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Frank Holt, Justice.
A jury awarded $15,000 damages to appellant’s guest passenger for injuries sustained in an automobile accident and we affirmed. McCall v. Liberty, 248 Ark. 618, 453 S.W. 2d 24 (1970). Appellant, having liability insurance coverage of only $10,000, paid the $5,000 balance, plus interest and costs. He then brought the present action to recover from appellee, his insurance carrier, that excess of the coverage. Appellant asserted that appellee was negligent in refusing negotiations and settlement within the policy limits. On appeal we first consider the appellant’s contention that the court erred in directing a verdict against the appellant.
It is true that an insurer is liable to its insured for any excess judgment of the insured’s policy limits if the failure to settle the claim by the insurer is due to fraud, bad faith or negligence. Tri-State Ins. Co. v. Busby, 251 Ark. 568, 473 S.W. 2d 893 (1971). In the case at bar, only negligence is asserted and, of course, the burden to establish this issue was upon appellant. When we view the evidence, as we must do on appeal, most favorably to appellant against whom the verdict was directed, we are of the view the court correctly held there was no substantial evidence adduced to constitute a factual issue that the appellee was negligent in failing to settle the case within the policy limits.
The factual background surrounding the accident is sufficiently detailed in McCall v. Liberty, supra, for purposes of this opinion. At that trial for recovery of damages, the insured’s guest was represented by two attorneys. In the case at bar only one of those attorneys testified. He wrote a letter to appellee’s attorney preceding the trial stating that his client would settle the case “within the policy limits at this time.” The letter was made an exhibit to his testimony. He further testified that his only effort to settle “money-wise” on behalf of his client was to write this letter to appellee’s attorney to advise him he had the authority to “settle within the limits, whatever those limits might be.” In previous correspondence liability was acknowledged as a close question.
The appellant, the insured, testified that at one time, on mistaken information, he had told his insurer’s (appellee) attorney he would pay $2,500 out of his own pocket just “to get it over with.” The appellee’s attorney advised him not to do so as he felt there was no liability. Appellant was also individually represented by an attorney o£ his own choice in the original lawsuit. Appellant further testified although he was willing to pay his injured friend $2,500 out of his own pocket, he, as well as his own lawyer, agreed with appellee’s attorney there was no liability based upon the allegation of willful and wanton misconduct. His wife was of the same view. It does not appear that appellant’s personal attorney ever made a demand for settlement in the case. Appellant acknowledged that he was “willing to go to trial,” knowing he would have to pay a judgment in excess of $10,000, because “I really thought we would win it.”
In preparation of the trial, the appellee had the benefit of statements from the attending physician, as well as hospital and medical reports. Appellant was interrogated by appellee’s investigator and gave him his version of the accident. Furthermore, it was stipulated that a copy of the state police officer’s investigation was acquired by the appellee during its investigation. The appellant, the insured, himself expressed the view that he did not know of anything the appellee or his attorney “did wrong” in preparation of the defense to the case and was “well pleased” with the services of his personal attorney as well as appellee’s attorneys.
In summary, after investigation of the claim which was made by appellant’s guest against him, the appellee (insurer) was of the view that the appellant, its insured, was not guilty of willful and wanton misconduct which is required to make a host liable to his guest passenger. The injured party’s attorney, in a letter to appellee’s attorney, expressed, inter alia, that “the liability is the close question in this matter.” The appellant and his personal counsel appear to have agreed with appellee’s attorney that the asserted liability, based upon willful and wanton misconduct, was a very close question and a favorable jury verdict would result. In retrospect, appellant expressed no complaint about the preparation and defense of the case. In fact, appellant adduced no evidence from any witness that failure to evaluate and settle the lawsuit constituted negligence. Therefore, we hold, as previously indicated, appellant did not establish evidence legally sufficient to constitute a factual issue that appellee negligently failed to evaluate and settle the case.
Appellant relies upon Members Mutual Ins. Co. v. Blissett, 254 Ark. 211, 492 S.W. 2d 429 (1973). We do not consider this case applicable and it is distinguishable. Among the distinctions are that appellee’s (insurer) attorney, in the case at bar, never recommended that appel-lee pay any sum in setdement of the case. In Blissett the contrary occurred and, in fact, the insurer’s attorney recommended a larger settlement than was offered. There appears to be no conflict in the testimony as to how the accident occurred in the case at bar and there was in Blissett. There was only a formal demand here for settlement “within the policy limits,” whatever the limits might be, made by the injured party’s attorney and at the same time acknowledging it was a close case as to liability. Appellant’s personal attorney never made demand for settlement. In Blissett, a mistrial had occurred which clearly indicated the possibility of a recovery by the injured guest.
Appellant contends the court erred in excluding the proffered testimony of the state policeman who investigated the accident. The court sustained appellee’s objection to the officer’s estimated speed of the vehicle, based upon physical facts, at the time of the accident. It was agreed appellee had a copy of the officer’s report and the results of his investigation. It appears that the report was not offered in evidence by either party. Even if we should hold that his estimate of speed was admissible, we