maximum allowed under the statute, and that in addition she is asking the court to allow her another Ten Thousand Dollars ($10,000.00) more or less ...
On November 10, 1980, the court approved the partial distribution of assets and the widow was given the sum of $19,672.76 as dower interest on this particular transaction. The widow was not specifically awarded a dower interest in the estate by the heirs nor did she petition for same herself.
When this case was before us the first time, the present appellant was the appellee and claimed that her father died intestate. We upheld her contention on rehearing. However, on February 23,1981, this court handed down the opinion of Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981), wherein we declared the gender based dower statutes unconstitutional. Shortly thereafter, appellant filed her petition seeking to bar the widow from receiving a dower interest in the Parker estate.
The opinions of Stokes v. Stokes, supra, and Hess v. Wims, Ex’x., 272 Ark. 43, 613 S.W.2d 85 (1981), were discussed by this court in the case of Hall v. Hall, Ex’r., 274 Ark. 266, 623 S.W.2d 833 (1981). In Hall, we held that a constitutional decision such as Stokes or Hess has never been completely retroactive. In Hall, we stated that a widow who had received her statutory dower in earlier years could not be stripped of her estate at a later time because the statutes under which she had been awarded her estate had been declared unconstitutional. We agree that Stokes and Hess are not to be given retroactive effect in the present case.
Had there been no activity in this case between the time of our decision of February 19, 1979, and the institution of the present suit, our holding may have been different. However, the facts of the present case indicate that the widow and heirs of Parker Parker treated the dower interest as having been vested. The trial court found that the attorney for the appellant expressly recognized the widow’s dower interest in the hearing of November 10,1980. Therefore, we are unable to say that the holding of the trial court was clearly erroneous. It appears from the record that the trial court properly applied the principle of estoppel against the appellant. It is logical that the appellant would have asserted an objection against granting the widow her dower interest in a partial distribution of the estate if there had been an intention to object. We have held that the principle of estoppel applies when a person deliberately does an act and another person, with the right to do so, relied and acted upon this action. Gambill v. Wilson, 211 Ark. 733, 202 S.W.2d 185 (1947). It is true that a party claiming estoppel must prove that he has relied, in good faith to his detriment, on the conduct of the party against whom the estoppel is asserted. Christmas v. Raley, 260 Ark. 150, 539 S.W.2d 405 (1976). Also, see Bethell v. Bethell, 268 Ark. 409, 597 S.W.2d 576 (1980). One may waive a right when, with full knowledge of material facts, he does something which is inconsistent with the right or his intention to rely upon that right. Moseley v. State, 256 Ark. 716, 510 S.W.2d 298 (1974). In Continental Insurance Co. v. Stanley, 263 Ark. 638, 569 S.W.2d 653 (1978), we quoted with approval from the case of Sovereign Camp v. Putman, 206 S.W. 970 (Tex. Civ. App. 1918), as follows:
Waiver is the voluntary surrender of a right; estoppel is the inhibition to assert it from the mischief that has followed. Waiver involves both knowledge and intention; an estoppel may arise where there is no intent to mislead. * * * Waiver involves the acts and conduct of only one of the parties; estoppel involves the conduct of both. A waiver does not necessarily imply that one has been misled to his prejudice, or into an altered position; an estoppel always involves this element. * # * Estoppel arises where, by the fault of one party, another has been induced, ignorantly or innocently, to change his position for the worse in such manner that it would operate as a virtual fraud upon him to allow the party by whom he has been misled to assert the right in controversy.
There may have been no intent on the part of the appellant to mislead the widow but if she was misled by their failure to object to her claim of dower interest in that part of the estate which was distributed, she may claim estoppel as to the balance of her dower interest in the estate. It appears from the action of the appellant that she recognized the dower interest of the appellee. Therefore, we hold that the widow’s dower interest had vested prior to our decisions in the Stokes and Hess cases. The j udgment of the trial court is affirmed.
Affirmed. | [
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Jack Holt, Jr., Chief Justice.
The sole issue in this appeal is whether the trial court erred in dismissing appellant Evelyn Cagle’s personal injury suit with prejudice under ARCP Rule 37(d) after Cagle twice failed to attend scheduled depositions and further failed to pay certain costs and fees charged against Cagle for the discovery violations. Finding no abuse of discretion, we affirm.
On June 10, 1987, Cagle filed suit against appellee Joe Fennel, d/b/a Jose’s Bandito Club, Inc. Subsequently, she was notified that a deposition of her testimony was scheduled for September 14, 1987. Cagle did not appear. Counsel for both parties then rescheduled the deposition for September 25,1987. Cagle again failed to appear. Thereafter, appellee Fennel filed a motion to dismiss under ARCP Rule 37.
At a hearing on the motion, Cagle testified that she did not attend the September 14 deposition because she had previously called her attorney and left word with his secretary to change the deposition date. She also asked that they call her and “let [her] know.” However, Cagle merely assumed that anew date would be set and admitted that she never received notification of a change or resetting prior to September 14. Hence, the September deposition date had remained in effect.
Cagle testified that after the September 14 mixup, she was informed by her attorney that another deposition was scheduled for September 25. She stated that it was her fault that she did not attend the September 25 deposition as she had simply forgotten about it. The record does not indicate that the attorney attempted to remind Cagle of either deposition date. Such notice could possibly have prevented the problem before us now.
At the conclusion of the hearing on appellee Fennel’s motion to dismiss, the trial court ruled as follows:
I think this matter is one in which — it has been shown under the testimony and the exhibits, that this is not one time that Mrs. Cagle has failed to appear, but two times. Now Mrs. Cagle, I understand that, you know, everybody forgets things once in a while and there’s a lot of problems in raising children and getting down here for these depositions, but by the same token, this is a serious matter as far as the defendant is concerned . . . and under the law you have certain duties to perform____Now, the Court takes a very dim view of someone failing to appear for their depositions. Attorneys take their time out of the office, court reporters take their time out to come take these matters, and what greatly concerns me is, it didn’t just happen once, it happened twice. Now, when you have something scheduled you better make sure that your lawyer, and not the secretary, tells you, well, don’t come. You didn’t even check back to find out what had happened about your request to move it.
[Appellee’s counsel] wants the drastic remedy of me dismissing your lawsuit. I don’t know, he has some pretty good arguments for it to be dismissed in that this has happened not once, but twice. I feel that everybody ought to have their day in court and I hate to penalize people, but Fm giving you fair warning, if there is any problem with discovery in this case again and it’s your fault, Fm going to seriously take the matter up on dismissing this lawsuit. Now Fm going to order that you pay the expenses involved in this matter.
The trial court entered an order directing Cagle to reimburse appellee Fennel for his costs, expenses, and attorney’s fees in connection with the two deposition settings. The order further provided that in the event Cagle did not comply within thirty days following approval of appellee’s statement of costs, her suit would be subject to dismissal either with or without prejudice. Fees and costs in the amount of $500.00 were approved on January 14, 1988.
On February 12, 1988, Cagle filed a motion to vacate or modify which requested additional time in which to pay or that the costs be considered as a set-off. On April 1, 1988, some 78 days following the January 14 approval of Fennel’s costs and fees, the court entered an order finding that Cagle’s failure to appear at her depositions was unexcused and unjustified. The court denied the motion to vacate its earlier order and concluded that the suit should be dismissed with prejudice.
Rule 37(d) of the Arkansas Rules of Civil Procedure deals with the failure of a party to attend his or her own deposition and provides, in part:
[T]he court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B) and (C) of subdivision (b)(2) of this rule. In lieu of any other order or in addition thereto, the court shall require the party failing to act. . . to pay the reasonable expenses, including attorney’s fees, caused by the failure ....
Subdivision (b)(2)(C) provides the following sanction:
An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party. [Emphasis ours.]
Cagle’s sole argument is that the trial court abused its discretion in dismissing her suit with prejudice and in denying the motion to vacate. Citing authority from other jurisdictions, Cagle argues that a dismissal with prejudice would be warranted only where the failure to attend a deposition was willful, deliberate, or otherwise characterized by a conscious or culpable disregard of discovery obligations. She then points out that the facts do not demonstrate a willful or deliberate disregard of the discovery rules and that the court could have imposed a less severe sanction in light of Cagle’s financial and family problems.
Our rules do not require a finding of willful or deliberate disregard under the circumstances. In Mann v. Ray Lee Supply, 259 Ark. 565, 535 S.W.2d 65 (1976), this court affirmed an order for default judgment entered against a defendant for his failure to answer interrogatories propounded by the plaintiff. The defendant had failed to answer the interrogatories within the 15 days allowed by statute and an order was entered directing that he respond within 10 days or suffer sanctions including a possible default judgment. The defendant again failed to respond and the court entered a default judgment. In affirming the trial court, we found it significant that the judge had pointedly warned the defendant that failure to comply with the discovery obligations would subject him to certain statutory sanctions. That same consideration applies here.
While we recognize that dismissal with prejudice is a drastic sanction, the record demonstrates obvious concern by the trial judge that Cagle have her day in court and that she not be unnecessarily penalized. Accordingly, the judge first chose not to dismiss Cagle’s suit despite his finding that her failure to attend the scheduled depositions was unexcused and unjustified. Instead, the court conditioned continuation of the suit on the fair and reasonable requirement that Cagle reimburse appellee Fennel’s costs and fees, which is specifically permitted under Rule 37. Only upon Cagle’s failure to pay within the time prescribed or to present facts demonstrating a clear inability to pay within that time did the court proceed some 47 days later as warned in its earlier order; namely, the suit would be dismissed with prejudice.
In light of Cagle’s failure to attend either deposition, compounded by the subsequent failure to pay the costs and fees assessed by the judge in lieu of and to avoid dismissal, we find that the trial court acted well within its discretion in entering its final order dismissing Cagle’s suit with prejudice.
Affirmed.
Hickman, J., concurs in the result, finding it was the appellant’s lawyer’s fault.
Purtle, J., dissents. | [
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Tom Glaze, Justice.
On December 1, 1982, the City of Ashdown (pursuant to Act 9 of 1960 (Ark. Code Ann. §§ 14-164-201 to -224)) issued $700,000 in Industrial Development Revenue Bonds without an election by the voters of Ashdown. Proceeds of the bonds were used to purchase a trailer manufacturing enterprise in the city from Ashdown Manufacturing Company. The city then leased the manufacturing facility to FABCO of Ashdown under a lease agreement dated November 1, 1982. The city planned to use the lease payments to pay off the bonds.
In order to secure the insurance of the bonds, the State First National Bank of Texarkana, the trustee, was granted a first mortgage on the property occupied by FABCO and a first lien on all of the machinery, equipment and other personal property subject to the lease. The city wanted the Arkansas Industrial Development Commission (AIDC) to guarantee the bonds and to help with their sale. Before it would guarantee the payment of the bonds, AIDC obtained individual guaranties from appellees, L. N. and Frances Yates, Lacy and Lois Harris, and James and Marguerite Gunter. These agreements guaranteed the payment of principal and interest on the bonds as well as the payment of rental by FABCO. At the time of the execution of these guaranties, L. N. Yates was the president and principal shareholder of FABCO, and Lacy Harris and James Gunter were principal shareholders, officers and directors of Ashdown Manufacturing.
FABCO failed to make any payments under the lease agreement, but continued to operate its business. On September 30,1983, AIDC sent a letter to the Yateses, the Gunters and the Harrises, that FABCO was in default for the lease payment due June 30, 1983. The letter reflected that it was formal notice that within five days after receipt of the letter, a complaint in the form as that attached will be filed if AIDC does not receive full reimbursement. On April 1,1985, AIDC and the trustee filed suit against FABCO seeking payment of principal and interest on the bonds and lease payments due under the lease agreement. In the same lawsuit, AIDC sought recovery from the individual guarantors for the amount paid by AIDC under its guaranty — $997,897.20. This money was used to pay the principal and interest payments due on the bonds.
In May of 1985, FABCO filed for reorganization under Chapter 11 of the Bankruptcy Code. It was discharged in a Chapter 7 proceeding in May of 1986 and its assets were sold.
Both sides filed motions for summary judgment. The trial court granted the guarantors’ motion for summary judgment against AIDC holding (1) the bonds are tainted because they were not approved by the voters of the City of Ashdown as required by the Arkansas Constitution; and (2) AIDC failed to give proper notice of FABCO’s default to the guarantors; thus, the guarantors are released from liability. The trial court held that appellants’ complaint against the individual guarantors should be dismissed with prejudice. Also, the trial court ruled that neither side was to recover attorney’s fees. Appellants appeal from the trial court’s decision. Guarantors cross-appeal from the trial court’s order denying attorney’s fees.
If we affirm the trial court’s holding that the guarantors were not given proper notice, it will be unnecessary to address the constitutional issue raised in this appeal. Therefore, we dispose of appellants’ second argument first. The following pertinent provisions of the guaranty agreements must be reviewed in deciding the notice issue:
Section 2.2. If FABCO should at any time default in making any rental payments under the Lease when due, . . ., the Guarantor hereby unconditionally covenants that he will make such payments within five days after the receipt by the Guarantor of written notice from either the City, AIDC or the Trustee; provided, however, unless a default shall have occurred and be continuing under Section 3.3 hereof, attached to such notice shall be certified evidence that suit has been filed by either the Trustee, AIDC or the City against FABCO and Yates seeking to recover from FABCO and Yates such delinquent rental payments.
Section 2.3. Guarantor hereby guarantees to AIDC (a) the full and prompt payment of the principal of and premium, if any, on the Bonds when and as the same become due . . ., and (b) the full and prompt payment of interest on the Bonds when and as the same become due; provided, however, unless a default shall have occurred and be continuing under Section 3.3 hereof, either AIDC, the Trustee, or the City shall have filed suit seeking such payments of principal and interest from FABCO and Yates before Guarantor shall be liable hereunder . . ..
***
Section 3.3. In the case of default other than those under Sections 2.2 or 2.3 hereof, AIDC shall give to Guarantor written notice of such default, and if such default shall continue unremedied for thirty (30) days following receipt of such notice, AIDC shall have the same rights and remedies afforded by Section 3.2 above.
***
Section 3.5(a). The obligations of the Guarantor under this Guaranty Agreement are his separate and several obligations, and any person seeking to enforce same need not pursue any remedies which such persons may have against FABCO or Yates beyond the filing of suit against the same, or against any other person or exhaust any remedy against FABCO, Yates or any other person before proceeding hereunder, but may proceed at once against the Guarantor upon default as set forth above. (Emphasis added.)
First, under this issue, the appellants argue that the trial court erred in not distinguishing between the guaranty of the rental payments (section 2.2) and guaranty of the principal and interest on the Bonds (section 2.3). Specifically, the appellants argue that the guaranty of the principal and interest (section 2.3) has no notice requirement and cannot possibly be stricken for the supposed failure to give the required notice.
The appellants’ argument fails to address the appellees’ position and the trial court’s holding. The appellees admit that they received notice that FABCO was in default on September 30, 1983. This is not why the appellees argue that the appellants did not comply with the agreement. Instead, they argue that the appellants failed to comply with the guaranty agreement by not filing suit against FABCO first before seeking relief against the guarantors. Section 2.2 required appellees to have filed suit and the record clearly reflects no such suit had been filed. Appellants waited until April 1, 1985, or eighteen months before filing suit against the Gunters, the Harrises and FABCO and Y ates. By this time, FABCO was in bankruptcy.
Arkansas case law is well-settled that a guarantor is entitled to have his undertaking strictly construed and that he cannot be held liable beyond the strict terms of his contract. Inter-sport, Inc. v. Wilson, 281 Ark. 56, 661 S.W.2d 367 (1983); Lee v. Vaughn, 259 Ark. 424, 534 S.W.2d 221 (1976); National Bank of Eastern Arkansas v. Collins, 236 Ark. 822, 370 S.W.2d 91 (1963); Gulf Refining Co. v. Williams Roofing Co., 208 Ark. 362, 186 S.W.2d 790 (1945). In Inter-sport, this court held that, according to the better rule of law, a material alteration or departure from the contract of guaranty, without the guarantor’s consent, will discharge him whether or not he is prejudiced thereby.
Here, the trial court’s holding was based upon the parties’ guaranty requirement requiring the trustee, AIDC or the city to file suit first against FABCO and Yates before seeking relief against guarantors, the Gunters and Harrises. The materiality of that requirement is obvious from the reading of the parties’ agreement. It also is supported by the record. The trial court pointed out that FABCO actually defaulted on its lease-payment obligation in June of 1983, which was two years prior to its filing bankruptcy. Obviously, this undisputed fact met with the material purpose of the guaranty requirement relied upon by the Gunters and Harrises, namely, to require the obligees, the trustee and AIDC, to first place demand on FABCO, as the principal obligor, so as to satisfy or reduce any liability these guarantors would ultimately bear.
The Gunters and Harrises were not required to show they were actually prejudiced by the trustee’s, AIDC’s material failure or departure from complying with the guaranty requirements. See Intersport, Inc., 281 Ark. 56, 661 S.W.2d 367. Rather, it is AIDC’s and the trustee’s burden to show their material breach of the parties’ agreement did not result in any harm or damages to the Gunters and the Harrises. Accordingly, we uphold the trial court’s finding that the appellants failed to follow the conditions of the parties’ agreement and holding the guarantors should be released.
Both sides contend on appeal that the trial court erred in denying them attorney’s fees. Of course, appellants are clearly not entitled to attorney’s fees under Ark. Code Ann. § 16-22-308 (Supp. 1991), since they have not prevailed in their suit. Appellees, however, claim their entitlement to such fees as prevailing parties. Section 16-22-308 specifically provides for reasonable attorney’s fees to the prevailing party in a civil action involving breach of contract but does so subject to the terms of the contract. Here, section 2.6 of the parties’ agreement provides, “ [Gjuarantor agrees to pay all costs, expenses and fees, including all reasonable attorney’s fees which may be incurred by AIDC in enforcing or attempting to enforce this Guaranty Agreement following any default on the part of the Guarantor hereunder, whether the same shall be enforced by suit or otherwise.”
We have held, of course, that the guarantors here have not defaulted, so appellants are not entitled to attorney’s fees under the above contract. On the other hand, appellees in no way waived their rights to attorney’s fees under the circumstances here since they did not default and, in fact, prevailed in their argument by showing appellants had failed to comply with the parties’ agreement. Accordingly, we further hold that the appellees are entitled to reasonable attorney’s fees under § 16-22-308, and remand this cause to the trial court to determine the amount.
Hays and Brown, JJ., dissent. | [
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Robert H. Dudley, Justice.
On June 16,1985, appellant was arrested for battery in the first degree. He remained in jail until July 23, 1985, when he was sent to the penitentiary on an unrelated charge. Under A.R.Cr.P. Rule 28.1(b) the State had twelve (12) months from the date of his arrest in which to try appellant. Floyd v. State, 280 Ark. 226, 656 S.W.2d 701 (1983). The trial court scheduled appellant’s trial for June 9,1986, which was clearly within the time limit for a speedy trial. However, another trial involving two counts of capital murder began on June 2,1986. See Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). On June 6, it appeared to the, trial judge that the Gardner trial would carry over into the week of June 9. Since the Gardner trial was already taking place in the only courtroom equipped for jury trials, the trial judge entered an order continuing the appellant’s case. His case was rescheduled for June 26, 1986, which was ten (10) days over the twelve (12) month limit. Appellant objected and also filed a speedy trial motion. The motion was denied and, on June 26, appellant pleaded guilty. He then filed a Rule 37 petition for post-conviction relief alleging a speedy trial violation and ineffective assistance of counsel. The trial court denied relief. We affirm.
A.R.Cr.P. Rule 28.3(b) provides that a period of delay may be excluded in computing time for trial when there is docket congestion caused by exceptional circumstances and the trial court enters an order setting out the exceptional circumstances. Here, the trial court entered an order on Friday, June 6, explaining that it appeared that the Gardner capital murder trial would carry over into the week of June 9. This constitutes the type of an order contemplated by Rule 28.3(b). It was sufficient to exclude the period from June 9 until June 26, the date of the next criminal docket.
The appellant argues that the time should not be excluded because the Gardner case actually ended on Saturday, June 7, and the courtroom was in fact open on June 9. The argument is without merit. The action of the trial judge in rescheduling appellant’s case due to an exceptional circumstance was reasonable at the time taken. The fair administration of justice was best served by postponing appellant’s trial to the next criminal docket, rather than having appellant, his attorney, and a whole jury panel come in to see if a courtroom might be available.
Appellant also argues that there were days during April and May 1986 when the courtroom was open, and he could have been tried on one of those days. The short answer to that argument is that appellant never asked to be tried during April or May and his speedy trial time did not expire until June 16. In summary, the appellant was not denied a speedy trial.
Appellant’s next point of appeal is that he was denied effective assistance of counsel since his attorney did not petition this court for a writ of prohibition based upon the denial of speedy trial. The argument is wholly without merit. Appellant’s right to a speedy trial was not abused. Certainly, counsel was not ineffective because he did not make an argument which had no merit. See Strickland v. Washington, 466 U.S. 668 (1984).
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Jack Holt, Jr., Chief Justice.
In this action, the appellants, E.J. and Billie McGuire, challenge the trial court’s ruling that restrictive covenants limiting the use of property in the Vista Hills and Loch Lomond Additions of Van Burén, Arkansas, to single-family residences are applicable to the McGuires’ property, Tract 7, and question the trial court’s refusal to issue an order enjoining the appellees, who are property owners in the Vista Hills Addition and the adjoining Loch Lomond Addition, from interfering with the sale of the property. In addition, they take issue with the trial court’s failure to declare that the covenants do not prohibit a residential facility for the mentally retarded or developmentally disabled. In the alternative, the McGuires argue that if the covenants do encompass residential facilities for the mentally retarded or developmentally disabled, the court should have declared that State enforcement of the covenants denies such persons equal protection of the law. We find no error and affirm the judgment of the trial court.
In the 1950’s Vista Acres, Inc., bought a 600 acre tract of land in Van Burén, Arkansas, for development of residential subdivisions and lots. In 1960, Vista Acres began developing a portion of the tract into two residential subdivisions, the Vista Hills and Loch Lomond Additions. Vista Acres developed the two subdivisions in stages.
On April 15,1960, Vista Acres filed a plat of Lots 1 through 62, Vista Hills Addition, and a bill of assurance for the platted lots (except Lot 16) containing, in pertinent part, the following language:
RESTRICTIONS FOR VISTA HILLS ADDITION TO THE CITY OF VAN BUREN, ARKANSAS
3. All lots in Vista Hills Addition shall be used for residential purposes only. No building shall be used or structure shall be erected, altered, placed, or permitted on any lot other than one single family dwelling unit, private garages for the occupants’ vehicles, and other out buildings incidental to the residential use of the lots.
On September 13, 1961, Vista Acres filed a plat of Lots 63 through 81 and 83 through 90, Vista Hills Addition, and Lots 1 through 12, Loch Lomond Addition. On this date, Vista Acres also filed a bill of assurance for Lots 63 and 90, Vista Hills Addition, and Lots 1 through 12, Loch Lomond Addition, containing essentially the same restrictions as the first bill of assurance.
On November 20, 1961, Vista Acres filed a plat for Lots 91 through 99, Vista Hills Addition, with a notation that Lots 91 through 99 are subject to all restrictions contained in the bills of assurance applying to Lots 1 through 15 and 17 through 62, Vista Hills Addition. The plat contains no acknowledgment.
On January 12,1962, Vista Acres filed an additional bill of assurance for Lots 63 through 90, Vista Hills Addition, and Lots 1 through 12, Loch Lomond Addition, containing virtually the same restrictions as the first two bills of assurance.
From March 16, 1962, to February 24, 1965, Vista Acres filed plats for Lots 13 through 21, Loch Lomond Addition, and Lots 100 through 102, and Tracts 2 through 6, Vista Hills Addition. These unacknowledged plats incorporate by reference the restrictions contained in the bills of assurance.
On December 13,1965, Vista Acres filed a plat for Tract 7, Vista Hills Addition, containing the following notation:
RESTRICTION
Tract 7 shall be limited to a maximum of three (3) residential dwellings.
Restrictive covenants are filed as separate documents. The covenants as filed for Lots 1 through 99, Vista Hills Addition, Lots 100 through 102, Vista Hills Addition, Lots 103 through 105, Vista Hills Addition, and Lots 1 through 21, Loch Lomond Addition, shall be applicable to Tract 7, Vista Hills Addition.
The plat contains no acknowledgment. Vista Acres did not file a bill of assurance for Tract 7.
On the same day, Vista Acres conveyed by corporation deed Tract 7, Vista Hills Addition, to E.K. Ragge, et ux. The corporation deed contains the following notation:
Tract 7, Vista Hills Addition to the City of Van Burén, Arkansas, as per plat filed December 13,1965. Subject to recorded easements and restrictive covenants.
On September 27,1972, the Ragges conveyed Tract 7, Vista Hills Addition, to Albert Williams, et ux. On July 31, 1974, the Williamses conveyed the property to Ed and Joyce Hopkins. On July 2, 1976, Ed and Joyce Hopkins conveyed the property to Joyce Hopkins. The deeds for these transfers do not refer to restrictive covenants.
On November 5, 1976, Joyce Hopkins executed and filed a document in the office of the Circuit Court of Crawford County entitled “Removal of Restriction by Sole Owner,” stating that the restrictive covenants contained in the plat for Tract 7 are hereby revoked and rescinded.
On July 14, 1978, Joyce Hopkins conveyed Tract 7 to appellants E.J. and Billie McGuire by a warranty deed containing no restrictive covenants.
Thereafter, the McGuires built a 17,000 square foot, four-level combination home and corporate headquarters on the property. In December of 1984, the McGuires contracted to sell the property to Mr. and Mrs. Smithson for $700,000.00. The Smithsons intended to convert the property into a residential care facility for the mentally retarded and developmentally disabled. When the Smithsons’ intended use became known, opposition in the neighborhood developed. At the conclusion of a public meeting where residents in the Vista Hills and Loch Lomond Additions expressed opposition to the sale of the property for use as a residential care facility, Mr. Smithson announced that he was abandoning his plan to use the property for a residential facility. Subsequently, the Smithsons breached their contract to buy the McGuires’ property.
After this transaction fell through, the McGuires found another prospective purchaser, Oman Ising, who was interested in using the property for purposes similar to that of the Smith-sons. Neighborhood opposition continued. Thereafter, Ising backed out of the proposed transaction. The McGuires have been unable to sell their property.
On June 10, 1985, the McGuires filed a class action suit against the appellees alleging among other things that (1) “[n]o restrictive covenants were ever established in a manner author ized by law; (2) [defendants have no standing to challenge Plaintiffs sale of Tract 7 or the development of Tract 7 in a manner inconsistent with the restrictive covenants for the Vista Hills and Loch Lomond Additions; and (3) [defendants have lost their right to enforce any restrictive covenants for Tract 7 by laches or acquiescence.” The McGuires prayed (1) that the court enter a declaratory judgment that the restrictive covenants for the subdivisions are not applicable to Tract 7 or, in the alternative, a decree cancelling the restrictive covenants because of changed conditions; and (2) that the court enter an order enjoining the appellees from interfering with the McGuires in their attempts to sell Tract 7.
In an amended complaint, the McGuires made two additional allegations:
(1) State enforcement of restrictive covenants through the courts to prohibit residential facilities for the mentally retarded or other developmentally disabled denies such mentally retarded or developmentally disabled persons equal protection of the laws in violation of the fourteenth amendment, the Constitution of Arkansas, and the public policy of Arkansas; and
(2) Even if the restrictive covenants were held applicable to Tract 7, such restrictive covenants do not prohibit a residential facility for mentally retarded or developmentally disabled.
The McGuires also asked that the trial court enter a declaratory judgment that the restrictive covenants do not prohibit a residential facility for the mentally retarded or developmentally disabled.
At trial, Tommy Van Zant, the developer of the Vista Hills and Loch Lomond Additions, testified that he and the other partners in the development never intended Tract 7 to be used for other than single-family residential purposes.
In its decree, the trial court denied the McGuires’ request for a declaratory judgment that the restrictive covenants are not. applicable to Tract 7. In doing so, it concluded that the restrictive covenants are applicable to Tract 7 for the following reasons:
(1) There are no commercial enterprises or other buildings in the Vista Hills and Loch Lomond Additions.
(2) The McGuires purchased and acquired Tract 7 in a residential neighborhood fully aware of the restrictive covenants filed of record and the nature of the subdivisions being residential single-family dwellings.
(3) There is no question that the owner’s scheme or plan was to develop residential subdivisions with single-family dwellings.
(4) Joyce Hopkins’ action in endeavoring unilaterally to remove the restrictive covenants was null and void and of no effect in that there is no evidence that anyone involved in the litigation received notice of her action.
In denying the McGuires’ request for a decree cancelling the restrictive covenants, the trial court found that there was no proof of changed conditions or any other reason to cancel the covenants.
The trial court declined to make a ruling concerning the McGuires’ contentions that (1) State enforcement of restrictive covenants through the courts to prohibit residential facilities for the mentally retarded or other developmentally disabled persons denies such mentally retarded or developmentally disabled persons equal protection of the laws in violation of the fourteenth amendment, the Constitution of Arkansas, and the public policy of Arkansas and that (2) the restrictive covenants do not prohibit a residential facility for the mentally retarded or developmentally disabled on the grounds that the McGuires failed to present sufficient proof on these two issues and failed to establish that “there is presently a sale, program, or proposal of this kind involved between the parties.”
Finally, the court denied the McGuires’ request for injunctive relief, finding as follows:
(1) The respondent’s desire to keep the residential single-family scheme of the neighborhood intact is a legitimate concern.
(2) Respondents took no actions other than expression of their opinion at public meetings and in articles printed by the news media against the sale of the McGuires’ property for use as a facility for mentally handicapped persons.
(3) They have a right to freedom of expression and freedom to organize to do so.
(4) The proof in the case does not indicate that the respondents have prevented the sale of petitioner’s property. The prospective buyers have, for their own reasons rather than for any alleged prevention by respondents, withdrawn from the purchase of the property.
(5) The petitioners own and occupy their property and are free to sell or dispose of it without interference from anyone. That, however, in this case the opposition of respondents is not found to be such an interference as would prevent a sale or disposition by petitioners of their property.
(6) The petitioners have not suffered or shown any irreparable harm imminent or occasioned by the respondents.
From the trial court’s final decree, the McGuires appeal.
I. DECLARATORY RELIEF.
A. THE RESTRICTIVE COVENANTS ARE NOT APPLICABLE TO TRACT 7.
The McGuires contend the trial court erred in failing to grant a declaratory judgment that the restrictive covenants are not applicable to Tract 7. We disagree.
On appeal we consider the evidence in the light most favorable to the appellee. Constant v. Hodges, 292 Ark. 439, 730 S.W.2d 892 (1987). Although we try chancery cases de novo on the record, we do not reverse a finding of fact by the chancellor unless it is clearly erroneous. Milligan v. General Oil Co., 293 Ark. 401, 738 S.W.2d 404 (1987).
“Courts do not favor restrictions upon the use of land, and if there is a restriction on the land, it must be clearly apparent.” Harbour v. Northwest Land Co., 284 Ark. 286, 681 S.W.2d 384 (1984). See also Shermer v. Haynes, 248 Ark. 255, 451 S.W.2d 445 (1970). In construing covenants, the intention of the parties, as shown by the covenants, shall govern. White v. Lewis, 253 Ark. 476, 487 S.W.2d 615 (1972).
The ordinary method of establishing restricted districts when new subdivisions are surveyed and platted is to file a plat and bill of assurance, whereby the owner obligates himself not to convey except in conformity with the restrictions imposed in the bill of assurance. Hays v. Watson, 250 Ark. 589, 466 S.W.2d 272 (1971); Moore v. Adams, 200 Ark. 810, 141 S.W.2d 46 (1940). However, it is not always essential that there be a bill of assurance filed with the plat of the subdivision; the restricted use may be annexed to the conveyances of the land. Harbour, supra. The theory upon which these restrictions are imposed is that one taking title to land with notice that it is subject to restrictions upon its use will not, in equity and good conscience, be permitted to violate its terms. Moore, supra.
Where no general plan of development exists, restrictive covenants in either a bill of assurance or a deed conveying the land are not enforceable. Constant, supra. See Harbour, supra. The test of whether such a plan exists is whether substantial common restrictions apply to all lots of similar character or similarly situated. Id.
The McGuires do not contest the trial court’s finding that a general plan of development for the Vista Hills Addition exists. Instead, they argue that the restrictive covenants in the three bills of assurance filed on April 15, 1960, September 13, 1961, and January 12,1962, are not applicable to Tract 7 for the following reasons: (1) the bills were not executed by the owners as required by Ark. Code Ann. § 18-12-103 (1987), and, therefore, the bills and restrictive covenants contained therein are invalid; and (2) the plat filed for Tract 7 was not acknowledged as required by Ark. Code Ann. § 16-47-101 (1987), and, therefore, the developer’s attempt in the plat to incorporate by reference the covenants contained in the bills of assurance filed on April 15, 1960, September 13, 1961, and January 12, 1962, was invalid.
The McGuires first argue that the bills of assurance and restrictions are invalid because the bills were not executed by all of the owners of the property.
Ark. Code Ann. § 18-12-103 provides as follows:
No restrictive or protective covenants affecting the use of real property nor any instrument purporting to restrict the use of real property shall be valid or effective against a subsequent purchaser or owner of real property unless the restrictive or protective covenants or instrument purporting to restrict the use of the real property is executed by the owners of the real property and recorded in the office of the recorder of the county in which the property is located.
The fee owner of the two subdivisions, Vista Acres, Inc., executed the three bills of assurance in question. It is the McGuires’ contention, however, that the failure of the mineral owners to join in the execution or filing of the bills of assurance renders the bills invalid. We decline the invitation to construe the phrase contained in § 18-12-103, “owners of said real property,” to require mineral owners to join in the execution of bills of assurance before covenants can affect the use of real property. The requirements of the code provision were sufficiently met by the execution by Vista Acres of the bills. The McGuires’ argument is without merit.
The McGuires’ contention that no covenants are applicable to Tract 7 because the plat filed with the circuit court was not acknowledged is also meritless.
An instrument affecting real estate must be acknowledged before it shall be admitted to record. Ark. Code Ann. § 16-47-101 (1987). No instrument purporting to restrict the use of real property shall be valid or effective against a subsequent purchaser unless the instrument is recorded. Ark. Code Ann. § 18-12-103 (1987) [originally enacted as 1965 Ark. Act 395]. Prior to the enactment of Act 395, we held that restrictive covenants in an instrument were binding upon a subsequent purchaser with actual knowledge even though the instrument was not properly acknowledged or recorded. See Prince v. Alford, 173 Ark. 633, 293 S.W. 36 (1927). We have not considered whether this holding is still sound in light of Act 395. However, we need not consider this issue in the case at bar since the McGuires were placed on notice independent from the unacknowledged plat.
A subsequent purchaser of land is charged with notice of restrictions contained in every recorded deed in his chain of title. See 1 G. Thompson, Commentaries on the Modern Law of Real Property, § 3170 (Repl. 1962). See also Webb v. Robbins, 77 Ala. 176 (1884); Morris v. Tuscaloosa Mfg. Co., 83 Ala. 565, 3 So. 689 (1888). A landowner is bound by restrictions that appear in a properly recorded deed in his chain of title even though the instrument conveying title to him does not contain the restrictions. See Buffalo Academy of the Sacred Heart v. Boehm Bros., Inc., 267 N.Y. 242, 196 N.E. 42 (1935); Oak Lane Realty Corp. v. Trinity Evangelical Church, 13 Misc. 2d 708, 172 N.Y.S.2d 95 (1958); Cleveland Realty Company v. Hobbs, 261 N.C. 414, 135 S.E.2d 30 (1964).
A properly acknowledged and recorded deed in the McGuires’ chain of title from Vista Acres to E.K. Ragge, et ux., contains the following notation:
Tract 7, Vista Hills Addition to the City of Van Burén, Arkansas, as per plat filed December 13,1965. Subject to recorded easements and restrictive covenants. [Emphasis added.]
In light of evidence presented at trial that the developer of the Vista Hills Addition intended Tract 7 to be subject to single-family-residential use restrictions, we conclude that the phrase, “[s]ubject to recorded easements and restrictive covenants,” encompasses single-family-residential use restrictions contained in plats or bills of assurance for the Vista Hills Addition. The only instruments for the Vista Hills Addition explicitly containing such restrictions are the bills of assurance filed on April 15,1960, September 13, 1961, and January 12, 1962, all of which were properly acknowledged and recorded.
Accordingly, we hold that the language in the deed in the McGuires’ chain of title from Vista Acres to the Ragges effectively incorporates the single-family-residential use restrictions in these bills of assurance. Thus, it is immaterial that the plat for Tract 7 was not acknowledged or did not validly incorporate the restrictions. The McGuires are charged with constructive notice of these restrictions and are bound by them notwithstanding the fact that the deed conveying title to the McGuires does not contain any reference to restrictive covenants. See Buffalo Academy of the Sacred Heart, Inc., supra; Oak Lane Realty Corp., supra; Cleveland Realty Company, supra; Morris, supra; Webb, supra.
B. THE RESTRICTIVE COVENANTS DO NOT PROHIBIT THE USE OF TRACT 7 AS A RESIDENTIAL FACILITY FOR THE DEVELOPMENTALLY DISABLED.
The McGuires argue that the trial court erred in failing to grant a declaratory judgment that the restrictive covenants limiting the use of their property to single-family residences do not prohibit a residential facility for the mentally retarded or developmentally disabled. We have not addressed the question of whether and under what circumstances a residential care facility or group home for the mentally retarded or developmentally disabled can be considered a residence or, more narrowly, a single-family residence. However, we do not consider this point on appeal because, as the trial court found, the McGuires did not present proof at trial that at the present time there is a proposed sale of the property for use as a residential care facility. Without detailed information concerning a pending sale of the property and the specific use for which it will be purchased, any ruling on whether the restrictive covenants applicable to the McGuires’ property prohibit its use as a residential facility for the developmentally disabled would be subject to speculation and conjecture, especially in light of the analysis required by the applicable authority of other jurisdictions which have dealt with this question. Jackson v. Williams, 714 P.2d 1017 (Okla. 1985); Clark v. Manuel, 463 So.2d 1276 (La. 1985); Gregory v. Dept. of Mental Health, 495 A.2d 997 (R.I. 1985); City of Livonia v. Dept. of Social Services, 423 Mich. 466, 378 N.W.2d 402 (1985); Omega Corp. of Chesterfield v. Malloy, 228 Va. 12, 319 S.E.2d 728 (1984); J.T. Hobby and Son, Inc. v. Family Homes, Etc., 46 N.C. App. 741, 266 S.E.2d 32 (1980). We will not undertake to declare the legal effect of case law upon a set of facts which is hypothetical, future, contingent, or uncertain. See Andres v. First Arkansas Development Finance Corp., 230 Ark. 594, 324 S.W.2d 97 (1959). See also Caldwell v. Gurley Refining Co., 755 F.2d 645 (8th Cir. 1985); Cummings v. City of Fayetteville, 294 Ark. 151, 741 S.W.2d 638 (1987).
Moreover, even if the Smithsons or Oman Ising presently had a contract with the McGuires to buy the property for precisely the use described in the record, we would not reach the issue because the McGuires failed to present evidence at trial as to (1) the extent of the educational training or medical and nursing care that the proposed center would provide, (2) the function of a housekeeper, if one would be provided, and (3) whether the counselors would serve on a rotating or permanent basis. See Jackson, supra; Clark, supra; Gregory, supra; City of Livonia, supra; Omega Corp. of Chesterfield, supra; J.T. Hobby and Son, Inc., supra. In sum, we do riot have the appropriate facts before us to resolve this issue.
C. STATE ENFORCEMENT OF RESTRICTIVE COVENANTS TO PROHIBIT RESIDENTIAL FACILITIES FOR THE MENTALLY RETARDED OR DEVELOPMENTALLY DISABLED DENIES SUCH PERSONS EQUAL PROTECTION OF THE LAWS IN VIOLATION OF THE FOURTEENTH AMENDMENT OF THE CONSTITUTION.
The McGuires argue that they are entitled to a declaratory judgment that enforcement of restrictive covenants to prohibit residential facilities for the mentally retarded or developmentally disabled denies such persons equal protection of the law. Because they have not supported this point on appeal with convincing authority or argument, we do not address it.
In support of their contention, they make the following statements:
The decision by the United States Supreme Court in Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), must be considered when examining the enforcement of restrictive covenants to prohibit residential facilities for the developmentally disabled. In Shelley the Court invalidated a private Restrictive Covenant that discriminated on the basis of race because judicial enforcement of the covenant would constitute state action within the meaning of the 14th Amendment. In this regard, the case of City of Cleburne, Texas v. Cleburne Living Center, Inc., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), is helpful. There the United States Supreme Court held that requiring a special use permit for a proposed group home for the mentally retarded violated the equal protection clause in that the requirement, in the absence of any rational basis in the record for believing that a group home would pose any special threat to the city’s legitimate interest, appeared to rest on an irrational prejudice against the mentally retarded. The zoning ordinance as applied was, therefore, struck down.
The McGuires cite no other cases besides Kraemer and City of Cleburne in support of their equal protection argument. These cases are not germane to the facts of the instant case. Moreover, they make no convincing argument in support of their position. We do not consider arguments on appeal that are unsupported by convincing argument or authority, unless it is apparent without further research that they are well taken. Cummings, supra.
II. INJUNCTIVE RELIEF.
The McGuires contend that the trial court erred in refusing to issue an order enjoining the appellees from interfering with the sale of the property because (1) no valid restrictive covenants were ever adopted in accordance with applicable law; (2) appellees have lost their rights to enforce the covenants as to Tract 7 by abandonment or laches and acquiescence; (3) the restrictive covenants do not prohibit the use of Tract 7 as a residential facility for the developmentally disabled; and (4) the appellees have no standing to enforce the restrictive covenants as to Tract 7. For the reasons stated below, we do not address this argument.
The McGuires fail to explain how their contentions relate to the issue they have asked us to consider: Whether the trial court erred in denying their request for any injunction. Moreover, they do not address the trial court’s findings regarding the injunction. Accordingly, we will not consider their contention that the trial court erred in refusing to issue an order enjoining the appellees from interfering in the sale of the property or their arguments regarding standing and laches in support of this contention. We note that we addressed the other two arguments in section I of this opinion.
It appears that the McGuires also ask us to rule on the issues of standing and laches for purposes unrelated to the trial court’s failure to grant an injunction. However, they did not ask the trial court nor do they ask this court for declaratory relief on these issues. Instead, they simply alleged at trial and now allege on appeal that the appellees lack standing and are barred by abandonment or laches and acquiescence. In addition, they do not link the issues of standing and laches to their requests for declaratory relief on appeal, nor did they at the trial level. Under the circumstances, we do not consider these issues.
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George Rose Smith, Justice.
This appeal is from an order revoking the suspended sentence of Arthur Dabney, Jr., on the ground that his theft of a pistol was a breach of one condition of his probation, that he not commit any violation of state law punishable by imprisonment. For reversal Dabney argues that the evidence introduced at the revocation hearing was obtained as a result of an illegal arrest and therefore cannot constitutionally support the revocation. The Court of Appeals transferred the case to us under Rule 29 (4) (b).
There are two fatal flaws in Dabney’s argument. First, when the proof is viewed most favorably to the trial court’s decision, as is our practice, the arrest was not illegal. Dabney and Willie Washington were employed in the service department of the Osceola Motor Company. Before noon on January 7, 1982, they both saw the pistol in a car that Washington was cleaning. During the lunch hour the pistol disappeared. Dabney had spent that hour with Betty Nance, with whom he sometimes stayed. Upon Dabney’s return Washington asked him if he had seen the missing pistol. Dabney said he had not seen it. Washington then reported the theft to the service manager. The police were called. They made an investigation, concluded that only Dabney or Washington could have taken the pistol, and decided to believe Washington because he had reported the theft.
As a result of the investigation Dabney was arrested at about 5:00 p.m. the same day. Washington’s account of the incident constituted probable cause for Dabney’s arrest, even though the pistol had not yet been found. We attach little weight to Dabney’s having also been served with a warrant issued months earlier upon a revocation petition, for Officer Riney testified that Dabney was in custody because he was being investigated for the theft of the pistol. An hour or so after the arrest both Dabney and Betty Nance signed a consent to the search of her house, where the pistol was found hidden. Ms. Nance denied knowledge of its presence. At the revocation hearing Dabney sought to shift the blamé to Washington by testifying that he received the pistol from Washington, wrapped in towels, and left it at Betty Nance’s house when he found out what it was. The trial judge evidently did not credit that explanation.
Second, even if Dabney’s original statements and consent to the search were consequences of an illegal arrest, the exclusionary rule does not apply strictly in a proceeding to revoke probation or parole. Morrissey v. Brewer, 408 U.S. 471 (1972); Harris v. State, 270 Ark. 634, 606 S.W.2d 93 (Ark. App. 1980); and dicta in Schneider v. State, 269 Ark. 245, 254, 599 S.W.2d 730 (1980). As pointed out in Harris, that the officers act in good faith is sufficient at a revocation hearing to permit the introduction of evidence not admissible at a formal trial. See Ark. Stat. Ann. § 41-1209 (3) (b) (Repl. 1977); Lockett v. State, 271 Ark. 860, 611 S.W.2d 500 (1981). The reason, of course, is to provide the trial judge with complete bearing on the advisability of revoking probation. Here it does not appear that the officers were primarily seeking revocation; they were carrying out their routine duty to investigate a reported theft. It has been observed that in such a situation the exclusion of illegally obtained evidence from a prosecution of the new offense should ordinarily be a sufficient deterrent to unlawful police activity. State v. Davis, 375 So.2d 69 (La. 1979). Here we perceive no bad faith on the part of the police.
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Humphreys, J.
Appellant was indicted in the circuit court of Crawford County for burglary and grand larceny jointly with James Wallace. Upon the trial he was acquitted of burglary, but convicted of grand larceny, and adjudged to serve a term of one year in the State penitentiary as a punishment therefor. From the judgment of conviction he has duly prosecuted an appeal to this court.
Appellant seeks a reversal of the judgment upon several alleged assignments of error.
The first assignment is that the court overruled his motion for a continuance. The motion was filed the day before the trial, and stated that Adam Shaffer, temporarily absent from the county, would swear that on the night of the robbery he had a conversation with appellant about 12:30 o’clock a. m., after which they parted and appellant went east in the direction of his home. The indictment was returned on March 11,1930, and although appellant was not tried until the 20th day of the month subpoena was not issued for the witness. It does not appear that the witness left the State before the arrest of appellant, nor was it made to appear that the testimony of the absent witness could be had if a continuance was granted. The court did not abuse his discretion in overruling the motion which failed to show that appellant used diligence to get the witness and that a continuance would result in securing the testimony. Hunter v. State, 180 Ark. 613, 22 S. W. (2d) 40.
The next assignment is that the instructions given by the trial court were erroneous. A general objection was made to each instruction, but an examination of them reveals that none of them are inherently wrong, and, when read together, correctly declared the law applicable to the facts in the case. It would extend this opinion and could serve no useful purpose to set out the instructions.
The next assignment is that the testimony of appellant’s alleged accomplice was not substantially corroborated.
James Wallace, the alleged accomplice, testified in substance, that he and appellant agreed to burglarize McKinney’s store in Yan Burén on the night of March 1,1930; that a little aftér one o’clock a. m. he entered the store through a window in the rear thereof which they broke with a hammer and handed certain goods and merchandise out to appellant; that as they were leaving they saw the night watchman approaching and dropped a part of the goods and that later the witness hid those which were not dropped near the river. The goods which were dropped were discovered the following morning and those hidden were pointed out to the officers by James Wallace.
Mrs. George Knight testified that James Wallace and Allen Taylor each came to her restaurant on the night in -question inquiring for the other and that about midnight she saw them together near the depot.
George Knight, the night watchman, testified that he saw James Wallace and Allen Taylor together about 2:30 o ’clock a. m. on the night in question going towards the back of McKinney’s store.
Appellant’s defense was that he was not with James Wallace on the night in question and that he did not assist him in burglarizing the McKinney store. The testimony of the Knights sufficiently corroborated the testimony of the alleged accomplice to connect appellant with the crime, and therefore to support the verdict. Powell v. State, 177 Ark. 938, 9 S. W. (2d) 583.
The next assignment is that the prosecuting attorney was permitted to inquire from witnesses who had testified to appellant’s good character whether it was not a fact that several other good hoys had gone wrong. Counsel for appellant had proved that he was a good boy on cross-examination, and we do not see how any prejudicial error resulted to him simply because the prosecuting attorney asked them whether they had not known, of other good boys going wrong.
No error appearing, the judgment is affirmed. | [
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Per Curiam.
Appellant, Thomas Kevin Taylor, by his attorney, Matt Keil, seeks reconsideration of his Motion for Rule on Clerk which we denied because the attorney did not admit error. In this petition he admits error in filing untimely notice of appeal. See Ark. R. App. P. 5(a).
We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Jack Holt, Jr., Chief Justice.
At issue is the proper procedure under the Arkansas Code for publication of municipal ordinances.
This dispute arose from the following scenario: the appellant, Don Phillips, owned two adjacent houses in Eureka Springs, Arkansas. One house was used as a bed and breakfast; the other as a tourist accommodation establishment. They were located in R-l Victorian Residential and R-2 Contemporary Residential zones.
Mr. Phillips and other property owners petitioned the City Planning and Zoning Commission to rezone these areas from R-1 and R-2 to C-3 Quiet Commercial Use Zone by the enactment of Ordinance No. 1380. Although the Commission did not recommend rezoning, the City Council voted 4 to 2 in favor of Ordinance No. 1380.
Rezoning Ordinance No. 1380 was again addressed by the City Council approximately one month later. At that meeting Carolyn Green, an affected property owner, spoke on behalf of the opponents of the rezoning ordinance. The ordinance was again put to a vote, and the council voted 4 to 2 in favor. A motion was made to suspend the rules so that the ordinance could be read a third time; another vote resulted in a 3 to 3 tie, with the Mayor casting his deciding vote in favor of the ordinance.
Following the meeting, the Mayor, City Attorney and Aldermen discussed the possibility that a three fourths vote might be needed to pass the ordinance because the petition in opposition to rezoning was supported by owners of twenty percent of the affected property. As a result of that discussion, Ordinance No. 1389 was drafted, repealing Ordinance No. 1380, and the City Clerk and the newspaper were told to withhold publishing Ordinance No. 1380.
The appellant, Don Phillips, noting that the newspaper had not published Ordinance No. 1380, decided to cause the notice of the ordinance to be published. The paper at first refused to publish the ordinance because of the city’s earlier directions, but ultimately published the ordinance anyway. Mr. Phillips paid the cost of publication.
Mr. Phillips next tried to get a business license for an art studio on his property. The Mayor’s office refused because the property was still zoned residential.
Six months later, Mr. Phillips sold the property and then filed suit in Carroll County Chancery Court against the City of Eureka Springs, the Mayor and the City Aldermen. He asked for a declaratory judgment declaring Ordinance No. 1380 valid and Ordinance No. 1389 to be declared an invalid attempt to rezone property without following proper procedures.
After taking testimony and exhibits on this matter, the chancery court declared that Ordinance No. 1380 was invalid. The chancery court’s order stated:
2. That Plaintiffs’ cause of action is predicated on whether Ordinance No. 1380 was validly published in the Eureka Springs Times Echo on March 8, 1990.
3. That after passage of Ordinance No. 1380 by a four to three vote, the officials of the City of Eureka Springs had reason to believe its passage required a three/fourths vote rather than a simple majority vote.
4. That Ordinance No. 1380 had been submitted to the Eureka Springs Times Echo for publication according to law and would become effective 30 days after publication; and that the City Clerk of Eureka Springs, the individual responsible to see that ordinances passed by the City Council are published, contacted the newspaper to keep the same from being published until the matter of its passage could be addressed by the City Council and from her testimony, she thought she had been successful and was successful for a few weeks.
5. That Plaintiff Don Phillips was aware of the City’s concern regarding the passage of Ordinance No. 1380 and of its efforts to delay publication until the matter could be resolved.
6. That although Plaintiffs could have taken actions which would have caused the City to publish the ordinance, Plaintiff Phillips, on his own initiative and without the consent of the City, caused the ordinance to be published in the newspaper.
7. That because of Plaintiff Phillips’ unilateral actions in causing Ordinance No. 1380 to be published, the Plaintiffs’ claims is [sic] ineffective just as if the same had never been published.
8. That inasmuch as Ordinance No. 1380 was not validly published, it was never in effect.
WHEREFORE, IT IS BY THE COURT ORDERED AND DECREED, that Plaintiffs’ cause of action is hereby dismissed.
It is from these findings that Mr. Phillips appeals.
Relying on Ark. Code Ann. § 14-55-206(a)(l)(A) (1987), Mr. Phillips contends that anyone may cause an ordinance to be published. This statute states:
All bylaws or ordinances of a general or permanent nature and all those imposing any fine, penalty, or forfeiture shall be published in some newspaper of general circulation in the corporation.
Mr. Phillips asserts that because this statute does not specify who may publish the ordinance, then anyone can effectively do so. This is not true.
Statutes must be construed together and given their plain meaning. Accordingly, this statute read in conjunction with Ark. Code Ann. § 14-55-101 (1987), clearly gives only the municipality the power to publish ordinances:
14-55-101 Authority to enact.
Municipal corporations shall have the power to make and publish from time to time bylaws or ordinances, not inconsistent with the laws of the state for carrying into effect or discharging the powers or duties conferred by the provisions of this subtitle.
(Emphasis added.)
Therefore, Mr. Phillips’ efforts to publish Ordinance No. 1380 were ineffective, and the ordinance was never properly published. Since we hold that Ordinance No. 1380 was invalid for lack of publication, we need not address Mr. Phillips’ arguments concerning Ordinance No. 1389, the ordinance that ostensibly repealed No. 1380.
Affirmed. | [
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Leflar, J.
Appellant brought ejectment for two town lots in appellees’ possession in Brinkley, Ark. Appellees answered, filed a cross-complaint setting out title in themselves and praying that same be quieted by decree, and moved that the case be transferred to equity. The motion to transfer was granted, appellant’s motion to re-transfer to Circuit Court was denied and, after hearing before the Chancellor, a decree was rendered dismissing appellant’s complaint and quieting title in appellees in accordance with the cross-complaint. This appeal followed.
Both appellant and appellees have tax deeds from the State, and each of them thought his deed conveyed tito land i.11 question, though the descriptions in each deed were inaccurate. A correct description of the land is “Lots 7 and 8 in the "West half of the East half (W% of E%) of Block B, Brinkley Car Works & Mfg. Co.’s Subdivision of the Town of Brinkley, Ark.”
Appellees received deeds from the State to the two lots in 1936 and 1942 respectively, under descriptions which may without discussion be assumed to have been inadequate. They have been in possession and active occupancy under claim of title since those dates.
Appellant received his deed from the State in 1948. This deed was based on a 1940 tax sale to the State under the description “Lots Seven (7) and Eight (8) in the West Half (Wy2) of the East Half (E%) of Block ‘B,’ City of Brinkley,” and the 1948 deed to appellant employed the same description. It is agreed that there are several Block B’s within the City of Brinkley, the stipulation of the parties enumerating a Block B in Pat Howard’s Addition which includes lots numbered 7 and 8 and a Block B in Emmons’ Addition which includes lots numbered 7 and 8, as well as the Block B in the Brinkley Car Works & Mfg. Co. Subdivision which contains the lots numbered 7 and 8 which are now before us.
Extrinsic circumstances are suggested which might make possible an identification of the lots in question, apart from the incomplete description used in the tax sale and in appellant’s deed. These circumstances do not suffice to validate the tax sale through which appellant derives his claim to title. The description was too indefinite to enable the owner or the public to identify the land being sold with that certainty which is requisite in tax sale proceedings. Brinkley v. Halliburton, 129 Ark. 334, 196 S. W. 118, 1 A. L. R. 1225; Schuman v. Laser, 212 Ark. 727, 207 S. W. 2d 308; Jones, Arkansas Titles, §§ 248, 250. And see Stout v. Healey, 216 Ark. 821, 228 S. W. 2d 45. Appellant has not shown good title in himself.
Appellant contends, however, that he should win because appellees’ title is not good. Appellees are in possession, and apparently have been in possession for the statutory period for acquisition of title by adverse possession. Ark. Stats. § 37-101. But appellant points out that there can be no adverse possession against the State, and concludes from this that appellees in this case can urge no claims based on adverse possession. That does not follow. Appellant acquired no title from the State through the tax sale and State deed described above. Even if the State does have a tax title in this land, which does not appear, appellant does not stand in the place of the State. Appellees are not pleading adverse possession -against the State, but against appellant. Furthermore, appellant claiming in ejectment must succeed on the strength of his own title and not on the weakness of the title of his adversary. Knight v. Rogers, 202 Ark. 590, 151 S. W. 2d 669; Jackson v. Gregory, 208 Ark. 768, 187 S. W. 2d 547. In the complete absence of a showing of title in plaintiff (appellant), he could not win even though appellees’ only showing was one of prior possession.
Appellant also urges error in the Chancellor’s refusal to retransfer the cause to .the Circuit Court. Ap-pellees’ answer and cross-complaint not only denied the allegations of appellant’s complaint but also prayed that appellees’ own title be quieted on the basis of facts alleged in the cross-complaint. This prayer for equitable relief was ample basis for retention of jurisdiction by the Chancery Court over the whole case. Thomason v. Abbott, ante, p. 281, 229 S. W. 2d 660. Appellant’s motion to retransfer to the law docket was properly denied.
The decree is affirmed. | [
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Darrell Hickman, Justice.
This is an appeal from a dismissal of the appellants’ interpleader action. We hold it is not a final order and dismiss the appeal under ARCP Rule 54(b).
There was an existing lawsuit between the appellee Luke Quinn and two entities called Otter Creek Park and Otter Creek Park Company. The appellants, not parties to that lawsuit, owed Quinn $37,337.68 on a note.
Proceeding more like intervenors, the appellants filed a motion for interpleader in the existing lawsuit alleging the money was claimed not only by Quinn but by Otter Creek Park.
A special judge signed an ex parte order granting the motion. Upon learning of this, Quinn immediately asked that the interpleader be dismissed saying there were no competing claims to the money. The regular trial judge set aside the ex parte order and dismissed the appellants from the suit.
The interpleader was not filed as an original, independent action. The appellants injected themselves into an existing lawsuit. As a result the order dismissing them left other claims and parties remaining in the case and was not a final order. ARCP Rule 54(b).
Appeal dismissed.
Purtle, J., not participating. | [
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Kirby, J.,
(after stating’ the facts). Appellant insists that the chancellor erred in refusing to render a personal judgment against Louis Heilbron, upon his obligation to pay the indebtedness due under the mortgage, upon foreclosure thereof; while it is contended for Heilbron that upon his conveyance of the lands to Floyd Thompson, who assumed the debt, he became thereby only a surety for Thompson, and was released from the payment of the debt by appellant’s granting Thompson an extension of time for payment of the loan, without his assent or notice to him thereof.
In Wallace v. Hammonds, 170 Ark. 952, 281 S. W. 902, the court held, that a purchaser of lands from the mortgagor, who assumed or agreed to pay the mortgage indebtedness, would become personally liable therefor, saying: “It is well settled in this State that, where a purchaser of mortgaged lands from the mortgagor assumes and agrees to pay the mortgage thereon, he becomes personally liable therefor, which liability inures to the benefit of the mortgagee, who may enforce it in an appropriate action. Felker v. Rice, 110 Ark. 70, 161 S. W. 162 ; Walker v. Mathis, 128 Ark. 317, 194 S. W. 702 ; Kirby v. Young, 145 Ark. 507, 224 S. W. 970 ; and Beard v. Beard, 148 Ark. 29 ; 228 S. W. 734.
It has also been held, that an agreement, between the purchaser of mortgaged lands with the mortgagor, to pay the mortgagor’s debt to the mortgagee, may be rescinded without the latter’s knowledge or consent, where no privity of contract has been established by the mortgagee’s acceptance of the purchaser as the debtor; but such agreement cannot be rescinded by reconveyance to the mortgagor without consent of the mortgagee, after the latter has been notified of such assumption and has extended the time of making the payment to the purchaser, and the property has, meanwhile, decreased in value. McCown v. Nicks, 171 Ark. 260, 284 S. W. 739.
The lands were conveyed by the mortgagors to Thompson and Heilbron, subject to the mortgage only, without the assumption by them of the debt or agreement to pay it. When the debt became due, however, Thompson and Heilbron procured an extension of five years’ time thereon, from appellant company, executing at the time their written contract, designated “Mortgage Renewal Agreement,” reciting the whole transaction, and, as owners of the fee title, jointly and severally bound and obligated themselves to appellant company, “present owners and holders of the mortgage,” to pay the said principal sum of money, together with interest thereon at the rate of six per cent, per annum, payable annually, from November 1, 1922, on the first day of November, 1927, to which time the payment of the said principal debt is hereby extended with the terms, tenor and stipulations contained in the said mortgage.
“As evidence of the installments of interest on the said principal debt, Floyd Thompson and Louis Heilbron have this day signed five interest coupons for the sum of nine hundred ($900) dollars each, and we expressly agree that such interest coupons shall form a part of the contract evidenced by said note, mortgage and this renewal agreement and be subject to the terms, conditions and stipulations therein contained.” Thus it will be seen that, although a vendee of a mortgagor of the lands included in the mortgage ¡may rescind the contract of purchase, where the lands were conveyed subject only to the mortgage, without the consent or assent of the mortgagee, he cannot do so when the conveyance of the mortgaged lands was made to him upon his assumption or agreement to pay the mortgage debt, without the knowledge, consent or acquiescence of the holder of the mortgage debt after privity has been established between the lien holder and the vendee, who has assumed the debt. A fortiori in the instant case nothing could be done by the vendor of the mortgaged lands and the purchaser thereof, subject to the mortgage, that could release such vendee from liability on his joint and several note to the mortgagee, binding himself to the payment of the mortgage debt by the valuable consideration of an extension of time thereon. Having bound himself by a valid written contract to the mortgagee for a valuable consideration for the payment of the mortgage debt, he could not escape liability under such obligation upon any contract, agreement or conveyance thereafter made between himself and his co-obligor on the contract to pay the mortgage debt without the assent or consent of the holder of such obligation, which was not given in this case..
The conveyance by Heilbron of the mortgaged land, purchased by him and Thompson subject to appellant’s mortgage, to Thompson, subject to said mortgage and upon assumption by him of the mortgage debt, could not therefore have had effect to release Heilbron from the binding force of his obligation made to the mortgagee to pay the mortgage debt without the knowledge and consent of the mortgagee. There was no agreement between the parties by which Thompson became the principal debtor of the mortgagee and Heilbron the surety, and certainly, without such agreement, the conveyance by one of the grantees of the mortgaged land to the other subject to the mortgage and the grantee’s assumption of the debt could not have effect to release Heilbron from his obligation to the mortgagee to pay the mortgage debt. Even if it had been shown that Heilbron had only be come the surety of Thompson, it was incumbent on him to show, as a part of his defense, that the indulgence given by the mortgagee in the extension of time to Thompson was without his assent, which was not done. Heilbron was not bound to pay the mortgage debt because of the conveyance of the mortgaged lands to him and Thompson subject to the mortgage, not having agreed to assume the debt, but by his contract with the mortgagee for its payment, from which he could not be released without the consent or acquiescence of the lien holder. In other words, he was bound upon his valid contract for a valuable consideration made direct to the mortgagee to pay the mortgage debt, and any assumption of such debt or agreement between him and his coobligor upon the contract to pay the mortgage debt, for the conveyance of his interest in the lands, could not have released him from such obligation, the mortgagee not consenting thereto. McCowan v. Nicks, supra ; Sheppard v. May, 115 U. S. 505, 6 S. Ct. 119 ; Watson v. First State Bank, (Tex.) 237 S. W. 1106 ; Shapleigh Hardware Co. v. Chestnut, 90 Tex. 110, 37 S. W. 411 ; Johns v. Wilson, 180 U. S. 448, 21 S. Ct. 445 ; Willard v. Wood, 164 U. S. 520, 17 S. Ct. 176 ; Cucullu v. Hernandez, 103 U. S. 756. Im the latter case the court said: “It cannot, we think, be reasonably claimed that a debtor is converted into a surety, by his creditor’s acceptance of an additional promise from a third person to pay the debt due him by his debtor. There is no element of suretyship in such a contract, unless it be that the additional debtor might be regarded as surety for the original debtor. The relation between the creditor and the original debtor is not changed by such an arrangement.” See also Felker v. Rice, supra ; Walker v. Mathis supra ; Iowa Title & Loan Co. v. Clark Bros., (Ia.) 224 N. W. 744 ; Herbold v. Shelly, 224 N. W. 781 ; Royal Union Life Co. v. Waggoner, 227 N. W. 599 ; Wolfe v. Murphy, 47 App. D. C. 296 ; and Hamiter v. State National Bank, Texarkana, 106 Ark. 157, 153 S. W. 94.
Little need be said in disposing of the appeal of Thompson against the bank. It is insisted by the bank that the court erred in allowing the admission of parol testimony to contradict, vary and add to the terms of the contract of settlement between the parties, and the contention must be sustained.
The written contract recites the many reciprocal agreements and obligations of the respective parties, and the statement therein, as to the consideration, is more than a mere statement of fact and acknowledgment of páyment of a money consideration, and is of a contractual nature, and the part of the contract relative thereto can no more be changed or modified by parol or extrinsic evidence than any other part. Mott v. American Trust Co., 124 Ark. 70, 186 S. W. 631 ; Williams v. C. R. I. & P. Ry. Co., 109 Ark. 82, 158 S. W. 967 ; Delaney v. Jackson, 95 Ark. 135, 128 S. W. 859 ; 10 R. C. L. 1044 ; Sims v. Best, 140 Ark. 384, 215 S. W. 819 ; 30 L. R. A. 442 ; Cleveland-McLeod Lbr. Co. v. McLeod, 96 Ark. 405, 131 S. W. 878 ; Ashley D. & N. Ry. Co. v. Cunningham, 129 Ark. 346, 196 S. W. 798 ; and Harris v. Trueblood, 124 Ark. 308, 186 S. W. 836.
Moreover, a careful examination of the record of all the testimony does not disclose that the chancellor’s finding that the bank had not assumed to pay off any of the prior mortgages or liens against the property conveyed to it by Thompson in settlement of his obligations to the bank, is contrary to the preponderance of the testimony, but rather that the preponderance of the testimony supports the chancellor’s finding that no such agreement or obligation was imposed upon the bank by said settlement; and the decree as to the bank must be affirmed.
It follows that Heilbron was liable to the payment of the mortgage debt, his note or obligation therefor, and the court erred in not so holding and rendering judgment against him for the balance remaining due after the application of the proceeds of the lands sold under foreclosure to the payment thereof. For such error the decree must be reversed, and the cause remanded, with directions to enter a decree in conformity with this opinion as to Heilbron, and the decree on the appeal of Thompson against the bank will be affirmed. It is so ordered.
MoHaney and Butler, JJ., dissent on the reversal. | [
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Smith, J.
.The complaint filed by appellant, a taxpayer of Pulaski County, alleges “That the Pulaski County Hospital Association is a # * * corporation * * * under the laws of the State of Arkansas, * * * and, as such corporation, it proposes to build and finance a hospital by the sale of interest-bearing bonds, * * * which hospital it proposes to sell to Pulaski County, Arkansas, which sale will carry with it the assumption by said county of the said interest-bearing bonds * * The cost of the construction of the hospital will be about $600,000, a sum larger than the county can pay out of a single year’s revenue, but the county can pay for the hospital by meeting the annual bond maturities, thus distributing the payment of the cost of the hospital over a period of years. The plaintiff alleges this proposed contract is violative of the Constitution and laws of the State, and prays that it be enjoined. His demurrer to the answer, which alleged the ability of the county to pay for the construction of the hospital by distributing its cost over a period of years, was overruled, and, as he stood on his demurrer to the answer, the complaint was dismissed, and he has appealed.
At the 1923 session of the General Assembly an Amendment to the Constitution was proposed to be voted on as amendment No. 11 (General Acts 1923, page 797). The amendment was adopted at the ensuing general election (Brickhouse v. Hill, 167 Ark. 513, 268 S. W. 865), and it has since been commonly referred to as amendment No. 11, and has been so designated in the numerous cases which construe or refer to it. The correct number of the amendment, according to Applegate’s Constitution of Arkansas, Annotated, page 219, is No. 8, and it will be referred to herein by that number.
This amendment was designed to amend § 4 of article 12 of the Constitution by adding three paragraphs thereto, the first of which reads as follows:
“The fiscal affairs of counties, cities and incorporated towns shall be conducted on a sound financial basis, and no county court or levying board or agent of any county shall make or authorize any contract or make any allowance for any purpose whatsoever in excess of the revenue from all sources for the fiscal year in which said contract or allowance is made; nor shall any county judge, county clerk, or any other county officer, sign or issue any scrip warrant or make any allowance in excess of the revenue from all sources for the current fiscal year; nor shall any city council, 'board of aldermen, board of public affairs, or commissioners, of any city of the first or second class, or any incorporated town, enter into any contract or make any allowance for any purpose whatsoever, or authorize the issuance of any contract or warrants, scrip or other evidence of indebtedness in excess of the revenue for such city or town for the current fiscal year; nor shall any mayor, city clerk, or recorder, or any other officer or officers, however designated, of any city of the first or second class or incorporated town, sign or issue any scrip, warrant or other certificate of indebtedness in excess of the revenue from all sources for the current fiscal year.’’
A literal reading- of the language quoted would compel the conclusion that the governmental agencies named were prohibited from contracting obligations of any character in any fiscal year in excess of the revenues for that year. In other words, they must pay as they go, and can go only so far as they pay, and are not to make or authorize any contract, or make any allowance, for any purpose whatsoever in excess of the revenue from all sources for the fiscal year in which said contract or allowance is made.
We have had frequent occasion to construe this amendment: Kirk v. High, 169 Ark. 152, 273 S. W. 389, 41 A. L. R. 782 ; Babb v. El Dorado, 170 Ark. 10, 278 S. W. 649 ; Jewett v. Morris, 170 Ark. 71, 278 S. W. 652 ; Nelson v. Walker, 170 Ark. 170, 279 S. W. 11 ; Airheart v. Winfree, 170 Ark. 1126, 282 S. W. 963 ; Martin v. State ex rel Saline County, 171 Ark. 576, 286 S. W. 873 ; McGregor v. Miller, 173 Ark. 459, 293 S. W. 30 ; Independence County v. Lester, 173 Ark. 796, 293 S. W. 743 ; Dixie Culvert Mfg. Co. v. Perry County, 174 Ark. 107, 294 S. W. 381 ; Lybrand v. Wafford, 174 Ark. 298, 296 S. W. 729 ; 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 ; Jackson v. Madison County, 175 Ark. 826, 300 S. W. 924 ; Hagler v. Arkansas County, 176 Ark. 115, 2 S. W. (2d) 5 ; Campbell v. High, 176 Ark. 222, 2 S. W. (2d) 1101 ; Miller v. State use Woodruff County, 176 Ark. 889, 1 S. W. (2d) 998 ; Norman v. Blair, 177 Ark. 649, 7 S. W. (2d) 328 ; Kleiner v. Parker, 177 Ark. 671, 8 S. W. (2d) 434 ; Chestnutt v. Yates, 177 Ark. 894, 9 S. W. (2d) 37 ; Dixie Culvert Mfg. Co. v. Perry County, 178 Ark. 454, 12 S. W. (2d) 10 ; Carter v. Cain, 179 Ark. 79, 14 S. W. (2d) 250.
The first of these cases, that reported under the style of Kirk v. High, was a consolidated case involving appeals from Lonoke and Nevada counties. In the Lonoke County case it was proposed to build a courthouse, and in the Nevada County case a jail, and it was conceded that neither county could proceed if the amendment were given a literal interpretation, for the reason that the revenues of the counties were insufficient to pay the construction cost of the proposed buildings in a single year.
The construction of the amendment, in view of the practical problem presented, gave us the greatest concern, and, as appears from the report of the case, three opinions were written.
The present Chief Justice was of the opinion that courthouses and jails were absolutely necessary in the administration of the 'State Government, and that the amendment was not designed to take away the powers of counties to repair and erect courthouses and jails which were possessed before its adoption. Judge McCulloch, the then Chief Justice, construed the amendment literally and expressed the view, in a dissenting opinion, that neither courthouses nor jails could be erected unless they could be paid for entirely out of the revenues of the year in which the construction contract was made.
The majority, however, took an intermediate position between the views of the' former and the present Chief Justices.
In the majority opinion it was said: “But it does not mean that the county without a courthouse or a jail must dispense with these essentials because they cannot be fully paid for in one year. Counties may contract for these buildings and may apportion the cost over a number of years, but in doing so the other necessary expenses of Government must be taken into account, and no authority be conferred upon the officers charged with the duty of issuing vouchers or warrants to issue them for a sum which will exceed the total revenues for any single year.”
It also appears, from the majority opinion, that the majority reached the conclusion announced in view of what Chief Justice Bunn had said in the case of Hilliard v. Bunker, 68 Ark. 340, 58 S. W. 362, that “In such an expensive matter as the building of a courthouse and jail, it is not of course expected, under ordinary circumstances, to cover the whole amount by the levy for one year, and in fact this cannot be done, since, together with the ordinary expenses of the county, the levy for erecting these buildings must not exceed in one year the rate of 5 mills. The amount and number of the annual installments necessary to cover the whole cost of the structure must be and is left to the discretion of the levying court, to be exercised so as to accomplish the result intended in a reasonable time.”
It was the opinion of the majority that, in view of the necessity for courthouses and jails, in order that counties might function as contemplated by law, and in view of the known inability to discharge so great an expense out of a single year’s revenues, it was not the purpose of the amendment to stop the erection of courthouses and jails, as would have been done if the amendment were literally construed.
A most unsatisfactory state of affairs arose after the rendition of this opinion, as is evidenced by the facts stated in the opinions above cited. We had said, and had reiterated the holding, that courthouses and jails, however necessary, could not be erected unless their cost could be so distributed over future years in such installments of payments as not to impair the ability of the counties to function and to pay the other necessary ex penses of county 'government after paying these installments. We had held, to quote a headnote in the case of McGregor v. Miller, 173 Ark. 459, 293 S. W. 30, that “Under Constitution, Amendment 11, county warrants issued, as well as contracts made, in excess of revenues for a fiscal year, are void, and the action of the county court in issuing such a warrant or in making an allowance on which such a warrant might later be issued is coram non judice.”
There was always some uncertainty and difference of opinion as to whether a county could build a courthouse or jail, as appears from the facts stated in the above cited opinions. Indeed, in the case of Lake v. Tatum, 175 Ark. 90, 1 S. W. (2d) 554, after holding that Union County could not build a courthouse, we held, on rehearing, that it could do so.
With the law in this uncertain state, the G-eneral Assembly, at its 1927 Session, proposed an amendment to be voted on as amendment No. 17 (Acts 1927, page 1192), which authorizes counties, upon the conditions there provided, to issue bonds to build courthouses and jails. This amendment was adopted at the general election in .1928, and is designated as amendment No. 15, in the order of its adoption, in Applegate’s Annotated Constitution, page 235.
We were called upon to construe these amendments as related to each other in the case of Carter v. Cain, 179 Ark. 79, 14 S. W. (2d) 250, and, after reviewing the opinion in Kirk v. High, su,pra, it was there said: “After the court had construed this amendment No. 11 to mean that a county could go in debt for courthouses and jails, the people then adopted amendment No. 17, vesting the authority and right to construct courthouses and jails and to levy taxes to pay for them, in the qualified electors of the county. Amendment No. 17 was evidently adopted for the very purpose of meeting the decision of this court and accomplishing what they thought was accomplished by amendment No. 11, when adopted. That is, to prevent counties from going into debt, and provide a method for building and paying for courthouses and jails. But it is insisted that there are two methods now. We do not agree to this contention.”
Amendment No. 8 must now, since the adoption of amendment No. 15, be construed, as it reads, literally, that is, that contracts and allowances in any year cannot exceed the revenues of that year, not even for a purpose so necessary as that of building courthouses and jails.
It is true the instant case involves a hospital, and not a courthouse or a jail, but, in view of the history of these amendments, we would be unwilling to hold that a county may go in debt for a hospital, when it cannot do so for a courthouse or jail except upon a vote of the people. It is a matter of common knowledge that most of the counties of the State had either a courthouse or a jail, or 'both, while very few owned a hospital, and the opinion in Kirk v. High related only to courthouses and jails, which we held were not covered by amendment No. 8, for the reasons stated. This exception to the amendment has now been stricken out by the adoption of amendment No. 15, and we are unwilling to hold there is any other exception.
We, therefore, conclude that the action of the county in assuming the obligation of buying this hospital should be enjoined, for the reason that it is admitted that its cost cannot be paid out of a single year’s revenues.
The decree of the court" below will therefore be reversed, and the cause remanded Avith directions to enter an order enjoining the county judge, as prayed, from proceeding further towards the purchase of the hospital. | [
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J. S. Brooks, Special Justice.
This is an action originated by the appellee (who is also the cross-appellant) against the appellant (who is also the cross-appellee) to compel appellant, as the Trustee under the Last Will and Testament of M. W. Hardy, deceased, to account to the appellee, William McCombs Hardy, a soli of M. W. Hardy, and beneficiary of the Hardy Will, for certain dividends on Trust stocks, for restoration to the Trust of certain funds involved in sale of timber from lands of the Hardy estate, for permission to inspect the books and records of the Hardy Trust and finally to charge personally against the appellant, Corinne McCombs Hardy, the attorneys’ fees incurred by the appellee. On hearing in the Pulaski Chancery Court in Case 82668, and hearing of another case in the same Court between the same parties, consolidated for trial, the dividends question was decided in favor of the appellee, William McCombs Hardy, but the Court refused to assess attorneys’ fees against the appellant individually. Costs were assessed by the Court one-fifth to appellee and four-fifths to appellant. The other issues mentioned were disposed of by the Court below and are not before us now. The Trustee, Mrs. Hardy, has appealed the dividends question, and William McCombs Hardy has cross appealed thé attorneys ’ fee decision.
This is a companion case to No. 9028, decided this same day. The basic facts appear in both cases and we will not elaborate on such facts. M. W. Hardy died in 1929 in Pulaski County, and left surviving him his widow, Corinne McCombs Hardy, and three minor children, the appellee, William McCombs Hardy, then age 14, and twins age 3, a son, Robert Lamar Hardy, and a daughter, Prances Hope Hardy. M. W. Hardy was testate, and his Last Will and Testament was duly probated in Pulaski County. After making provision for the widow, the bulk of the estate was left to the three children, share and share alike. A trust was set up by the Will, the general provisions of the Trust being that each child was to receive one-fourth of his inheritance at age 21, another one-fourth at age 26, and the remaining one-half at age 30.
The Hardy estate consisted of both real and personal assets — stocks, bonds, timber lands, etc. The widow, Mrs. Hardy, to whom we sometimes refer hereafter as the Trustee, was left the home in Little Rock in fee and one-third interest for life in all other real estate, together with certain personalty rights. Mrs. Hardy and the First National Bank of El Dorado were named Co-Trustees, but the Bank resigned in 1932. In that year, the Chancery Court of Pulaski County authorized Mrs. Hardy to continue as sole Trustee, and directed that she make annual reports of the Trust functions to that Court. Mrs. Hardy as such Trustee administered the affairs of the Trust from 1932 until 1947 or 1948.
William McCombs Hardy, sometimes referred to hereafter as McCombs Hardy, became 21 in 1936, 26 in 1941 and 30 in 1945, but for reasons apparently agreeable to all involved, the distributions called for by the Hardy Will at those ages were not made. Sometime in 1946, the question of a complete settlement by the Trustee with her son did come up, and this particular litigation involves one phase of the settlement. Discord between the Trus tee and McCombs Hardy arose about tbis time, as to several matters. Tbe phase of tbe Hardy Trust estate bere involved arose out of tbe settlement of tbe Trustee with McCombs Hardy as to bis interest in certain stocks and bonds belonging to tbe Trust.
After a request for tbe Trustee to turn over to Mc-Combs Hardy in 1946, bis share of such stocks and bonds, both parties agreed to have these items appraised by the accountant of tbe estate, or some person selected by tbe accountant, as of September 30, 1946. Tbe procedure was to agree on an appraised value on said date, and then have tbe Trustee, using estate funds of tbe other two Hardy children, purchase tbe interest of McCombs Hardy in such items. Tbe valuation basis was used, and some time after September 30,1946, McCombs Hardy was furnished with such appraisal, as a result of which tbe sum of $24,049.60 would be paid to him for bis interest in tbe stocks and bonds involved.
For different reasons, tbe parties did not meet to complete tbe transaction until January, 1947, when tbe contents of tbe appraisal were first mutually discussed: Tbe Trustee approved tbe listing and tbe values there shown except as to tbe $5.00 per share figure placed on tbe Barton-Mansfield stock. Tbis stock was eliminated from tbe list, and tbe amount due McCombs Hardy then reduced accordingly to $20,834.60, and check for tbis amount was written by tbe Trustee and delivered to Mc-Combs Hardy, and cashed by him. Tbe check, dated January 24,1947, contained an endorsement, “On account of settlement of bis share in certain personal property and cash as of September 30,1946.” One of tbe stocks on tbe list was that of tbe Acme Brick Company. Tbis Company bad paid a large dividend on stocks belonging to tbe Hardy estate in December of 1946. Such dividend and other dividends from stocks involved in tbe transaction between tbe Trustee and William McCombs Hardy paid between September 30, 1946, and January 24, 1947, amounted to $9,869.94.
Shortly after tbe January 24, 1947, transaction, Mc-Combs Hardy made a demand on tbe Trustee for bis share, one-third, of all the dividends and he alleged that at the time of the settlement on January 24th the dividend payment question was discussed and that the Trustee agreed to pay him his share of the dividends. Mrs. Hardy denied any such agreement and claimed that the settlement made with her son as to the purchase of these stocks and bonds was effective September 30, 1946, and also asserted that the acceptance by McCombs Hardy of the above mentioned check, containing the endorsement shown, estopped her son from claiming any right to the dividends. The present litigation arose out of such controversy, together with other phases of discord between these two parties. McCombs Hardy further asserted in the Court below that because the Trastee denied him his rights and privileges due to him from the Hardy trust the Trustee should be compelled individually to pay reasonable attorneys’ fees incurred by him in compelling the enforcement of his rights.
We concur with the findings of the lower Court in all phases of this case, presently before us, except as to the question of costs. As to the stock dividends point, our decision is based upon two lines of thought.
(1) The Chancellor’s Findings.
This ease could be effectively disposed of now upon the consideration of the question of fact presented to the Chancellor below as to the direct testimony of William McCombs Hardy that his acceptance of the January 24, 1947, check from the Trustee, was conditioned upon the agreement of the Trustee to pay to him his share of the dividends. The Trustee denied any such agreement and the disputed fact was thus presented to the Chancellor whose decision resolved the question in favor of Mc-Combs Hardy. This being an equity suit, it is the duty of this Court to weigh the evidence and reach its own conclusion. However, the Chancellor’s finding is persuasive unless the Court is satisfied that the preponderance of the evidence is to the contrary. We cannot say, in view of the record, that McCombs Hardy did not sustain the burden of proving his allegations by a preponderance of the testimony as to the dividends question. It particularly occurs to us that as a related fact in the January 24th settlement the Trustee could not fairly assert the September 30th date binding on McCombs Hardy and yet herself partially accept and partially reject the valuation figures of the September 30th statement, as was the case when she refused to settle on the figures fixed for the value of the Barton-Mansfield stock.
(2) Purchase by Trustee.
However, in addition to the fact question above discussed, resolved against the Trustee, even if it be assumed that there was a definite valuation agreement on the September 30, 1946, date for the sale of McCombs Hardy’s interest in the stock involved, still the settlement transaction of January 24, 1947, and the acceptance of the check of that date by McCombs Hardy should not be enforced by the Trustee as to the dividends point. The record in no way shows a specific agreement of the parties to have the interest of McCombs Hardy in these stocks concluded on September 30th, but only that this was a valuation basis date and that the transaction was continued over a period of almost four months before its conclusion. In the meantime, large dividends had accumulated on the stocks and the amount and extent of these dividends was known only to the Trustee who had managed completely the Hardy trust for many years. The trustee-beneficiary relationship between the parties made it incumbent on the Trustee to use the highest degree of care and fairness in her dealings with her son as to the purchase of his stock interest in the trust, no matter if the purchase was made for herself or for the other beneficiaries. This Court has previously in a number of cases defined the extent and nature of a trustee’s obligations and duties in dealings with the beneficiary. In Patterson v. Woodward, 175 Ark. 300 (1925), 299 S. W. 619, we said:
“At the outset it may be said that it is a rule of universal application in equity that a trustee shall not deal with trust property to his own advantage against the consent of the cestui que trust. The rule is not confined to any particular class of trustees but applies to all who come within its principles. ”
Also in Lybarger v. Lieblong, 186 Ark. 913, 56 S. W. 2d 760 (1933), we further said:
“Everyone whether designated agent, trustee, servant or what not, under contract or other legal obligation to represent and act for another in any particular business or line of business or for any valuable purpose, must be loyal and faithful to the interest of such other person in respect to such business or purpose. He cannot lawfully serve or acquire any private interest of his own in opposition to that of his principal. ‘This is a rule of common sense and honesty as well as of law. ’ In R. C. L. 825, it is also said: ‘He may not use any information that he may have acquired by reason of his employment either for the purpose of acquiring property or doing any other act which is in opposition to his principal’s interest.’ ” (The emphasis is ours.)
Then in 159 Fed. 321, in a case arising in Arkansas and decided by the Circuit Court of Appeals, Eighth Circuit, styled Byrne v. Jones, et al. (1908), involving a transaction between an Arkansas attorney and a Massachusetts client, it was said:
“A trustee or an agent may purchase the trust property directly from his cestui que trust, sui juris, or principal, on condition that the latter intends that the former shall buy, that the former discloses to the latter, before the contract is made, every fact he has learned in his fiduciary relation which is material to the sale, that he exercises the utmost good faith, that no advantage is taken by misrepresentation, concealment of, or omission to disclose, important information gained as trustee or agent, and that the entire transaction is fair and open.”
Further in the same case it was said:
“Any omission by the trustee or agent to disclose any fact material to the sale learned by him as trustee or agent, any material misrepresentation, concealment, or other disregard of this condition, renders the sale and the contract for it voidable at the election of the cestui que trust or principal. ’ ’
Among cases cited in support of this rule in the case quoted from are Cornish v. Johns, 74 Ark. 231, 240, 85 S. W. 764, and Thweatt v. Freeman, 73 Ark. 575, 580. 84 S. W. 720.
The well known text writer, Bogert, in his work, Trusts and Trustees, says in § 493 thereof (Breach of Fiduciary’s Duty to Use Utmost Good Faith in Direct Dealing With Principal) that:
“Fiduciaries are not prohibited from having direct dealings by way of conveyance or contract with their principals, but such transactions are guarded very jealously by equity. By reason of the intimate knowledge which the fiduciary has with respect to the financial affairs of the principal, the superiority of his position, his usual influence with the principal and the latter’s trust and confidence in the fiduciary, there is great opportunity for the exercise of fraud and undue influence. ’ ’
The same authority in § 543 (Trustee’s Duty of Loyalty to the Cestui) states:
“One of the most fundamental duties of the trustee is that he must display throughout the administration of the trust complete loyalty to the interest of the cestui que trust. He must exclude all selfish interest and also all consideration of the welfare of third persons.”
Tested by the principles of the above authorities and cases, we do not find that the Trustee in her dealings with McCombs Hardy fulfilled all of her duty and obligations to the beneficiary, particularly as to a full disclosure of all facts. We think it obvious that McCombs Hardy would not have accepted the January 24,1947, check from the Trustee if he had been given exact knowledge of the dividends accruing on the stocks, except upon a specific understanding and agreement of the Trustee for payment of his share of the dividends. The record shows that he conditioned the settlement on receipt of his share of the dividends, even though he knew nothing of the details as to the dividends, and, no doubt, his conditional acceptance of the check would have been very definite and emphatic beyond any possible misunderstanding if the Trustee had disclosed all pertinent facts and figures about these dividends.
Our conclusion is not altered by the fact that the Trustee’s dealings with her son were not on the basis of her purchase of his interest in these stocks, but that the purchase was being made for the other two Hardy children. The errors in her conduct as Trustee in dealings with her son were detrimental to McCombs Hardy, no matter who benefitted from the transaction. The cases and text writers are agreed on this point, it being said in the Re-Statement of the Law of Trusts, § 183:
“Where there are two or more beneficiaries of a trust, the trustee is under a duty to deal impartially with them. ’ ’
The text writer in 54 Am. Juris., page 254, which is § 320, Loyalty to Plural Beneficiaries and Plural Trusts, affirms this principle. Several cases are cited by the text writer, among them, Gaver v. Gaver, 176 Md. 171, 4 A. 2d 132, in which case a mother, Mrs. Gaver, held as life tenant with the remainder interest to pass to her children equally. Mrs. Gaver was not permitted to favor one of the children in a property transfer and in that case the Court said:
“As a trustee Mrs. Gaver was under a duty to exercise her power to sell fairly and impartially for the equal benefit of all of the remaindermen and any grant of a gift, benefit or advantage to one remainderman at the expense of the others would constitute a breach of that duty, 65 C. J. 648, 26 R. C. L. 1280, 1281; Calvert v. Calvert, 18 Md. 73.”
(3) Attorney’s Fee.
Both parties concede that the law of Arkansas generally on this subject raised by the cross appeal of William McCombs Hardy is that each litigant must pay his own attorneys’ fees. Jacobson v. Poindexter, 42 Ark. 97; White River L. & W. Ry. Co. v. Starr, R. & L. Co., 77 Ark. 128, 91 S. W. 14. It is true that a Trustee is responsible to the beneficiary for any damage sustained by reason of the trustee’s misconduct or neglect. Clark v. Spanley, 122 Ark. 366, 183 S. W. 964. However, the record does not show in this case misconduct or neglect by Corinne McCombs Hardy to such an extent as to justify the position and claim of the cross appellant, McCombs Hardy, on this point.
Affirmed on both the direct and cross appeals with all costs assessed against the appellant, Corinne Mc-Combs Hardy.
Justices Millwee, George Rose Smith and Dunaway disqualified and not participating.
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Mehaefy, J.
Appellant began this suit in the Clay Circuit Court against J. N. Higginbotham, alleging that it was a corporation engaged in the wholesale drug busi ness, and that it is the successor of Hessig-Ellis Drug Company, by reason of a merger and consolidation of Van Vleet-Mansfield Drug Company with Hessig-Ellis Drug Company; that the appellee, J. N. Higginbotham, and his son, Jewell N. Higginbotham, on March 16, 1927, up to and including April 6,19'28, were operating Higginbotham Drug .Store at Bernie, Missouri. It was alleged that Higginbotham and his son were partners, and operating the business at Bernie under the firm name, and that, while they were operating said business, they purchased a large bill of merchandise from appellant; that on April 6,1928, there was due appellant the sum of $1,537.82. An itemized statement, sworn to, was filed and made part of complaint; that on March 17, 1927, appellee executed and delivered to appellant his promissory note for $986.63 on which there had been a payment reducing the amount due on note to $604.51; that both the note and account are past due, and appellant prays judgment for $2,280.73. Appellee filed answer denying all the material allegations in the complaint. This action is against J. N. Higginbotham who it is claimed was in partnership with his son, Jewell N. Higginbotham, in the drug business. If he was a partner, he is liable. The important question in the case is whether there was a partnership. There is no dispute about the amount of the claim, and it is unnecessary to set out the evidence except that portion of it on the question of partnership.
Mr. S. E. Griffin, who was secretary and treasurer of the Hessig-Ellis Drug Company of Memphis, testified that he was in charge of the credit department. That his company never received any notice from Higginbotham and son that their partnership had been dissolved. That there was a consolidation and merger of the drug companies as above set out, and that the appellant became the owner of all accounts, notes and evidence of indebtedness due each and all the former named com-panies. Witness company had sold the Pollard Company for years, and they had always discounted their bills.
W. K. Love, vice president, testified that J. N. Higginbotham, Sr., came to the office in Memphis in the fall of 1924, and stated that he and his son owned the Pollard Drug Company at Pollard, Arkansas, and that they were going to open a branch drug store at Bernie, Missouri, which his son would operate, and stated that they needed fixtures, merchandise, stock, etc. “J. N. Higginbotham stated that he would go back to Pollard, talk the matter over with his son and let us know. We requested that they send us a statement. Received statement signed Pollard Drug Company, J. N. Higginbotham, showing that they were partners. Stock and fixtures were to be at Bernie, Missouri, and J. N. Higginbotham, Sr., and J. N. Higginbotham Son, were to be the owners. Both stores were to be owned by the partnership. We knew nothing of the partnership being dissolved.” Witness introduced a number of letters and statement signed by J. N. Higginbotham.
J. N. Higginbotham testified his son Jewell N. Higginbotham was never a partner in the Pollard Drug Store, that he never owned any interest in it, and the witness never made a statement to any one or held out that he was a partner; that he did not say when in Memphis that he and his son were partners; did not state that he and his son were opening a store at Bernie, Missouri, as partners. Never said anything that would lead them to believe that they were partners. He told them that he was helping his son; that the business was his son’s. He helped his son to start in business by giving him $1,000 in cash and became responsible for $1,500, which was paid. Did not make the statement introduced and signed J. N. Higginbotham. Did not sign it. Witness never knew the statement had been made until yesterday. Did not sign the note introduced in evidence. Did not buy any of the goods mentioned in the account and did not authorize anyone to buy them. ‘ ‘ They never required me to make a financial statement. ’ ’ Witness pays cash all the time. Does not owe appellant a cent. “Don’t know why my son would say we were partners when we were not.”
A. F. Grider, cashier of the bank at Pollard, testified that he was well acquainted with J. N. Higginbotham. Has known him for ten or fifteen years. He does business with witness’ bank. Handles a great many checks and knows Higginbotham’s signature. The $986 note is not signed by him. It is not his signature on the financial statement either. Understands J. N. Higginbotham, Sr., owns Pollard Store. Knew Jewell established a store at .Bernie. Understood he owned it. Doesn’t know if the father has any interest in it.
J. B. Blakemore was cashier of Bank of Pollard up to February, 1925. As cashier of the bank was familiar with Mr. Higginbotham’s signature. It is not his signature on the note.
Jewell N. Higginbotham testified that he operated the store at Bernie, and his father had no interest in it. Witness executed the note sued on, and his father had nothing to do with it. He made the credit report. His father never authorized him to do it; didn’t think he had any knowledge of it. The note sued on was not made for opening stock. “That note was paid and I have it. It was no partnership stock, the stock was sold through bankruptcy, and Hessig-Ellis bought it in some way.” Witness wrote all the letters mentioned in the suit. His father knew nothing about them. “The store was being put up at Bernie and they asked for a credit statement of the Pollard Company and asked in their letter to give in that statement my name and my father’s name. I did but failed to scratch off the partnership in the blank. I did not mean to say we were partners.”
Robert E. iSimpson testified that he was a brother-in-law of Jewell and learned that Jewell owned the store at Bernie.
F. L. Slaughter testified that he was a salesman for Paragould Wholesale Grocery Company and knew both Higginbothams, had never heard that the store at Bernie belonged to any one except Jewell.
Appellant insists that the cause should be reversed because one of the jurors, Mr. Aussa Aud, stated after he got into the jury room that he was a salesman for another drug company and knew all about the facts in the case being tried, and that the defendant should win, and that by reason thereof other jurors voted for the verdict for the defendant. That said juror was prejudiced in said cause and not a qualified juror, and his statements influenced the jury wrongfully. While appellant stated in its motion for new trial that the juror was asked questions for the purpose of ascertaining his qualifications, and that he answered that he kneiy nothing about the facts, there was no evidence on this question submitted to'the court, and the record does not show anywhere that these questions were asked.
In the case of Fones Bros. Hardware Co. v. Mears, arde p. 533, we said: “It is true that the bill of exceptions does not show any questions asked, either by the court or appellant’s counsel, of the jurors to ascertain whether they were related to either of the parties, and does not in fact show that Charley Slocum was a member of the jury returning the verdict, and also the bill of exceptions does not contain the so-called motion in arrest of judgment with the affidavit disclosing the relationship of the juror to the appellee, the motion and affidavit being brought up by certiorari. The majority is of the opinion that in the state of the record there was no such showing of due diligence made by the objecting party, (the objection being made to the juror after the return of the verdict for the first time) as would require the granting of the motion .to refuse to enter judgment on the verdict and refusing to grant the motion for a new trial on the ground of the alleged relationship of the juror to appellee. As heretofore held, it is a matter of discretion of the trial court as to whether the verdict should be set aside when objection is made to a juror after the verdict for the first time, and the majority of the court from the state of the record is not able to say that the court abused its discretion in overruling the motion and refusing to grant a new trial because of the-alleged relationship.”
It may also be said in the instant case that the juror, Aud, did not become a member of the jury with' the knowledge that he was disqualified. According to the affidavit filed with the motion for new trial, the juror discovered that he was disqualified or that he knew about the facts after the trial began and after evidence was introduced. The evidence introduced at the trial brought to his mind the facts that he already knew 'but which did not occur to him until after the trial began. Lawyers might and sometimes do accept a jury to try a case without asking them any questions at all as to their qualifications, and, when they do this, they cannot then, after the verdict, avail themselves of a fact that the juror did not possess the necessary qualifications. Persons, if they wish, may submit their controversy to any persons, whether qualified or not, and be bound by the verdict. The only way we could know whether the jurors were qualified as to their qualifications, would be from an examination of the record, and the record in this case does not show any examination of the jurors at all as to their qualifications. If a disqualified juror sat on a jury and the necessary questions as to his qualifications had been asked, we would have a different question, or, if the statement in the motion for new trial, when submitted to the court, had been supported by evidence of witnesses that the questions were asked and answered as alleged, the court might be authorized to set aside the verdict, but, with no showing in the record and no evidence supporting the motion for new trial, the mere statement in the motion for new trial is insufficient. The appellant does not abstract his motion for new trial and does not abstract the instructions.
It is next insisted by appellant that the case should be reversed because the court erred in permitting R. E. Simpson and others to testify as to what they had heard the Higginbothams say. After the evidence was introduced, the appellant’s attorney then said: “What does t-he court say?”, and the court said: “If that was before all this transaction came up, that is the only way he could have to get it in here”; and the appellant then said: “Exceptions noted.” There was no request to exclude this evidence from the consideration of the jury, and the court evidently intended to hold that the evidence of holding out as a partnership was competent, and that declarations of persons as to what they understood about it was competent, but, as we have said, even if this were error, appellant to avail himself of it should have requested that it be excluded from the consideration of the jury.
• It is next insisted by appellant that the court erred in giving instructions to the jury, but the instructions are not set out, and only a part of the instruction objected to is set out. Crosby v. Lucas, 180 Ark. 277, 20 S. W. (2d) 861 ; Bailey v. Florsheim Bros. Dry Goods Co., 180 Ark. 293, 21 S. W. (2d) 171 ; Meyers Stores Inc. v. Wursburg, 180 Ark. 532, 21 S. W. (2d) 969. The objection however, is unavailing for another reason. There was no specific objection to the instruction, and the instruction was not subject to a general objection. We think that the great preponderance of the evidence, even if the evidence objected to is excluded, is in favor of the appellee.
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Butler, J.
The appellant, C. B. Finch, was the owner of 220 acres of woodland on which there were no improvements except a dwelling house. He was desirous of putting' this land in cultivation, and on the first day of January, 1928, entered into an agreement with the appellee, J. I. Russell, by which the latter was to move into the dwelling- house upon the land and clear twenty acres of land in the early part of 1928 before the time for planting a crop. In 1929 he was to clear forty acres of land, more or less, and so on each year until the entire tract had been placed in cultivation. For clearing- the land he was to receive $8 per acre and the use of the land cleared for one year, after which time he was to pay $8 per acre for such land as had been used by him one year and $10' an acre thereafter. Finch was to build from time to time such tenant houses as were needed and as the land was cleared ready for cultivation. In 1928 Russell cleared and made ready for the plow thirty-five acres of land, but cultivated in that year eighteen acres only olf the land cleared. In 1929 he cleared forty-three acres of land and cultivated the entire thirty-five acres cleared in 1928, and eleven or twelve acres of the land cleared in 1929. Finch did not erect any tenant houses in the spring of 1928 or at any time in 1929, although Russell testified that he would repeatedly ask him to build tenant houses so that Russell might secure tenants to cultivate the land cleared as he was able only to cultivate a limited acreage himself.
There was a settlement between the parties in November, 1929, in which a disagreement arose as to the amount of rent Russell o-wed, Finch claiming that in 1929 he was due $8 per acre for the entire thirty-five acres cleared in 1928, while Russell claimed that under the contract he was to pay rent only on such land as he had cultivated one year and as he had only cultivated eighteen acres of the land cleared in 1928 he owed rent only ou that number of acres for its use in the year 1929 at $8 an acre; and that his failure to cultivate all of the land cleared in 1928 was occasioned by the neglect of Finch to build a tenant house. This disagreement resulted in Finch giving Bussell notice to quit and surrender the property and in the filing of a complaint in unlawful detainer on January 13,1930, for the possession of the land and to recover $50 rent money alleged to he due, followed by the eviction of Bussell from the land (by the sheriff. On February 3, 1930, Bussell answered denying the allegations of the complaint and that he had breached any of the terms of the contract, and alleging that he was ready and willing to continue in the performance of the same, and by way of cross-complaint claimed damages in the sum of $2,600 for the breach of the contract by Finch and for damages sustained on account of his eviction from the premises. There was a trial of the issues joined and on the 6th day of February, 1930, the jury returned a verdict in favor of the appellee Bussell on his cross-complaint in the sum of $309.08 upon which judgment was accordingly rendered. From that judgment Finch has duly appealed to this court. The appellee Bussell has also taken a cross-appeal in which he seeks for a modification of the judgment by directing that the possession olf the land foe restored to the appellee.
The appellant contends here that the verdict is contrary to the evidence,, that the court erred in its instructions to the jury on the measure of damages, and lastly that the verdict is excessive. There was a purported written contract introduced in evidence signed by the appellant, which contract was not signed by the appellee. That part of the contract about which there is a difference of opinion as to* its meaning’ is as follows: “Party of the first part (Finch) agrees to pay J. I. Bussell, party of the second part, $8 per acre for clearing 220 acres of land in section 12, township 13, range 5, beginning on the southwest 401 acres. Party of the second part agrees to clear 20 acres or more by crop time in 1928 and 40 acres each year more or less thereafter and is to have all the crop free of rent. Party of second part agrees to pay party olf first part eight dollars ($8) per acre cash rent for all cleared land for the second year and ten dollars ($10) per acre thereafter if conditions warrant, or party of the second part can turn the said cleared land hack to party of the first part and continue on with his contract.”
The appellee testified that he understood the contract to he that fey the expression “and is to have all the crop free of rent” and by the further expression “party of the second part agrees to pay party of the first part $8 per acre cash rent for all cleared land for the second year” that he was to receive $8 per acre if or clearing the land and the first crop grown thereon free of rent, and that the second year thereafter he was to pay $8 per acre. It was the contention of the appellant that by these expressions in the contract he meant that appellee should receive $8 per acre for clearing the land, with the privilege of cultivating it in the same year in which it was cleared free of rent, and that, regardless of whether the cleared land was thus cultivated or not, he was to receive $8 per acre rent for it the year following the one in which it was cleared. We are of the opinion that the contract is ambiguous in these particulars, and the court properly submitted it to the jury for determination under the testimony and surrounding circumstances as to what was really intended.
There was evidence to the effect that the appellee lost the use of seventeen acres of land cleared in 1928 and thirty-two acres cleared in 1929 because of the failure of the appellant to provide tenant houses as had been agreed; that on similar land which he had been able to cultivate himself and which was cleared by him in the years mentioned he had produced a bale of cotton per acre. It was also' in evidence that the appellee without fault on his part was wrongfully evicted from his home in severe weather to which his family and stock were exposed, and that the moving of his household furnishings, implements and feed for his stock, etc., was done at some expense; that he was forced to expend $5 up to the time of the trial for a temporary shelter for himself and family, and that his stock during all of the time from his eviction were exposed to the weather without shelter. There is no testimony as to the amount of damages in dollars and cents to the farm animals, by reason of such exposure or of the cost incurred in moving after the eviction, but for all of this and for the loss of the use of the land which appellee had cleared the jury allowed only the sum of $309.08. "While we do not wish to be under-' stood as approving the form and verbiage of the instructions given by the court to the jury on the measure of damages, we do not think the jury was misled by them or that the appellant was prejudiced thereby. On the whole case we are of the opinion that the evidence sustained the verdict.
As the appellee was awarded damages for loss of the use of the land, in accordance with the prayer of his complaint, the court properly overruled his motion for modification of the judgment restoring him the possession, for that contention is inconsistent with the relief prayed and awarded.
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Frank Holt, Justice.
Appellant sought to set aside a conveyance of land by her deceased husband, Emanuel Watson, and herself to appellees, Stewart Landes and his wife, Gloria Landes. The chancellor dismissed appellant’s third party complaint and refused to set aside the conveyance. For reversal of that decree, appellant contends that the conveyance should be cancelled inasmuch as Emanuel was not competent to know the nature of the transaction in which he participated. Appellant bases this contention on Emanuel’s advanced age, 100 years old at the time he signed the deed, and inadequate consideration received for the land. We think the appellant is correct.
The appellee administrator brought suit to foreclose a mortgage in the sum of $1,000.55 bearing 10% interest per annum, together with a 10% attorney’s fee. The mortgage was executed in 1966 on property then owned by Charles Watson, Emanuel’s son by a former marriage. A few months later Charles died intestate and Emanuel, being the sole heir, inherited the encumbered property. At that time Emanuel was 100 years of age. He died four years later. Reather instituted her third party complaint in the pending foreclosure proceeding. As indicated, she contends that her aged husband was not competent to transact the sale of their land which was attended by inadequate consideration.
In the oft cited case of Kelly’s Heirs v. McGuire, 15 Ark. 555 (1855), the court announced that if one is “of such great weakness of mind, as to be unable to guard himself against imposition, or to resist importunity or undue influence, a contract, made by him under such circumstances, will be set aside. And it is not material from what cause such weakness arises. It may be from temporary illness, general mental imbecility, .... the infirmity of extreme old age.” The fact that a grantor is old and in feeble health is a circumstance bearing on the question of mental capacity as is gross inadequacy of price. Campbell v. Lux, 146 Ark. 397, 225 S.W. 653 (1920), McEvoy v. Tucker, 115 Ark. 430, 171 S.W. 888 (1914). Of course, we will not set aside contracts for mere inadequacy of price. Hawkins v. Randolph, 149 Ark. 124, 231 S.W. 556 (1921). The grantor’s disability must render him incapable of “intelligently comprehending and acting upon the business affairs out of which the conveyance grew, and to prevent him from understanding the nature and consequences of his act.” McEvoy v. Tucker, supra. Each case dealing with mental capacity must be decided on its own peculiar facts and circumstances. Hawkins v. Randolph, supra.
Our cases appear in conflict as to the evidentiary standard which is required to establish mental incapacity in the making of a deed. One line of cases holds that only a clear preponderance of the evidence is the required standard of proof. Campbell v. Lux, supra, and McEvoy v. Tucker, supra. However, other cases apply the usual quantum of proof which is required to set aside and cancel a deed: i.e., clear, cogent and convincing evidence. Whatley and Wright v. Corbin, 252 Ark. 561, 480 S.W. 2d 142 (1972), and Braswell v. Brandon, 208 Ark. 174, 185 S.W. 2d 271 (1945). Braswell was relied upon in Whatley and Wright as precedent for the clear, cogent and convincing standard with respect to mental capacity. However, neither Campbell nor McEvoy, the earlier cases, were recognized in Braswell which enunciated the stricter evi-dentiary requirement by citing Stephens v. Keener, 199 Ark. 1051, 137 S.W. 2d 253 (1940). Significantly, Stephens did not deal with mental incapacity as grounds for setting aside a deed. There, mistake and inadequate consideration were the issues.
We take this occasion to resolve the inconsistency in favor of the less strict quantum of proof which requires only a preponderance of the evidence as pronounced by our earlier cases. The rationale is that we can perceive no basis to establish a different standard of proof involving the mental capacity to make a deed from our rule with respect to the mental capacity to make a will. Both are solemn written instruments. We have long recognized the preponderance test as being our guideline in weighing the evidence of testamentary capacity. Short v. Stephenson, 238 Ark. 1048, 386 S.W. 2d 501 (1965). Applying this standard we now review the evidence in the case at bar.
There is little doubt that Emanuel had grown feeble and incapacitated in his old age. About ten years preceding this questioned conveyance, he had suffered a stroke and since that time was unable to work. Readier testified that his stroke impaired his mind and severely limited his ability to function physically and mentally. She was instructed by his doctors not to do anything to disturb or aggravate him. In June, 1966, Landes, the purchaser, came to their house and, after she dressed her husband, he accompanied Landes to view the property. The next day, Landes returned with the necessary legal papers for the conveyance which Emanuel signed. Readier signed the papers only after Emanuel became agitated at her reluctance. The next morning Emanuel inquired if she had seen the word "Deed” on the papers. When she confirmed that she had, Emanuel gave her the $200 check Landes had given him and directed her to take the check to Landes and demand a return of the papers they had signed. Landes refused to do this, stating he would only give them to Emanuel. Two weeks lapsed before Emanuel was physically able to go to Landes’ office. At that time, Emanuel was told that the land had been sold. He left Landes’ office crying.
Other witnesses corroborated Reather’s testimony that due to Emanuel’s stroke and age, he was unable to look after his business affairs. A lifetime acquaintance testified that due to Emanuel’s stroke and age, he was unable to conduct business affairs and that she, as a frequent visitor, assisted in getting Emanuel in and out of his bed. Further, following his stroke, “[H]is mind would come and go and sometimes you knew what he was talking about and sometimes you didn’t.” When Emanuel learned his property would not be returned, he went to a local attorney’s office and left the $200 check with him. This attorney had practiced law in the locality since 1922 and it appears that he was well acquainted with Emanuel since this time. He testified that Emanuel came to his office frequently before his stroke which was about ten years before the conveyance in question; that since then "he had failed very fast;” that "[Y]ou had a hard time explaining anything to him and he had a hard time understanding anything you tried to tell him;” that at the time the deed was made to Landes, Emanuel had only been released from the hospital a few days; that each time he went to the hospital "he was expected to die;” and “he couldn’t remember where he ended up and he didn’t understand quite why he made the deed and actually he didn’t know why.” At that time about $1,000 was owed on the mortgage of the 67.5 acres. The mortgage was not due for another two years. This attorney testified that he was familiar with the property and described it as “good up hill land.” “It was in pasture and in some timber also.” Since he had bought and sold land in this locality, he estimated that Emanuel’s land had a value of $100 per acre or $6,750. The attorney believed that Emanuel was not competent at the time of executing the deed and should have had a guardian because “[H]is mind was confused and he couldn’t comprehend anything.”
The appellees adduced evidence from one witness that he had known Emanuel since 1942 and had visited with him on many occasions during which he had made tape recordings for the local county historical society. Some of these occurred about the time of the conveyance in question. It was his opinion that Emanuel had a clear and lucid mind and he was “amazed at his clear recollection and clear consistency when he repeated things.”
The Landes attorney testified that Emanuel came to his office in June, 1966, which was a few months after he had inherited the property from his son; that he wanted to deed the land to the mortgagor who held the $1,000 mortgage; that he advised him to try to sell the land for more than the mortgage; that he called Landes who was advised that the land was worth more than the mortgage and suggested he contact Emanuel. Two days later Emanuel and Readier conveyed the property to Landes for $200 plus assumption of the mortgage. It appears that Emanuel was worried that he could not raise the money to pay off this mortgage. Landes testified that he viewed the property and learned that in addition to the $1,000 mortgage there was a lifetime lease on the land held by Nelson Young, a friend of Emanuel’s, and after Nelson’s death, Nelson’s wife would have possession of the land until her demise. Both were in their sixties. The lifetime lease provided that timber could be removed from the land along with fences and buildings. He testified that it was decided that the property was not worth anything in view of the mortgage and the lease; however, $400 would be paid. It is undisputed that only $200 was ever paid. He further testified that since the conveyance he understood that Nelson Young and his wife were both deceased.
Landes was unaware that at the time Emanuel signed the deed he was recently released from the hospital. However, he was aware that Emanuel was feeble and had suffered a stroke. Landes believed that Emanuel sold him the property because of the mortgage and did not learn until he bought the land that the $1,000 mortgage was not due for two years. Emanuel’s actions and behavior did not cause him to believe that he was unable to comprehend the validity of the conveyance.
In summary, Emanuel was 100 years old at the time of the conveyance of the deed; he had suffered a stroke a few years previously affecting him mentally and physically; the day following the conveyance he attempted to rectify it; he had to have constant care and attention as to his physical condition and was released from the hospital only a few days previously; only a $1,000 mortgage existed on the 67.5 acres at the time of the conveyance; the mortgage was not due for another two years; only $200 was paid by the purchaser, although he stated it was “decided” $400 would be a fair payment; the lifetime lease was being held by a couple in their sixties who were dead at the time of this action in 1970; the only witness who testified as to familiarity with the property and who had bought and sold property in the locality placed a value of $100 per acre or $6,750 upon the land. We hold that the evidence required to cancel this conveyance was met by the appellant and clearly preponderates in her favor. McEvoy v. Tucker, supra, and Campbell v. Lux, supra. Furthermore, in the case at bar, even if we apply the stricter requirement of clear, cogent and convincing evidence, we hold that the appellant has also met that burden of proof.
Again we must take this occasion to reiterate, in the circumstances, our disapproval of an attorney testifying in an action in which he is an advocate. See Montgomery v. 1st Nat’l. Bank of Newport, 246 Ark. 502, 439 S.W. 2d 299 (1969), Old American Life Ins. Co. v. Taylor, 244 Ark. 709, 427 S.W. 2d 23 (1968), and Rushton v. First Nat’l. Bank of Magnolia, 244 Ark. 503, 426 S.W. 2d 378 (1968).
The decree is reversed and remanded for proceedings not inconsistent with this opinion.
Reversed and remanded.
Harris, C.J., not participating. | [
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Per Curiam.
Sentence was pronounced upon the defendants on the 27th day of June, 1930, and the transcript on appeal was filed in this court on August 15, 1930. No brief was filed by the defendants. The State filed its motion to affirm the judgment on October 16, 1930. 'The defendants filed their motion to require the stenographer to transcribe his- notes on October 20, 1930. The stenographer was at all times amenable to the order of the circuit court in the matter of transcribing his notes. The circuit court did not (by reason of the appeal lose its .jurisdiction to compel him to fulfill the ministerial duties of his office in the case. Therefore, the defendants should have taken earlier steps to enforce their rights in the premises; and, having failed to do so, the case is before us as one where there is no bill of exceptions. There is no error apparent from the face of the record, and it follows that the judgment must be affirmed. | [
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Smith, J.
J. E. Hicks, a citizen of England, Arkansas, died testate on February 13,1928, and by his will disposed of a large and valuable estate. Devises were made to numerous relatives, friends and charities, after which a paragraph provided that his sisters should be residuary legatees for their natural lives for all property not otherwise disposed of. This followed the recital that it was the purpose and desire of the testator “to make a complete will and disposition of all my property. ’ ’
A very considerable portion of the whole estate was included in this residuary clause, a part thereof being an apartment house in the city of Hot Springs known as the Kevin Apartments, and referred to by the witnesses as the Kevin.. This apartment, at the time of the testator’s death, was in the possession of Mrs. Julia Rose, and when she refused, after demand, to surrender possession, a suit in unlawful detainer was brought by the executors and the sisters of the testator, the residuary legatees, to recover possession.
Mrs. Rose filed an answer and cross-complaint, in which she asserted title to the Kevin Apartments under a contract which she alleges was made with Mr. Hicks whereby he agreed to devise the apartment to her. This contract contemplated that Mrs. Rose should devote as much of her time and attention to Mr. Hicks as he might desire. A choice room was reserved in the apartment for him, and Mrs. Rose alleged and testified that it was agreed that she would become Hicks’ companion when he wished, that she would nurse him when .he was sick, and prepare special food at his order during his frequent visits to Hot Springs, and that she fully complied with her contract. That in view of this contract Hicks bought the Kevin Apartments, and turned it over to her. The building required renovation and repairs, which work was superintended by Mrs. Rose, and she thereafter occupied it pursuant to Hicks ’ agreement to devise it to her, and she testified that Hicks told her that he had made a will under which the apartment had been devised to her.
The court found the fact to be that Hicks had contracted with Mrs. Rose to devise the Kevin Apartments to her, but that it was not such a. contract as the court would order tó be enforced. The court further found that, in reliance upon this contract to devise, Mrs. Rose had rendered Hicks valuable services, and had improved the property, and had been induced to sell her lease on the Chicago Hotel and Cafe at a loss for the purpose of taking over the Kevin Apartments. The court charged Mrs. Rose rent on the apartment for twenty-nine months at $75 per month, but credited her with $30 per month for the room reserved for Mr. Hicks. There were twenty-three rooms in the entire apartment, in addition to the halls and bathrooms. After balancing the accounts, the court ordered the possession of the apartment to be delivered to plaintiffs, and rendered judgment for Mrs. Rose in the sum of $4,193.26. Plaintiffs have appealed, and Mrs. Rose has perfected a cross-appeal.
It is insisted that the contract which Mrs. Rose seeks to enforce, even if made, was an immoral one and contrary to public policy, and therefore void, for the reason that, although she was not living with her husband, she was, nevertheless, a married woman, and her husband, and he alone, was entitled to her consortium, and she could not contract the right thereto to another.
We do not decide this controversy for the reason that, in our opinion, the testimony fails to establish a contract to devise the apartment to Mrs. Rose. A number of witnesses gave testimony in Mrs. Rose’s behalf which corroborates her contention to some extent, but only Mrs. Rose herself and two men gave testimony of a character sufficient to show that there was a contract to devise. The relation of these two men to the defendant is such that their testimony deserves but little consideration, and it is very questionable whether Mrs. Rose’s testimony was admissible at all. Section 4144, C. & M. Digest.
But, pretermitting these questions, we are of the opinion that the testimony fails to establish a contract to devise. There was unquestionably a contract between the parties which induced Mrs. Rose to sell her lease of the Chicago Hotel and Cafe to assume charge of the Kevin, and, pursuant to this contract she performed services for Hicks in the way of nursing him and preparing special foods for him.
It so happens that Mrs. Rose and Mr. Hicks had a written contract in regard to the Kevin, and we think its recitals and the conduct of the parties in the discharge of its provisions negatives the idea that Hicks had given her the apartment or that he had contracted to devise it to her.
This lease contract was made on the.........day of March, 1926, and provided that Mrs. Rose should pay a monthly rental “of one-half of the gross income, after the light and water bills have been deducted therefrom.” Mrs. Rose was required to furnish a monthly statement of receipts and expenses. It was further provided that “either party may terminate this contract by giving the other party fifteen (15) days’ notice. In case of a sale of this property covered by this contract, the lessee will immediately vacate without any notice.”
Other provisions of the contract were as follows:
“If a sale of the property is made after the expiration of twelve (12) months, but within two years from date hereof, the lessor will pay to the lessee out of the profits derived from the sale of $1,000. If a sale of the property is made after two years from date hereof, the lessee will receive one-half of the profits derived therefrom. The profits will be ascertained 'by deducting the purchase price paid by the vendor and the cost of any improvements made to or placed on the property from the sale price. The profits promised herein to the lessee are made with the understanding and upon the condition that she is occupying the property at the time of the sale, and the further condition that this contract shall not have been terminated. For the purpose of terminating this contract, it is not necessary that the party terminating it advance any reason or make any explanation to the other for his or her act in bringing this contract to an end. The beginning of this contract will be on April 1, 1926, at which time the leased premises will be given unto the lessee’s possession.
“In witness whereof, the parties have hereunto set their hands in duplicate on the day and date first above written. ’ ’
A number of remittances were made by Mrs. Rose for rent under this contract, but she later complained that the contract was unfair, in that Hicks should pay half of all the expense of operation, whereas the contract required him to pay only one-half of the light and water bills. In the voluminous correspondence between the parties set out in the record she did not appear to have made any other complaint about the contract or to have suggested that it did not fully recite the agreement of the parties in regard to its subject-matter.
A large amount of testimony was taken as to the nature of the services rendered by Mrs. Rose and their value, but there appears in the record a letter which we think should be conclusive of this question.
Mrs. B. N. Florence, a practicing attorney at Hot Springs, testified that Mrs. Rose was referred to her by an acquaintance, and that Mrs. Rose conferred with her in regard to this controversy. She agreed to represent Mrs. Rose if the matter could be compromised and settled without litigation, and accepted employment with the understanding that she would not prosecute any litigation if this became necessary. Pursuant to this authority she wrote Mr. Hicks a letter, which the plaintiffs offered in evidence. This, letter enumerated Mrs. Rose’s demands, including the remodeling of the Kevin Apartments. The letter referred to the sale of the Chicago Hotel and Cafe, and concluded with the statement that a total of $1,000 was due Mrs. Rose, and demand was made for its payment. Hicks answered this letter and denied that he owed Mrs. Rose anything, and this terminated Mrs. Florence’s connection with the case.
, The testimony of Mrs. Florence appears to have been admitted without objection, although the introduction of the letter was objected to. Mrs. Rose testified that this letter was written without authority, but we accept as true Mrs. Florence’s statement to the contrary. The objection to the letter is that it was a professional and confidential communication, .and therefore privileged. We do not think so. The letter was written to Hicks, a third party, and there was no relation of attorney and client between Mrs. Florence and Mr. Hicks. Vittitow v. Burnett, 112 Ark. 277, 165 S. W. 625 ; Vanness v. Vanness, 128 Ark. 543, 194 S. W. 498 ; Kilgo v. Continental Casualty Co., 140 Ark. 336, 215 S. W. 689 ; Blackburn v. Blackburn, 170 Ark. 823, 281 S. W. 391.
The letter was not objectionable as an offer of compromise. It did not propose to take less than the whole amount due in satisfaction of the demand. It stated the total amount due to be $1,000. This letter was written at a time when the relation between Mrs. Eose and Hicks had become somewhat strained and was evidently approaching the breaking point. This is evidenced by the correspondence about this time. The letter was written on the 11th day of January, and Hicks died on the 13th of the following month. There is no intimation in this letter that Mrs. Eose claimed any interest in the apartment itself, nor is there any intimation in any of the numerous letters passing between Mrs. Eose and Hicks that she claimed any interest except that evidenced by her lease.
We.have carefully considered the excellent briefs which have been filed in this case, and have concluded that equity will be done by balancing accounts between Mrs. Eose and Mr. Hicks after allowing her claim as of the date of his death in the sum of $1,000, and, as she appears to have paid the 1929 taxes amounting to $143.26, she will be allowed that credit also. Against the total of these amounts, aggregating $1,143.26, she will be charged rent on the apartment at $75 from the date of Mrs. Hicks’ death, as she gave bond to retain possession, and will be charged at that rate up to the date of the surrender of the possession of the apartment.
The decree awarding plaintiffs possession of the building will be affirmed.
Upon a consideration of the entire testimony, we have concluded that it would be equitable to assess the costs in the court below against plaintiffs, and those on the appeal against the defendant, Mrs. Eose. | [
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Butler, J.
This case, in all its essential particulars, was before this court and here decided in the case of Blackwell Oil & Gas Company v. Maddux, 181 Ark. 726, 27 S. W. (2d) 514. Pending the appeal in that case, appellant instituted this proceeding in the chancery court setting out in its complaint the same state of facts as that involved in Blackwell Oil Gas Company v. Maddux, supra, with the additional allegation that, since the judgment of the trial court in that case, Thomas W. Flake, the defendant, against whom judgment had been rendered on service based on a warning order, had appeared, and, permission of the court having been granted, filed his answer in which he made specific denial of the allegations of the plaintiff, Maddux, and denied that he was indebted to the said plaintiff in any sum; and that the Blackwell Oil & Gras Company, as garnishee, whose indebtedness to Flake had been found to be the sum of $7,400, was ordered to pay that sum into the registry of the court, or to execute a bond conditioned that, if the appeal taken by the garnishee to the Supreme Court should be dismissed or the judgment affirmed, the garnishee would perform the orders and judgment of the court; that thereafter the answer was withdrawn, and a stipulation of settlement made between Maddux and Flake in which an indebtedness of $5,000 was acknowledged by Flake, and that judgment might be entered in favor of Maddux against Flake for that amount: that thereupon .judgment for that amount was accordingly entered; that subsequently and during the same term of the court, on motion, that judgment was canceled, and in lieu thereof a judgment by consent was entered against Flake in favor of Maddux in the sum of $7,400.
The appellant, in his complaint, further alleged that the consent judgment last named was and is a fraud upon the court and upon the complainant, and that the stipulation and consent judgment were the result of a conspiracy between Maddux and Flake and made for the purpose of defrauding the complainant, and that it had a meritorious defense if permitted to make the same, in that it was not indebted to Thomas "W. Flake in any sum whatever. To this complaint the appellee here demurred setting out a number of grounds, which demurrer was sustained by the court, from which order and judgment is this appeal.
The appellee interposed fourteen grounds of demurrer, the eighth, twelfth and fourteenth grounds being statements in varying language of the same ground as set out in the seventh, which is: “ That the complaint, on its face, shows that the complainant on the 31st day of August, 1929, filed a petition in the circuit court in and for Johnson County, seeking to avoid the .judgment which the complainant now seeks to avoid, and that the circuit court on the 12th day of December, 1929, dismissed said petition and dissolved the injunction theretofore issued,” and “Eighth: That the complaint, on its face, shows that the complainant appealed to the Supreme Court from the order dismissing the petition, and that the order of the circuit court in dismissing said petition was duly heard by the Supreme ’Court and the order of the circuit court in dismissing said petition was affirmed by the Supreme Court.” An examination of the complaint bears out the statements made in the demurrer and shows that all of the material allegations! contained therein had been heard and determined in the case heretofore adjudicated and reported in the 181 Arkansas, supra. It is a judicial axiom that a judgment or decree of a court of competent jurisdiction directly upon the point, or upon all such matters as are necessarily within the issues and might have been litigated in that suit, are conclusive between the same parties or their privies when brought into question in a subsequent suit. This principle was recognized in the case of Peay v. Duncan, 20 Ark. 85, and has been consistently followed and reaffirmed whenever the question has arisen. The last expressions on the subject are found in Robertson v. Evans, 180 Ark. 420, 21 S. W. (2d) 610, and in American Company of Ark. v. Wheeler, 181 Ark. 444, 26 S. W. (2d) 115. In the latter case it is said: “It is a rule of universal application that a question of law in issue in a former suit, and which was there judicially determined, is conclusively settled by the judgment thereon in so far as the parties to that action and persons in privity with them are concerned. The matter concluded by the judgment could not be again litigated in any future action between such parties or privies in the same court or in any other court of concurrent jurisdiction upon the same cause of action.”
The meritorious defense offered in the instant case is that Blackwell Oil & Gas Company, • garnishee in the case of Maddux v. Flake, was and is not indebted to Flake in any stun whatever. This identical question was raised in a former proceeding and the question determined adversely to the contention of the appellant here. Blackwell Oil & Gas Co. v. Maddux, 181 Ark. supra. Therefore, the doctrine announced in Peay v. Duncan, and Robertson v. Evans, and American Co. of Ark. v. Wheeler, supra, applies.
It follows that the decree of the trial court in sustaining the demurrer and dismissing the appellant’s complaint must be affirmed. It is so ordered. | [
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Conley Byrd, Justice.
Petitioner, Wayne R. Williams, being charged in Miller County with the offenses of False Pretenses, Ark. Stat. Ann. § 41-1901 (Repl. 1964), and Bribery, Ark. Stat. Ann. § 41-901 (Repl. 1964), asks this Court to prohibit Respondent, Otis Turner, Judge of the Miller County Circuit Court, from proceeding with a trial upon .«hose charges in Miller County on the theory that Miller County has no jurisdiction of the offenses charged. We agree with petitioner and grant the writ.
The false pretense information as finally amended alleges:
“. . . The said defendant on or about the 10th day of September in Clark County, Arkansas did unlawfully and feloniously with the intent to defraud and cheat B. F. Wheat, Jr., of the sum of $5,000.00, $4,-000.00 of which is to be paid in Miller County, Arkansas, by falsely, fraudulently and designedly stating to the said B. F. Wheat, Jr., that for said sum, to be paid to certain influential individuals, the son of B. F. Wheat, Jr., Frank S. Wheat, would receive a certain sentence in the felony case then pending against him in Clark County, Arkansas, and would be ‘free of prison’; Wayne R. Williams further stated to B. F. Wheat, Jr., that a probated or suspended sentence ‘has been arranged with the judge’ indicating that the Circuit Judge in Miller County, Arkansas, was to receive part of the payment, which statements were false and were known at that time by Wayne R. Williams to be false and the false representations and pretense were relied upon and believed by the said B. F. Wheat, Jr., in violation of Ark. Stats. 41-1901.”
The bribery information as finally amended charged petitioner with the crime of bribery committed as follows:
‘‘The said defendant on or about the 10th day of September, 1973, in Clark County, Arkansas, did willfully, unlawfully and feloniously directly pay and promise to pay a bribe of money in Clark and Miller Counties, Arkansas, to an officer of the State of Arkansas, a person holding a place of trust under the laws of the State of Arkansas, with the intent to influence the actions, decisions and recommendations of said officer in the prosecution of Frank S. Wheat, a defendant in a criminal case then pending in the Circuit Court of Clark County, Arkansas, in violation of Ark. Stats. 41-901.”
Our Constitution Art. 2, § 10 guarantees an accused a “public trial by an impartial jury of the county in which the crime shall have been committed.” This court, immediately after the adoption of the Constitution of 1874, recognized that this provision of the Bill of Rights was jurisdictional and held that the legislature could not direct or permit a trial in the county other than where the offense was committed.
Respondent recognizes the jurisdictional limitations but argues here that the information allege the crimes were committed in two counties. In doing so Respondent contends that the the jursidiction is controlled by Ark. Stat. Ann. § 43-1414 (Repl. 1964), and Ark. Stat. Ann. § 43-1426 (Repl. 1964) together with the interpretation that we gave to them in Hill v. State, 253 Ark. 512, 487 S.W. 2d 624 (1972). Arkansas Statutes § 43-1414 provides:
“Where the offense is committed partly in one county and partly in another, or the acts or the effects thereof, requisite to the consumation of the offense, occur in two (2) or more counties, the jurisdiction is in either.”
Arkansas Statutes § 43-1426 provides:
“It shall be presumed upon trial that the offense charged in the indictment was committed within the jurisdiction of the court, and the court may pronounce the proper judgment accordingly, unless the evidence affirmatively shows otherwise.”
In Hill v. State, 253 Ark. 512, 487 S.W. 2d 624 (1972), we had before us a charge of disposal of mortgaged property, Ark. Stat. Ann. § 41-1928 (Repl. 1964). In upholding the venue in that case we pointed out that the effects of the acts of the parties outside of Howard County was to dispose of the mortgaged property in Howard County. In other words there would have been no offense committed had the acts of the accused not resulted in the transfer of the mortgaged property in Howard County. Under the crimes here charged against petitioner the offenses were committed at the time of the occurrences alleged to have taken place in Clark County and were complete at that time.
Furthermore, as can be seen from the language of Ark. Stat. Ann. § 43-1426 (Repl. 1964), the presumption of venue only applies where the record does not affirmatively appear otherwise. In this case the informa-tions affirmatively allege that the events giving rise to the offenses occurred in Clark County instead of Miller Coun ty. If the State had wanted to contend otherwise, it should have either amended the informations to allege that offenses were committed in Miller County or filed a bill of particulars, as was suggested in Meador v. State, 201 Ark. 1083, 148 S.W. 2d 653 (1941), to show that it was alleging an offense in Miller County and not in Clark County.
Finally, Respondent contends that the bribery information alleges a payment of a bribe in Miller County. We do not so read the information. As we read the information it charges that whatever petitioner did occurred in Clark County. Had it been the State’s intent to charge petitioner with the payment of a bribe in Miller County, it would have been simple to have so stated without any mention of an allegation that he did pay a bribe in Clark County. — Of course nothing herein said will prevent the State from so proceeding against petitioner in Miller County upon a proper allegation.
Having shown that the informations filed against petitioner charged offenses that were allegedly committed only in Clark County, it follows that the Miller County Circuit Court was without jurisdiction.
Petitioner here for the first time challenges the sufficiency ol the false pretense charge, because it does not allege that any payment was made by any person to any other person, but we do not reach the question. The record does not show that the sufficiency of the charge was presented to the trial court.
Writ granted. | [
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Richard B. Adkisson, Chief Justice.
Appellant, Lamar School District, voted to nonrenew the teaching contracts of two nonprobationary teacher-coaches, appellees Michael Glen Kinder and Jimmy Wright. On appeal to the Johnson County Circuit Court, Kinder was reinstated to his former position with back pay and Wright was awarded $900. The circuit court found the School District “failed to comply with Arkansas law” in nonrenewing appellees’ contracts. We reverse the trial court and affirm the decision of the School District.
Appellees were hired in 1976 as high school football coaches and teachers for the Lamar School District. Although they satisfactorily performed their teaching duties, the school board found them deficient in their performance as coaches. During the five years they coached, the team won 15 games and lost 28: won 4 and lost 14 in their own class AA; won 11 and lost 14 against teams of lower classification.
Prior to the 1979 season the school board formally expressed their dissatisfaction with appellees’ coaching performance at a school board meeting and requested that the principal notify appellees that they had one year to “round out the program.” The principal conveyed the message to appellee Kinder and talked to him about the problem involved. The 1979 season was inconclusive — the team won 4 and lost 4. However, the 1980 season produced a record of 3 wins and 7 losses. Therefore, in February of 1981 appellees were notified by letter that the board was considering nonrenewal. Appellees recieved another letter on March 3 setting out the various reasons why the school board was dissatisfied with their performance. Then, on April 6, at the request of appellees, a public hearing was held on the proposed termination. Two days later the school board voted to nonrenew.
Appellant argues, and we agree, that the school board substantially complied with the procedural safeguards set out by The Teacher Fair Dismissal Act of 1979, Ark. Stat. Ann. §§ 80-1264 — 80-1264.10 (Repl. 1980), and its own personnel policies in nonrenewing appellees’ contracts. The record reflects that the appellees were notified as early as 1979 that the school board was not satisfied with their performance. The fact that the school board was tolerant and did not terminate appellees at that time did not preclude it from nonrenewing at a later date if the coaches’ performance was still unsatisfactory. See School District v. Maury, 53 Ark. 471, 14S.W. 669 (1890). Here, when it became evident in 1981 that there was no consistent improvement in the program, appellees were notified that the board was considering nonrenewal and were given a list of reasons for this action. Appellees were also given a public hearing at which time they and their representatives were allowed to present their arguments against nonrenewal to the school board. Under these circumstances the trial court erred in finding that the school board failed to comply procedurally with Arkansas law. The School District did in fact substantially comply with procedural safeguards in nonrenewing appellees’ contracts.
Appellant also argues that the school board complied with the substantive provisions of The Teacher Fair Dismissal Act as set out in Ark. Stat. Ann. § 80-1264.9 (b) which provides: “Any certified teacher who has been employed continuously by the school district [for] three (3) or more years may be terminated or the board may refuse to renew the contract of such teacher for any cause which is not arbitrary, capricious, or discriminatory,____” An action is “arbitrary” and “capricious” only if it is not supportable on any rational basis. Partlow v. Ark. State Police Commission, 271 Ark. 351, 609 S.W.2d 23 (1980). Here, there were several causes for appellees’ nonrenewal, none of which were arbitrary, capricious, or discriminatory. These causes, as set out in the March 3 letter to appellees, included inability to field a competitive team, inability to recruit more team members, inability to teach fundamentals of blocking and tackling, inability to create good team morale, inability to teach recognition of and reaction to various offensive and defensive football schemes, and losing games by very lopsided scores. In light of these causes, we cannot say that appellees were terminated contrary to law.
Reversed and dismissed.
Hickman, J., concurs.
Dudley and Hays, JJ., dissent. | [
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Tom Glaze, Justice.
The appellees initiated this litigation by filing in the Pulaski County Municipal Court a tort claim for trespass against the appellant, asserting the appellant’s connecting pipeline to Little Rock’s sewer system was wrongfully constructed on the appellees’ property. The appellees claimed $1,309.00 in damages to have the pipeline fixed and removed after they discovered and damaged the pipeline when excavating their property. Appellant denied these allegations, claimed the appellees had filed a frivolous lawsuit and prayed for damages for having to defend against the suit. The municipal court granted judgment to appellees. Appellant then appealed to the circuit court, and in that appeal, appellees moved to dismiss (nonsuit) their own claim and to dismiss appellant’s counterclaim, which appellees suggested, “appears to be for malicious prosecution.” Appellant responded by claiming he had an absolute right to a trial de novo on his counterclaim. Pursuant to ARCP Rule 11, appellant also moved for sanctions against appellees.
The circuit court granted appellees’ motion to dismiss both the appellees’ complaint and the appellant’s counterclaim, and it further denied appellant’s motion for sanctions. The court later denied appellant’s motion for reconsideration and entered its order dismissing with prejudice both the appellees’ complaint and appellant’s counterclaim.
On appeal, the appellant raises several issues which include his asserted right to a de novo trial in circuit court and the circuit court’s improperly dismissing with prejudice both parties’ actions and denying the appellant’s request for ARCP Rule 11 sanctions against appellees. A paramount issue, however, is whether the municipal court had subject matter jurisdiction to decide appellees’ cause of action in the first place. Although this argument was not raised below, it is well settled that this court may consider subject matter jurisdiction for the first time on appeal. See Venhaus v. Hale, 281 Ark. 390, 663 S.W.2d 930 (1984).
In reviewing the record, we find the appellees’ trespass claim was based on assertions that the appellant wrongfully constructed a sewer line on the appellees’ property. Appellees sought damages from appellant because they were required to remove and repair the sewer line after appellant refused to do so. Clearly, appellees’ claim was a trespass on land action, which is not cognizable in municipal court. In this connection, municipal court jurisdiction is set forth in amendment 64 to the Arkansas Constitution and Ark. Code Ann. §§ 16-17-206(a) and 16-17-704 (1987) which provide as follows:
Amendment 64:
[Municipal courts shall have jurisdiction concurrent with circuit courts (a) in matters of contract where the amount in controversy does not exceed three thousand dollars ($3,000) excluding interest, (b) in suits for the recovery of personal property where the value of the property does not exceed three thousand dollars ($3,000), and (c) in all matters of damage to personal property where the amount in controversy does not exceed three thousand dollars ($3,000) ____
§ 16-17-206(a):
(a) Municipal courts and justices of the peace shall not have jurisdiction in civil cases where a lien on land or title or possession thereto is involved.
§ 16-17-704:
(a) The municipal court shall have original jurisdiction, coextensive with the county wherein the court is situated, over the following matters:
(1) Exclusive of justices of the peace and of the circuit court, over violations of all ordinances passed by the city council of the city or quorum court of the county wherein the municipal court is situated;
(2) Exclusive of justices of the peace in townships subject to this subchapter and concurrent with the circuit court, over misdemeanors committed with the county and the issuance of search warrants within the county;
(3) Concurrent with justices of the peace, and exclusive of the circuit court, in all matters of contract where the amount in controversy does not exceed the sum of one hundred dollars ($100), excluding interest;
(4) Concurrent with the circuit court in matters of contract where the amount in controversy does not exceed the sum of three thousand dollars ($3,000), excluding interest;
(5) Concurrent with the circuit court in actions for the recovery of personal property where the value of the property does not exceed the sum of three thousand dollars ($3,000);
(6) Concurrent with the circuit court in matters of damage to personal property where the amount in controversy does not exceed the sum of three thousand dollars ($3,000), excluding interest;
(7) Concurrent with the circuit court in matters of claims for personal injury or injury to persons where the amount in controversy does not exceed three thousand dollars ($3,000).
(b) Municipal courts shall have jurisdiction to sit as examining courts, and to commit, discharge, or recognize offenders to the court having jurisdiction of the trial, and to bind persons to keep the peace or behavior.
(c) The jurisdiction of the courts as provided in this subchapter shall be coextensive with the county. In counties having two (2) judicial districts, the jurisdiction shall be limited to the district in which the court is situated.
As can be discerned from the foregoing, Arkansas law, constitutional and statutory, provides municipal courts with no authority to hear and decide actions concerning damages to land. Accordingly, the municipal court lacked subject matter jurisdiction of appellees’ original action in the instant case, and because the municipal court had no jurisdiction of appellees’ cause, the circuit court acquired none on appeal. See Bynum v. Patty, 207 Ark. 1084, 184 S.W.2d 254 (1944). Thus, the circuit court should have reversed that part of the appellant’s appeal from the municipal court’s judgment with direction to dismiss appellees’ original trespass on land action.
We are still confronted with appellant’s contention that he has an absolute right to a de novo trial in circuit court on his counterclaim for malicious prosecution and that the trial court erred in dismissing his claim with prejudice. The major problem with appellant’s argument is that neither the abstract of record nor the transcript reflects a counterclaim that alleges a cause of action for malicious prosecution against the appellees. In Farm Service Corp. v. Goshen Farms, 267 Ark. 324, 590 S.W.2d 861 (1979), the court enumerated the essential elements for the tort of malicious prosecution as follows:
(1) A proceeding instituted or continued by the defendant against the plaintiff.
(2) Termination of the proceeding in favor of the plaintiff.
(3) Absence of probable cause for the proceedings.
(4) Malice on the part of the defendant.
(5) Damages.
As noted above, the court in Goshen Farms held that the plaintiff must allege and prove the original proceedings terminated in his favor. Id. Here, appellant has simply failed to allege facts to state a cause of action for malicious prosecution, and for this reason alone, the trial court was correct in dismissing any such claim.
Appellant also complains that when the trial court dismissed the counterclaim, the court should not have done so with prejudice. From the record, we are unable to determine why appellant’s counterclaim was dismissed with prejudice, nor can we find where the appellant questioned the trial court’s authority to do so except that appellant did appeal from the order of dismissal. Because we have decided that the appellant failed to state a cause of action, the court’s dismissal should have been without prejudice. See Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984).
Appellant next argues the circuit court erred in refusing, to impose sanctions against appellees pursuant to ARCP Rule 11. That rule provides (1) that the signature of an attorney or party constitutes a certificate by him that he has. read the pleading, motion or other paper filed in the judicial proceeding, and (2) that, to the best of his knowledge, information and belief formed after reasonable inquiry, those documents are well-grounded in fact and are warranted by existing law or a good faith argument for the extension, modification or reversal of existing law. The rule further provides that the pleading, motion or. other paper is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. Rule 11 also provides for certain sanctions when the rule has been violated.
This court has had few opportunities to consider Rule 11. However, we believe the recent federal case of O’Connell v. Champion Intern. Corp., 812 F.2d 393 (8th Cir. 1987) is worthy of note in our consideration of the Rule 11 issue argued here. In O’Connell, the defendant, the moving party for Rule. 11 sanctions claimed the plaintiff had brought their actions knowing the statute of limitations would provide a good defense. While the district court agreed that the plaintiffs’ respective claims were barred by the statute of limitations, it refused to impose sanctions against the plaintiffs. In upholding the trial court’s ruling, the court of appeals said the following:
This determination that the plaintiffs’ , conduct was justified rests upon ... the District Court’s intimate familiarity with the case, parties, and counsel, a familiarity we cannot have. Such a determination deserves substantial deference from a reviewing court. Judged by this standard, the District Court’s decision to deny sanctions is not so far out of bounds as to justify our coming to a different conclusion at the appellate level. The imposition of sanctions is a serious matter and should be approached with circumspection.
In the present case, the circuit judge denied the appellant’s Rule 11 motion, and in doing so, mentioned that the appellees previously had prevailed on the merits of their trespass claim in municipal court. While ruling on the parties’ motions, the judge had the municipal court record before him as well as the motions, extensive briefs and arguments which were filed in circuit court. After a careful review of the record, we believe the circuit judge’s determination deserves substantial deference on our part, and conclude that his decision is not so clearly wrong as to justify reversal. We in no way mean to suggest that a trial court is deprived from imposing Rule 11 sanctions in an abbreviated proceeding where a party’s claim is dismissed for want of jurisdiction. Our holding merely reflects that, based on the record, the appellant failed to demonstrate the trial court erred in denying those sanctions.
In accordance with the above, we affirm the trial court’s decision to dismiss the appellant’s counterclaim but modify it to reflect the dismissal to be without prejudice; deny Rule 11 sanctions; and because the trial court did not have subject matter jurisdiction of appellees’ suit on appeal, we reverse and remand with directions that the trial court reverse and dismiss the appellees’ municipal court proceeding.
763 S.W.2d 656
The trial court apparently dismissed the appellant’s counterclaim for malicious prosecution because the appellees prevailed in municipal court. On appeal, appellees appear to rely on the trial court’s ruling, but also argue ARCP Rule 12(b)(6). Of course, we affirm the trial court where it is correct, but states the wrong reason for its ruling. Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984). The trial court’s decision to dismiss appellant’s countrclaim was clearly correct regardless of whether it announced an erroneous reason for doing so.
Appellant did specifically question the trial court’s authority to enter the order with prejudice in a pleading captioned, “Defendant’s Reply to Response to Defendant’s Motion to Supplement,” which was filed four months after the appellant filed his notice of appeal. There is nothing in the record that shows that issue was presented to the trial court. | [
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David Newbern, Justice.
This is an appeal from the issuance of a writ of mandamus. The appellee, Consolidated Health Management, Inc. (CHM), sought the writ requiring the appellant, Ray Scott, Director of Arkansas Department of Human Services (DHS), to review CHM’s application for a license to add beds to its nursing facility. The trial court was correct in ordering that the application be reviewed.
Prior to enactment of Act 593 of 1987, a “certificate of necessity,” issued by the State Health Planning and Development Agency, was required by law for submission with an application to the Office of Long Term Care Facilities Advisory Board (the board) for construction or enlargement of a nursing home. Act 593 abolished the requirement that there be a certificate of necessity for construction or enlargement costing less than $500,000 capital expenditure. The requirement was reinstated by Act 40 of the 1987 First Extraordinary Session of the Arkansas General Assembly, although the document required was renamed “permit of approval.”
The trial court found that after Act 593 became effective and before June 19, 1987, the effective date of Act 40, CHM representatives attempted to deliver a license application to the board, but they were not allowed to file it because it was unaccompanied by a permit of approval. The application, which was for a less-than-$500,000 expansion, thus has not been reviewed by the board, and CHM has no application on file with that office.
In the order to DHS, which is the parent agency of the board, the circuit court instructed that the application be reviewed “under applicable laws and regulations in effect at the time the application was originally submitted.” DHS has appealed the order on three grounds. First, it is contended that the court lacked jurisdiction because CHM had not pursued its administrative remedies. Second, the court erred in holding that the requirements of Act 40 were not to be applied. Third, it is argued that the decision is clearly against the preponderance of the evidence.
1. Jurisdiction
a. Discretion
In its brief, DHS contended that the decision whether to grant a license to permit expansion of a nursing home is one involving the exercise of discretion by a state office or official and, therefore, mandamus would be inappropriate. During oral argument it became clear that the court’s order did not direct the issuance of a license and that CHM was not contending that the order should be so construed.
b. Other remedy
DHS argues that mandamus is not available where another, in this case administrative, remedy is available. Department of Human Services v. M.D.M. Corp., 295 Ark. 549, 750 S.W.2d 57 (1988).
We dismiss this argument because, according to the facts found by the trial court, DHS, by rejecting the application out of hand, has denied CHM the very administrative remedy the agency contends is available. No review has occurred. There is no “decision” of record from which CHM could appeal.
2. Applicable law
In addition to reestablishing the requirement that a permit of approval accompany a nursing home license application such as the one submitted by CHM, Act 40 established a moratorium on all nursing home licensing for a period of up to two years. In Arkansas Dept. of Human Services v. Greene Acres Nursing Homes, Inc., 296 Ark. 475, 757 S.W.2d 563 (1988), we held that an application submitted prior to the effective date of Act 40 was subject to the moratorium. However, we also wrote: “Since appellee submitted its application during the effective dates of Act 593, it qualified for the exception to the permit of approval requirement.”
Generally, legislation operates prospectively. Abrego v. United Peoples Fed. Sav. & Loan Assn., 281 Ark. 308, 664 S.W.2d 858 (1984). Act 40 provided it was to be effective “from and after its passage and approval,” thus its effect is not retroactive. Lucas v. Hancock, 266 Ark. 142, 583 S.W.2d 491 (1979). In the Abrego case, we quoted from United States v. Security Industrial Bank, 459 U.S. 70 (1982), where the Supreme Court wrote that retrospective application of a statute will not occur unless it is “the unequivocal and inflexible import of the terms, and the manifest intention of the legislature.”
When, in Arkansas Dept. of Human Services v. Greene Acres Nursing Homes, Inc., supra, we wrote that the licensing moratorium applied with respect to an application submitted during the time Act 593 was in effect but that the permit of approval requirement did not, our ruling was consistent with the language quoted from United States v. Security Industrial Bank, supra. The legislative intent of Act 40 that there be a prospective moratorium on all licensing was clear. The reinstatement of the permit of approval requirement was also prospective, but it was not clearly intended to apply to applications which had been submitted while Act 593 was in effect.
It would be unfair to CHM to hold that the application it attempted to submit during the effective dates of Act 593 was subject to the permit of approval requirement while other applications accepted for review during that time were not.
3. The evidence
DHS points out that CHM presented, at the trial, neither a copy of the application it contends it attempted to submit nor a copy of the check allegedly tendered with the application. While inclusion of these items in evidence might have strengthened CHM’s case, we know of no authority holding that they were essential to it. The judge believed the testimony of the witnesses for CHM who testified the application was presented in the Office of Long Term Care Advisory Board and that they were informed that it could not be accepted absent a permit of approval. We cannot say this finding of fact was clearly erroneous. Ark. R. Civ. P. 52(a); Cude v. Cude, 286 Ark. 383, 691 S.W.2d 866 (1985); Johnson v. Truck Ins. Exch., 285 Ark. 470, 688 S.W.2d 728 (1985).
Affirmed.
Hays and Glaze, JJ., dissent. | [
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George Rose Smith, Justice.
The circuit judge, hearing the case without a jury, found the appellant guilty of aggravated robbery and, after considering a pre-sentence report disclosing a number of prior offenses, imposed a 35-year sentence. The only argument for reversal is that the prosecutrix’s identification testimony was tainted by the inclusion of four separate photographs of Wade among 200 or more photographs that the witness examined at police headquarters in picking out Wade as the man who robbed her. No error is shown.
There is no indication that either the prosecutrix or the police knew the identity of the criminal when she looked through the file of photographs. Thus there is no intimation that the inclusion of four pictures of Wade was deliberate. The prosecutrix testified that in the file there was sometimes one picture of a suspect, sometimes two, sometimes five. She was positive in her identification of Wade at the trial, saying that she had seen his face for probably four minutes on a bright sunny afternoon during the robbery, which was only a day or so before she went through the photographs.
In West v. State, 255 Ark. 668, 675, 501 S.W.2d 771 (1973), we upheld an identification although the twelve pictures shown to the prosecutrix included two each of the defendant and of three other suspects. Where, as in the case at bar, several pictures of the ultimate defendant are included among hundreds of pictures, without improper motive, it is reasonable to think that a combination of various pictures of the same person might materially assist the witness in the identification process, both in the selection and in the rejection of possibilities. Moreover, the trial judge expressed his conviction that the prosecuting witness had identified the defendant “to an absolute certainty.” His decision is not clearly erroneous.
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Robert H. Dudley,
Justice. Appellant registered and licensed his motor vehicle with the appellee Commissioner of Revenues. The license expired on December 31, 1990, and on March 15, 1991, two and one-half months after the license expired, appellant sought to renew it. He signed an affidavit that he had not operated his car during the period that the license was expired. The Commissioner waived the penalty for failing to timely renew the license, see Ark. Code Ann. § 27-14-1004(b) (1987), and renewed the license with an expiration date of December 31, 1991. See Ark. Code Ann. §§ 27-14-601 (b)(1) (1987), 27-14-1011(d) (Supp. 1991), 27-14-1013 (1987). Appellant objected to the expiration date being December 31 and contended that it should be changed to March 31. He subse quently filed suit in chancery court and alleged that the Commissioner’s interpretation of the applicable statutes constituted an illegal exaction, that he should be given a refund for the two and one-half month period, and, in addition, that he should be allowed to collect refunds on behalf of all other car owners similarly taxed. The chancellor ruled that the complaint failed to state a claim for illegal exaction and dismissed the complaint. The chancellor’s ruling was correct, and we affirm.
Appellant’s complaint does not allege that the statutes imposing the registration and licensing renewal fees are illegal. Rather, it alleges that the Commissioner’s interpretation of those statutes is in error. We have long held that such an allegation is not sufficient to state a claim for an illegal exaction. In Pledger v. Feather lite Precast Corp., 308 Ark. 124, 823 S.W.2d 852 (1992), we wrote:
[W]e have always held that if the taxes complained of are not themselves illegal, a suit for illegal exaction will not lie. Schuman v. Ouachita County, 218 Ark. 46, 134 S. W.2d 42 (1950). In Taber v. Pledger, 302 Ark. 484, 489, 791 S.W.2d 361, 364 (1990), we wrote that “a suit to declare a tax statute unconstitutional, and therefore void” comes within the illegal exaction provision, while a suit “to determine whether the taxpayer’s transactions fall within an exemption created by statute” does not come within the section. More important, and precisely on point in this case, we have held that a flaw in the assessment or collection procedure, no matter how serious from the taxpayer’s point of view, does not make the exaction itself illegal.
308 Ark. at 129, 823 S.W.2d at 856. We reaffirmed this holding only two weeks ago. See Cook v. Department of Fin. and Admin., No. 92-670 (April 5, 1993).
Appellant’s relief, if he is entitled to any, is under Ark. Code Ann. § 27-14-604(b), which provides: “Whenever the office through error collects any fee not required to be paid under this chapter, it shall be refunded to the person paying it upon application therefor made within six (6) months after the date of payment.” If appellant filed for a refund in a timely manner, and, if it were denied, he could then appeal to circuit court.
Affirmed. | [
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Robert H. Dudley, Justice.
This appeal is from an order setting aside a default judgment. The sole point designated on appeal involves the validity and interpretation of our long arm statute, Ark. Stat. Ann. § 27-2502 (Repl. 1979) and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jurisdiction is in this Court pursuant to Rule 29 (1) (c). The trial court is not shown to be in error. Therefore, we affirm.
Appellant, SD Leasing, through a dealer in Tennessee, leased a copier machine to appellee, RNF Corporation. All lease payments due pursuant to the non-cancellable agreement were to be made to appellant’s address in Little Rock. Appellee Robert Foster, the president and chief executive officer of RNF Corporation, guaranteed all lease payments. The appellant filed suit against appellees for the balance due under the terms of the lease when RNF Corporation ceased making the monthly lease payments. The appellees failed to answer and a default judgment was entered against them. The appellees then filed a motion to set aside the default judgment, alleging two separate grounds: (1) There was a lack of personal jurisdiction in Arkansas, and (2) they had not resisted the application for default judgment due to a misunderstanding between counsel. The order setting aside the default judgment provides that the matter was presented on “Affidavits of the parties, Briefs of the parties and argument of counsel ...” The order does not specify whether the default judgment was set aside because of (1) lack of jurisdiction or (2) misunderstanding between counsel, or both. Appellant has not brought up a transcript of the hearing so we do not know the pronouncement by the trial court at the hearing. The record before us consists only of briefs, pleadings and appellant’s (not appellees’) exhibits.
Appellant’s sole point for reversal is that the court in Arkansas had personal jurisdiction over appellees. See SD Leasing, Inc. v. Spain and Associates, 277 Ark. 178, 640 S.W.2d 451 (1982). However, there is no indication from the limited record before us that the decision of the trial court was based solely on the jurisdictional issue. The second ground, misunderstanding of counsel, may well have been a valid one. Our rule on this ground was articulately set out in Martin v. State, 241 Ark. 9, 405 S.W.2d 934(1966) as follows:
Where an attorney’s failure to resist an application for a default judgment is attributable not to any fault on his part but to a misunderstanding between counsel, there is such an unavoidable casualty that the judgment should be vacated, even after the expiration of the term.
See ARCP Rule 60 (c) (7).
We do not know whether the trial court relied upon the second ground to set aside the default judgment. The burden was upon the appellant to bring up a record sufficient to demonstrate that the trial court was in error. King v. Younts, 278 Ark. 91, 643 S.W.2d 542 (1982); A.R.A.P. 6 (b). The appellant has failed to meet its burden. Therefore, we have no choice but to affirm the trial court.
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Per Curiam.
Appellant, Dominique Guinn, by her attorney, has filed for a rule on the clerk. Her attorney, Vicki S. Cook, admits that the record was tendered late due to a mistake on her 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.
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Humphreys, J.
This suit was brought by appellees against appellant in the circuit court of Crawford County to recover damages in the sum of $742.42 on account of deterioration in the condition of a car of strawberries shipped from Bogers, Arkansas, to Kansas City and diverted to Minneapolis through the alleged negligence of appellant or its connecting' common carrier, in failing to promptly transport to its destination a carload of strawberries with due care or within a reasonable time after receiving instructions to divert the berries in question from Kansas City to the Yeager Produce Company, Minneapolis.
An answer was filed denying the material allegations of the complaint, and the cause proceeded to a trial upon the pleadings, testimony and instructions of the court, which resulted in a verdict and consequent judgment against appellant for $537, from which is this appeal.
It appears from the pleadings in the case that appellees founded or based their action upon the negligent delay of appellant in transporting the car of berries in question resulting in a deterioration thereof, and not upon the common law liability of appellant, the carrier, as an insurer. Notwithstanding the specific allegation of negligence, delay in transportation, upon which appel lees sought to recover, tlie trial court sent the case to the jury upon the theory that appellees might recover from appellant on its common law liability as an insurer. In doing this the court committed reversible error, for the rule is that where specific acts of negligence are alleged as a basis for the recovery of damages by a shipper against a carrier, he must rely thereon and make proof thereof ixi order to recover, and will not be permitted to recover under the general doctrine that a carrier must account for the deteriorated condition of commodities received by it in good condition. Kansas City Ry. Co. v. Morrison, 103 Ark. 522, 146 S. W. 853 ; K. C. So. Ry. Co. v. Mabry, 112 Ark. 110, 165 S. W. 279.
The trial court also committed reversible error in giving instruction No. 6 as to the measure of damages and in admitting evidence showing the wholesale market value of prime or first-class berries in Minneapolis on May 19th to the 21st, 1927, inclusive. The testimony reflects that appellees contracted such berries to their consignee for $4.10 per crate, and that on account of the deteriorated condition of same had been compelled to accept an average of $3 per crate. The measure of damages, if any, was the difference between the contract price aird the price received.
Appellants make the further contention for a reversal of the judgment axid the dismissal of the cause upon the ground that the undisputed testimony reflects that after receiving the diversion order the car of berries was transported in the first available train from Kansas City and with the best dispatch to Minneapolis, and that said ear was properly refrigerated and handled in transit to its destination. A majority of the court agree with appellant’s contention to the effect that the record, as it stands, does not reflect any negligence on the part of appellant in the transportation of the car of berries from Kansas City to Minneapolis, in which Chief Justice Hart, Justice Mehaffy and the writer do not concur, but are not willing to dismiss the ease after a reversal of the judgment, upon the ground that the evidence upon these points was fully developed. It appears that the diversion order was received by appellant at 5:30 p. m., May 17, 1927. Appellant’s connecting carrier, Chicago, Great Western Railway Company, had a train, number 60, suitable for the transportation of the berries, scheduled to leave, and which did leave, Kansas City for Minneapolis at 6:50 p. m. that would have arrived on schedule time at Minneapolis ait 12:35 p. m. on May 19, 1927. The berries were not forwarded on this train, but were forwarded in train number 90, scheduled to leave Kansas City at 8:35 p. m., but did not leave Kansas City until three hours later and which arrived in Minneapolis at 5:35 a. m. May 20th thereafter. The car of berries was in appellant’s yard in Kansas City at 5:35 p. m. when the diverting order was received and filed, about three-quarters of a mile from the yard of the connecting carrier’s yard, where it was necessary to move the car in order for it to be picked up' by train number 60. About an hour and a half intervened in which the car might have been moved from appellant’s yard to the other yard, but it was not affirmatively shown that facilities were at hand to transfer the car from one yard to the other or that appellant was negligent in failing to furnish facilities to do so. The law does not require railroads to keep engines at all times to move freight from one yard to another, only requiring that reasonable care and diligence be exercised in furnishing such facilities. St. Louis-San Francisco Ry. Co. v. Vaughan, 84 Ark. 311, 105 S. W. 573. The main contention of appellees in support of its judgment is that appellant was negligent in failing to transfer the car of berries from one yard to the other during the intervening hour and a half after receiving the diverting order and in time to place the car of berries in train Number 60 that left Kansas City for Minneapolis at 6:30 p. m. The majority do not think that the lapse of time alone constituted unreasonable delay, and that the burden rested upon appellees to go further and show that the car of berries could have been moved from one yard to the other with the facilities available,'or that should have been' available as an incident to prompt transportation. The minority are of the opinion that the time elapsing made a prima facie case of delay unless explained away by appellant.
On account of the errors indicated, the judgment will be reversed, and the cause remanded for a new trial. | [
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Steele Hays, Justice.
This dispute between insured and insurer over proceeds arising from personal injuries to the insured is certified to us by the Court of Appeals as containing both an issue of significant public interest and a legal principle of major importance. Our jurisdiction attaches under Rule 29.4(b) of the Rules of the Supreme Court and Court of Appeals.
On February 29,1990, Scott Higginbotham (appellant) was seriously injured in an automobile accident. Scott’s father, Glenn Higginbotham, was insured by Arkansas Blue Cross and Blue Shield (appellee) pursuant to an insurance contract (No. U96626) issued through the Arkansas Public School Employees. Scott, as son and a full-time student, was an insured under the contract. Blue Cross paid medical bills totalling $11,482.08. The liability carrier for the other motorist, State Farm Mutual Insurance Company, paid Scott Higgiijbotham its policy limits, $25,000, in return for which Scott executed a settlement releasing State Farm and its insured from all further liability.
Subsequently, Blue Cross made demand on Scott for reimbursement of the benefits paid by it, relying on the following subrogation clause in the insurance policy:
In the event any benefits or services of any kind are furnished to you or payment made or credit extended to or on behalf of any covered person for a physical condition or injury caused by a third party or for which a third party may be liable, the Plan shall be subrogated and shall succeed to such covered person’s rights of recovery against any such third party to the full extent of the value of any such benefits or services furnished or payments made or credits extended.
Higginbotham refused to honor the request, taking the position that Blue Cross was not entitled to subrogation until he had received sufficient sums of money to be “made whole.” This litigation ensued and both parties filed motions for summary judgment. Higginbotham’s motion included affidavits from trial lawyers assessing his injuries at over $50,000. Blue Cross stated in response that these affidavits created disputed fact questions, but argued the trial court could rule without using the affidavits, simply finding that the insurer should be granted immediate subrogation, irrespective of whether the insured had yet been made whole.
The trial court found that the $25,000 did not fully compensate Higginbotham for his injuries, but made no finding as to the total amount of the loss. The trial court held the right of subrogation provided in the insurance contract applies “regardless of whether the covered individual is fully compensated in his settlement with the tort-feasor’s insurance company.”
Higginbotham maintains that this question has not been previously addressed in this jurisdiction, but that other decisions are supportive of his position. Blue Cross takes issue with the assertion that no precedent exists in this jurisdiction, citing Storey v. Arkansas Blue Cross and Blue Shield, Inc., 17 Ark. App. 112, 704 S.W.2d 176 (1986), as “remarkably similar.” Both cases involve the child of a public school employee covered under an Arkansas Public School Employees policy. In both, a settlement was reached with the third party’s liability carrier without the approval of Blue Cross releasing the carrier and the tortfeasor from further liability. After having paid medical and hospital benefits to Storey, Blue Cross learned that Storey had settled her tort claim against a third party for $39,000. Blue Cross sued for reimbursement and obtained a judgment against Storey for $3,234, from which Storey appealed. Interpreting the identical policy provision involved in the case at bar, the Court of Appeals affirmed:
Appellant was entitled to the benefits paid by appellee pursuant to its contract with appellant’s mother, and upon payment of medical benefits on appellant’s behalf, appel lee was entitled under the contract provisions to recoup those payments. While appellant had the option to decline any benefits as a member under the contract, she simply chose not to do so.
The Court of Appeals also observed:
[W]e tend to agree with the appellant that the settlement amount had no relevance concerning appellee’s right to reimbursement under the insurance contract. . . .
We recognize that there is authoritative support for Higginbotham’s point of view. See e.g., Powell v. Blue Cross and Blue Shield, 581 So.2d 772 (Ala. 1990), a plurality opinion representing the view that subrogation is essentially an equitable remedy, and even where there are contract provisions between the insured and the insurer for subrogation rights, equitable principles prevail and require that the insured be made whole for the total loss before the insurer can recover from any funds received by the insured. In accord is Rimes v. State Farm Mutual Automobile Ins. Co., 106 Wis.2d 263, 316 N.W.2d 348 (1982).
On the other hand is Culver v. Insurance Co. of North America, 115 N.J. 451, 559 A.2d 400 (1989). Culver holds that subrogation principles do not override the right to contract. (See also the dissenting opinion in Powell v. Blue Cross and Blue Shield by Houston and Maddox, JJ., and the dissenting opinion in Rimes v. State Farm by Steinmentz, J.).
Although we attribute considerable merit to the opposing approach, we believe on balance the policy language must govern. The clause is clear; the words are unambiguous:
In the event any benefits or services of any kind are furnished to you or payment made or credit extended to or on behalf of any covered person for a physical condition or injury caused by a third party or for which a third party may be liable, the Plan shall be subrogated and shall succeed to such covered person’s rights of recovery against any such third party to the full extent of the value of any such benefits or services furnished or payments made or credits extended. [Our emphasis.]
We are not overlooking our own case, Shelter Mutual Insurance Company v. Bough, 310 Ark. 21, 834 S.W.2d 637 (1992), decided after these briefs were filed but discussed in oral argument. The decision contains this comment:
Although we have no criticism of the cases cited by Bough, the rule limiting the insurer’s rights to subrogation in those cases is not applicable to the facts here. The equitable nature of subrogation is granted an insurer to prevent the insured from receiving a double recovery. Thus, while the general rule is that an insurer is not entitled to subrogation unless the insured has been made whole for his loss, the insurer should not be precluded from employing its right of subrogation when the insured has been fully compensated and is in a position where the insured will recover twice for some of his or her damages. That is the situation here.
But the fact remains that we have not previously addressed the issue here presented, nor were we doing so in Bough. The primary holding of that case concerned whether Shelter had properly made underinsured motorist benefits available to its insureds, Nancy and Robert King, whose vehicle Bough was driving when the loss occurred. A secondary issue was whether Shelter was prejudiced by Bough’s full release of the third party tort-feasor and his carrier without notice to Shelter. Thus, the excerpt from Bough was dictum.
It may be those equitable principles on which Higginbotham relies are appropriate to the doctrine of subrogation by operation of law, a right broadly recognized in the law irrespective of whether there is a provision in the policy itself, but not where, as here, the right is one of conventional subrogation, that is, subrogation by express agreement between the insured and the insurer. See 44 Am. Jur. 2d Insurance at 783 (1982).
Without discounting the equitable properties of subrogation, we can conceive of no sound reason why broad principles of equity should be imbued with dominance over clear and specific provisions of a contract agreed to by the parties, at least where public policy considerations are wanting. Language from the decision of this court in Standard Life and Accident Insurance Co. v. Ward, 65 Ark. 295, 45 S.W. 1065 (1898) repeated in Maryland Casualty Co. v. Chew, 92 Ark. 276, 122 S.W. 642 (1909), is pertinent:
The insurance company had the right to fix the terms and conditions upon which it would insure appellee, and the latter had the right to accept or reject the insurance in these terms and conditions; but, having accepted the same, it was a contract between them, and, being in violation of no principle of law, nor in contravention of the policy of the law, must be enforced according to its terms and meaning; and the courts have the right neither to make contracts for parties, nor to vary their contracts to meet and fulfill some notion of abstract justice, and still less of moral obligation.
That was written a near century ago but is, nonetheless, the law.
Affirmed.
Holt, C.J., and Glaze and Corbin, JJ., dissent.
Brown, J., concurs. | [
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Kirby, J.,
(after stating the facts). Appellant insists that the chancery court was without jurisdiction and erred in dismissing its claim in the first suit for want of equity and in adjudging it not entitled to recover any more than the money advanced for payment -of taxes, the interest on the Federal Land Bank’s mortgage, etc. There was no presentation of any claim by the bank to the administrator for allowance within the time fixed by law for presentation of s-uch claims and the court did not err in so holding. Any renewal or attempted renewal by the administrator of the notes of the decedent to the bank secured 'by the mortgage made by him, or of the mortgages given by the administrator, under the order of the pro-bate court, to secure advances from the bank for supplies for tenants cultivating the lands of the estate, could not constitute a presentation of the cl-aim of the bank against the estate -of the decedent within the meaning of the requirements of the law, and the court did not err in holding the bank’s claim barred by the statute of nonclaim. Jordan v. Morrilton, 168 Ark. 117, 269 S. W. 53.
The p-robate court was without jurisdiction to make an order authorizing the mortgaging of the lands off the estate by the administrator for carrying on farming operations for three years. Doke v. Benton County Lumber Co., 114 Ark. 1, 169 S. W. 327 ; Massey v. Doke, 123 Ark. 211, 185 S. W. 271 ; Lewis v. Rutherford, 71 Ark. 282, 72 S. W. 373 ; Beakley v. Ford, 123 Ark. 383, 185 S. W. 796 ; Hart v. Wimberly, 173 Ark. 1083, 296 S. W. 39.
Appellant insists, however, that Mrs. Annie B. Teters was estopped from denying the validity of the mortgages made by the administrator to secure the advances for farming purposes, having agreed thereto in consideration that the bank would not proceed with the foreclosure of its mortgage against the estate. No estoppel was pleaded, however, and, if the conduct could amount to an estoppel, which we do not decide, it would in no wise dispense with the necessity for presentation of the bank’s claim to the administrator of the decedent’s estate, nor prevent the operation of the statute of non-claim. Gerard B. Lambert Co. v. Rogers, 161 Ark. 307, 255 S. W. 1089 ; Arkansas National Bank v. Boles, 97 Ark. 43, 133 S. W. 195 ; Hasty v. Hampton Stave Co., 80 Ark. 409, 97 S. W. 675.
The bank did not advance any money to the administrator to make the crop for the year 1928, and had no right whatever to or claim against the rents of the lands for that year, .and the court having correctly held all its claims against the decedent’s estate barred by the statute of nonclaim, except as to interest advanced and taxes paid, which had been returned to it, the bank had no interest in or claim to the rents for the year 1928, and no error was committed against the bank in the decree for recovery and distribution of said rent.
The appellant applied for permission to intervene in the equity suit and asked for affirmative relief and the appellees also prayed for equitable relie1!, cancellation of the mortgage, etc., and no objection was made to the jurisdiction of the court before the appeal wa.s prosecuted. The court therefore had jurisdiction, and it is too late now for the appellant to complain here that the court was without jurisdiction, even if there were grounds for such objection.
We find no error in the record, and the decree must be affirmed. It is so ordered. | [
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John I. Purtle, Justice.
This is an appeal from the denial by the trial court of appellant’s motion for a new trial. The appellant’s six arguments for reversal are: (1) the court erred in failing to allow testimony of the defendant’s net worth; (2) the court erred in granting the defendant’s motion for a directed verdict on the issue of punitive damages; (3) the court erred in denying the plaintiffs (appellant’s) motion for a directed verdict; (4) the court erred in failing to admonish the jury after improper remarks by the defense attorney in closing arguments; (5) the court erred on several instructions to the jury; and (6) the court erred in failing to grant a new trial. Finding no reversible error the decision of the trial court refusing to grant a new trial is affirmed.
This claim for personal injuries grew out of the collision between an automobile driven by the appellant and a front-end loader owned by the appellee and driven by one of its employees. The driver of the front-end loader was proceeding west on Zero Street in Fort Smith at a speed between 15 and 20 miles per hour, when he slowed to make a right turn onto South 24th Street. The appellant testified that at this point he had driven up to the intersection of South 24th and Zero Streets and stopped at the stop sign. The driver of the front-end loader stated he did not see the appellant’s vehicle until he had made his right turn and the bucket on the front-end loader was pushing the appellant’s automobile along the street. At the time of impact the appellant’s vehicle was on his side of the road and the bucket on the loader extended over into the appellant’s lane of travel.
The appellant developed many medical problems over a period of time, including problems with his cervical spine which eventually necessitated surgery. At the time of the occurrence he was in the course of his employment and, therefore, as a result of his injuries, he received medical and disability benefits under the workers’ compensation law. Shelter Mutual Insurance Company also paid disability benefits under a separate policy. Both the compensation carrier, Fidelity and Guaranty Company, Inc., and the disability carrier, Shelter Mutual Insurance Company, intervened when the appellant filed suit.
At the commencement of the trial, it was stipulated that Shelter had paid $4,170.00 in disability benefits under its policy and that Fidelity had paid temporary total disability benefits under the workers’ compensation act in the amount of $21,296.00; permanent disability benefits in the amount of $7,623.00; and medical benefits in the amount of $21,750.00. Appellee agreed to this stipulation as to the amount and the reasonableness of the bills, but did not stipulate that the bills were owed by the appellee.
The jury found for the appellant on the issue of liability and fixed his damages in the sum of $8,000.00. The appellants moved for a new trial on the basis of the inadequacy of the award in view of the stipulations. It is from the denial of that motion that the appellants bring this appeal.
The first argument by the appellant is that the court erred in refusing to allow evidence of the appellee’s net worth in view of the claim for punitive damages. (A proffer was permitted.) The second argument is that the trial court erred in directing a verdict for the appellee on the issue of punitive damages. As these two arguments are closely interrelated, they will be addressed together in this opinion. The appellant relies primarily on the case of Missouri Pacific Railroad Co. v. Arkansas Sheriff's Boys’ Ranch, 280 Ark. 53, 655 S.W.2d 389 (1983). The facts in the Missouri Pacific Railroad case reveal that officials of the railroad had decided that it was less expensive to settle the lawsuits than to clear the right-of-ways as required by law. In the present case it has not been demonstrated that the appellee or its driver were acting in violation of the law nor that the conduct was of such a nature as to give rise to punitive damages.
The appellant also relies on AMI 2217. This instruction requires as a basis for an award of.punitive damages that a defendant “knew or ought to have known, in light of the surrounding circumstances, that his conduct would naturally or probably result in injury and he continued such conduct in reckless disregard of the consequences from which malice may be inferred.” We discussed punitive damages in Freeman v. Anderson, 279 Ark. 282, 651 S.W.2d 450 (1983). There we stated:
In order to support an award of punitive damages, the evidence must indicate the defendant acted wantonly in causing the injury or with such a conscious indifference to the consequences that malice might be inferred. Negligence alone, however gross, is not a sufficient basis to justify the award of punitive damages.
The Freeman opinion went on to discuss “wilfullness, or conscious indifference to consequences from which malice may be inferred” as a basis for punitive damages. The opinion held that it must appear that the acting party either knew or had reason to believe that his action was about to inflict injury and that in spite of this knowledge he continued his course of conduct with a conscious indifference to the consequences. Only in such a case may malice be inferred and punitive damages awarded.
There simply is no proof in the record which would justify the introduction into evidence of the net worth of the appellant under the claim for punitive damages. There is no evidence of wilful and wanton conduct from which malice may be inferred. It is clear that the court was correct in directing the verdict against the appellant on the issue of punitive damages.
The third argument is that the court erred in failing to direct a verdict for the plaintiff at the close of all the evidence. The motion for the directed verdict and the argument on this appeal are premised upon the contention that the appellant was without fault in this occurrence. Therefore, if there was no fault on the part of the appellant, there was nothing to compare with the fault of the appellee. We considered this issue in the case of Thigpen v. Polite, 289 Ark. 514, 712 S.W.2d 910 (1986), where the defendant had admitted fault for the accident. The jury returned a verdict for the plaintiff but awarded zero damages. In the motion for a new trial the appellant argued that since the defendant admitted fault the jury verdict must be set aside because of the absence of any award of damages. Thigpen held that an admission of fault by the defendant does not automatically entitle the plaintiff to recover damages. Damages must be proven even though fault is admitted.
In the present case the testimony of Tommy Phillips, the driver of the front-end loader, was that the appellant’s vehicle was “nowhere in sight” when he began making the turn from Zero Street onto 24th. There is an implication from this testimony that the appellant’s vehicle might have driven up to the intersection after the loader had started its turn. Although the appellant and an independent witness testified that his vehicle was stopped prior to the loader starting its turn, such testimony is not binding upon the jury.
In denying a motion for a directed verdict we give the proof against the motion its strongest probative force. The proof and all reasonable inferences must be examined in the light most favorable to the party against whom the motion is sought, and if there is substantial evidence to support the decision of the trial court, we will affirm. The testimony of the driver of the loader was contradicted by the testimony of the appellant and another witness. However, we cannot say that the testimony of the employee of the appellee is not substantial. A directed verdict in favor of the party having the burden of proof is improper because the jury need not necessarily believe his evidence.
Two cases cited by the appellee are quite similar to the present case: Gilbert v. Diversified Graphics, 286 Ark. 261, 691 S.W.2d 162 (1985); and Taylor v. Boswell, 272 Ark. 354, 614 S.W.2d 505 (1981). Gilbert’s vehicle was struck from behind by a vehicle owned by Diversified Graphics. In her personal injury and property damage claim in the amount of $300,000.00, the appellant offered proof that she had incurred $12,895.81 in actual damage. The jury returned a verdict in her favor for $6,700.00. The trial court overruled her motion for a new trial based on the assertion that the verdict was too small and was contrary to the preponderance of the evidence. We upheld the trial court’s refusal to grant a new trial and stated: “A fair-minded jury could easily have found that all of Gilbert’s medical costs, disabilities and property damage were not attributable to the accident with the Diversified Graphics vehicle.” In the Taylor case the appellant argued that the jury verdict in the amount of $633.10 was less than her medical bills and therefore she was entitled to a new trial. We upheld the trial court’s refusal to grant a new trial on the basis that all of the bills may not have been attributable to the accident.
Another case quite similar to the present one is that of Freeman v. Anderson, supra. In Freeman the plaintiff received a verdict for $500.00, in a case of the defendant’s clear liability for the property damage caused by the accident. It had been stipulated that plaintiff’s medical bills were $490.00 and that estimates on the damage to plaintiff’s automobile went as high as $731.23. However, the defendant denied that the medical bills were proximately caused by the accident. We upheld the trial court’s denial of a motion for a new trial based on the inadequacy of the award.
In Thigpen v. Polite, supra, we stated: “The trial judge’s refusal to grant a new trial, with the implication that he found the verdict was not clearly against the perponderance of the evidence, was not a clear and manifest abuse of discretion, as we would have to find to justify a reversal.” There was testimony by medical specialists that part of the appellant’s treatment resulted from problems unrelated to the injuries he received in the accident in question. The stipulation agreed to by the appellee was that the medical bills and the other benefits had been paid and that they were reasonable. There was no stipulation that the appellee owed the bills. Therefore, it was up to the appellant to prove the bills were related to the traffic accident. Given the proof presented, a reasonable-minded jury could have concluded that all of the medical bills and disability benefits were not attributable to the accident.
The fourth argument by the appellant concerns a statement by defense counsel in closing argument that “the plaintiff has not submitted to you one medical bill.” We first note the agreement entered into at the beginning of the trial where the defendant stipulated that the intervenors had paid the medical bills and disability benefits. This same argument was made in very similar circumstances in the case of Missouri Pacific Railroad Company v. Hood, 198 Ark. 792, 131 S.W.2d 615 (1939). In that case the court held that it was the duty of the trial court to admonish the jury not to consider improper remarks made by one of the attorneys. We agree that remarks based on matters outside the evidence are not proper and should not be allowed. Upon objection, the objection should be sustained, and upon request the jury should be admonished not to consider the improper remarks by counsel.
After the defense attorney made the improper statement that “the plaintiff had not submitted one medical bill,” the trial court sustained an objection by the appellant. The court at that time stated: “I remind the jury, like I did a while ago, statements by either attorney are not evidence. If anybody makes a statement that is in contradiction to your recollection of the testimony you will disregard it.” Although we are of the opinion that it would have been appropriate for the court to have admonished the jury to disregard this specific statement, we believe his admonition to the jury was sufficient to cure any prejudice resulting from the remark. However, we do not wish to encourage courts to refuse to admonish the jury to disregard such statements. It is the better practice to specifically admonish on such improper remarks.
The fifth argument asserts error by the court concerning several different jury instructions. Several of the objections under this point are to the court’s failure to give instructions proffered by the appellant, and others concern the instructions given.
The appellant objected to instructions on comparative negligence which were given by the court. This issue has already been addressed and we need only say that we think there is substantial evidence of the appellant’s negligence. The driver of the loader testified that the appellant’s car was nowhere near the intersection when he started the turn.
The plaintiff objected to the exclusion of paragraph (c) of AMI 901. This model instruction concerns the duty of a driver to drive at a speed no greater than prudent and reasonable under the circumstances. The testimony of the defendant’s driver was that he was not going more than 15 or 20 miles per hour. There is no substantial evidence of unreasonable speed under the circumstances.
The plaintiff also argues that the court erred in refusing to give part of a proffered instruction which reads as follows:
Any person who drives any vehicle in a manner as to indicate wanton disregard of the safety of others is guilty of reckless driving.
There is not evidence in the record to indicate the driver of the other vehicle acted wantonly in disregard for the safety of others. Therefore, it was not error for the court to refuse this instruction.
The appellant claims error by the court in refusing to give his proffered modified version of AMI 908 as follows:
No owner shall cause or knowingly permit to be driven or moved on any highway or street any vehicle which is in such unsafe condition as to endanger any person.
Again there simply is no evidence that the loader was in an unsafe condition. Consequently this argument fails also.
The appellant asserts error by the court in refusing his modified AMI 1107. This proffered instruction concerns the operation of a “dangerous instrumentality.” We find no evidence in the record that the loader was a “dangerous instrumentality.”
The appellant objected to the court’s refusal of this proffered instruction involving “probable increases in future earnings.” The jury was given the standard AMI instruction on loss of future earnings and earning capacity. The instruction given includes the essence of the one requested.
Our per curiam of April 19, 1965, adopting the Arkansas Model Jury Instructions (AMI) stated that the model instructions should be given unless the trial judge finds the instruction does not accurately state the law. If the trial judge so finds, his reasons for refusing the model instruction should be given. It is basic that any instruction must be supported by the evidence. From the record it appears that the AMI instructions were adequate or that there was no basis in the facts for giving the modified requested instructions.
The appellant’s sixth and final point for reversal is that the trial court erred in failing to grant a new trial. In the foregoing points we have fully discussed all of the issues under this argument. For the reasons stated above we find that the trial court did not abuse its discretion in refusing to grant a new trial.
Affirmed. | [
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Per Curiam.
Appellant, Bobby Ray Grissom, by his attorney, Ray Nickle, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to his miscalculation of the ninety-day limit for filing the record in this Court. See Ark. R. App. P. 5(a).
We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Ed. F. McFaddin, Justice.
Appellant, as plaintiff, filed this suit in Chancery Court to cancel a deed which she alleged was obtained from her by the fraud of her stepson, Ross Harrell, who is one of the appellees. The trial court' refused the relief sought; and this appeal seeks a reversal of the Chancery decree.
Jesse Harrell, the father of the appellee, Ross Harrell, married the appellant, Mrs. Inez Harrell (now Trout), in 1931; and they lived together until Jesse Harrell’s death in 1940. Ross Harrell (now 39 years old) lived in the home of his father and stepmother during their married life, and continued to live in the home of his stepmother for some time after the death of his father. Jesse Harrell, as one of the children of Ben Harrell (who died in 1926), owned an undivided interest in 140 acres in Union County known as the Beil Harrell Estate. Appellant, Mrs. Inez Harrell (now Trout), was entitled to dower in the Jesse Harrell interest; and also she purchased in her own right the interest oí some of the heirs in the Ben Harrell land. Also, Jesse Harrell, and his brother, Lige Harrell, owned 90 acres, as tenants in common; and appellant had a dower interest in this land. No part of the 230 acres was in cultivation. At'one time after the death of Jesse Harrell the timber was sold from some of the lands; and Lige Harrell and Ross Harrell gave the appellant what they said was her part of the proceeds of the timber money. In 1944 the appellant remarried and is now Mrs. Inez Harrell Trout, and lives in El Dorado, Arkansas, in which City occurred the negotiations and transactions hereinafter to be mentioned.
In October, 1948, Mr. Weadock (an oil scout) approached Lige Harrell, uncle of Ross Harrell, about an oil and gas lease on the 230 acres; and Lige Harrell informed Weadock that he would not take less than $25 an acre for a lease on liis- part of the lands. This price did not deter Weadock; and he obtained a list of the other parties interested in the Harrell lands, and on subsequent occasions revisited Lige-Harrell, who was the “moving spirit” in the leasing of the Harrell lands. Ross Harrell lived in Bixby, Oklahoma, and Lige Harrell contacted him by phone and letter.
Ross Harrell had been trying for several years to purchase all of the interest of Mrs. Trout in the 230 acres; and, motivated by the prospects of leasing the lands for oil and gas, as told him by his uncle, Ligé Harrell, Ross Harrell left his home in Bixby, Oklahoma, and arrived in El Dorado, Arkansas, on November 10, 1948. He visited with his relatives, and with Mrs. Trout; and on November 12, 1948, he persuaded Mrs. Trout.to sign a warranty deed to him for all of her interest in all of the 230 acres. He paid her $820 in cash and agreed that he and his wife would execute to Mrs. Trout a non-participating royalty deed, conveying to her 28/69ths of the royalty under 18 2/3 acres of the Harrell lands. Mrs. Trout’s deed to Noys Harrell was placed in escrow until Ross Harrell and wife should execute the royalty deed.
A few hours after Mrs. Trout had signed the warranty deed to Ross Harrell, he sold to Weadock an oil and gas lease on the purchased property for as much as he liad paid Mrs. Trout for the deed for her entire interest in. the lands. Before the royalty deed was actually signed and before Mrs. Trout’s deed was taken from escrow, she filed this suit to cancel and rescind her deed to Ross Harrell on the ground that it had been obtained from her by fraud. The evidence as to the fraud consists, inter alia, in the fact that Mrs. Trout inquired of Ross Harrell, before she executed the deed, as to whether there had been any offers to lease the land for oil and gas; and he told her there had been no such offers, when in fact he knew that there had been such offers and that he had come to El Dorado for such purpose.
The law is well settled that when parties are sui juris and deal at “arm’s length” and in no confidential relationship, the prospective purchaser is under no obligation to volunteer information to the vendor; but if in such a situation, the vendor makes inquiry of material matters and the purchaser undertakes to make answers, then such answers must be truthful, unequivocal and non-evasive. The rationale of the holdings is summarized in 23 Am. Jur. 860:
“Response to Inquiries. — A party of whom inquiry is made concerning the facts involved in a transaction must not, according to well-settled principles, conceal or fail to disclose any pertinent or material information in replying thereto, else he will be chargeable with fraud. The reason for the rule is simple and precise. Where one responds to an inquiry, it is his duty to impart correct information. Thus, one who responds to an inquiry is guilty of fraud if he denies all knowledge of a fact which he knows to exist, if he gives equivocal, evasive, or misleading answers calculated to convey a false impression, even though literally true as far as they go, or if he fails to disclose the whole truth. . .
In 56 A. L. R. 429 there is an Annotation entitled: “Duty of purchaser of real property to disclose to the vendor facts or prospects affecting the value of the property”; and on page 434 thereof the effect of the cases is stated in this language:
“So, while recognizing that the prospective purchaser would not ordinarily owe the vendor the positive duty to inform the latter as to facts or conditions affecting the value of the land-, in the absence of exceptional circumstances, the courts have widely held that there are other circumstances not involving a fiduciary relationship, under which the vendor may have the right to rely upon the prospective purchaser telling the entire truth with respect to facts and conditions bearing upon such value; . . . Under such circumstances it becomes the purchaser’s duty to speak the truth, if he undertakes to speak at all, and a concealment or suppression of the truth, where coupled with any actual misrepresentation or over-reaching, however slight, may be sufficient to entitle the vendor to have the deed set aside, the circumstances amounting to fraud or deceit. ’ ’
Among the scores of cases cited to sustain the summarized statements, there is our own case of Warren v. Martin, 168 Ark. 682, 272 S. W. 367. In that case the purchaser undertook to inform the vendor of the conditions regarding oil development and misrepresented such conditions. This Court, after reviewing all of the evidence, directed that the deed so received by the purchaser should be cancelled; and we said: “We are convinced by a preponderance of the evidence that appellant (vendor) was induced to execute the deed through misrepresentation on which she had a right to, and did, rely. ’ ’ Likewise, in Danielson v. Skidmore, 125 Ark. 572, 189 S. W. 57, the vendor made inquiry of the vendee concerning the condition of property about to be received as part purchase price; and the vendee made answers which were material and which he knew to be false. In awarding relief to the vendor, we said: “He had a right to rely upon the representations of Danielson as to the quality of tlie soil, and according to Ms testimony lie did rely upon them. ’ ’
The preponderance of the evidence clearly establishes that Eoss Harrell, in obtaining Mrs. Trout’s signature to the deed, violated the salutary rules just stated. 11 ere is his testimony:
“. . . My Uncle Lige told me over the phone that they were leasing land around Lisbon, and if I would come down I would have a chance to lease. That was two or three weeks prior to the time I came. I told him I would come down on the 10th or 12th (November) . . .”. Regarding his answers to Mrs. Trout’s inquiries on November 11th, he testified:
“Q. Was anything said about you having had an offer for the lease on the land? A. She wanted to know if I had had an offer for the lease on the land, and I said I had not, and then she asked if any member of the family had had an offer on the land, and I said not so far as I knew. Q. Had you had any? A. No. Q. Had any of the family, so far as you knew, had an offer? A. I didn’t know if they had.”
Thus Eoss Harrell admitted that he told Mrs. Trout absolutely .nothing about the Weadock negotiations, although he knew of them. He claims that she asked him about “offers to lease”; and that all of which he had actual knowledge were mere “chances to lease”. We hold that when he elected to answer her inquiries, then he should have told her of the Weadock negotiations of which he had knowledge and which had caused his trip to El Dorado at that time.
To say the least of it, his testimony and that of his witnesses shows that Ross Harrell was evasive, equivocal, and misleading, in the answers he gave to Mrs. Trout in response to her said inquiry. Both Ross Harrell and Lige Harrell, his uncle, testified that Lige Harrell was looking after all lease matters for Ross Harrell and the other Harrell heirs. Lige Harrell denied that Weadock ever made him a real “offer” until about an hour after Mrs. Trout had signed the deed. But at one place in the testimony Lige Harrell said of his letter to Ross Harrell:
“A. I wrote him and told him that some leases were being sold in that community. Q. You didn’t write him that Weadock was trying to buy his lease? A. 1 told him that toe had had offers.” (Italics our own.)
Furthermore, on November 10th, Weadock had his attorneys in Magnolia prepare the proposed deed from Mrs. Trout to Ross Harrell, and also the oil and gas leases for the Harrell heirs to execute. Weadock stayed in El Dorado and never contacted Mrs. Trout. About noon of November 11th, Lige Harrell told Weadock that Mrs. Trout had just agreed to sign the deed to Ross Harrell; and Weadock then handed the previously prepared deed to Lige Harrell who took it to the office at which Ross Harrell had advised Mrs. Trout to meet him. The deed was actually signed by Mrs. Trout at about 3:00 P. M. and at about 4:00 P. M. Ross Harrell, Lige Harrell, and some of the other Harrell heirs signed the lease to Weadock.
We would certainly be over credulous were we to believe that Ross Harrell came from Oklahoma to El Dorado and visited with his uncle and aunt during the night and day of November 10th and did not learn from them all about the Weadock-Harrell negotiations, and that Weadock had continued to seek the lease after Lige Harrell had quoted the price of $25 per acre. The preponderance of the evidence establishes that Ross Harrell did know of the Weadock offers when he gave his answers to Mrs. Trout. What happened, as shown by the entire record — of which we have mentioned only a small part — “speaks so loud” that we cannot believe the feeble explanations offered by Ross Harrell and his witnesses in their attempt to establish that the answers given to Mrs. Trout’s inquiries were truthful, unequivocal and non-evasive.
Appellees claim that Mrs. Trout did not in fact rely on the answers that Ross Harrell gave her. We are convinced, however, by the preponderance of the evidence that Mrs. Trout did rely on Boss Harrell’s answer. The mere relationship of stepmother and stepson does not, ipso facto, create a confidential relationship between the parties. See Smith v. Lamb, 87 Ark. 344, 112 S. W. 884. Likewise, the mere relationship of co-tenancy does not, ipso facto, create a confidential relationship in all the dealings between the parties, eyen though such a relationship may exist in some matters. See Clements v. Cates, 49 Ark. 242, 4 S. W. 776. We are not deciding the present case on any theory of confidential relationship. We are mentioning these matters to show that in the timber dealings between the parties Mrs. Trout did in fact rely on Ross Harrell; and that, likewise, in this deed matter she did rely on the answers made by Ross Harrell to her inquiry; and she is entitled to rescind the transaction because such answers lacked that truth, candor and non-evasiveness which are essential.
The decree is reversed and the cause is remanded, with directions to enter a decree in accordance with this opinion upon Mrs. Trout’s return of the $820 she received from Ross Harrell.
Griffin Smith, C. J., dissents.
Griffin Smith, C. J.
My conclusion is that Mrs. Trout did not rely upon representations made by Harrell; that she had personal knowledge of values, and that her contracts were not predicated upon information obtained from her stepson. Effect would be to affirm the Chancellor’s findings. The case was heard by one of the State’s most capable judges of equitable matters who invariably gives attention to every material issue. I do not think the testimony is sufficient to overturn his findings. | [
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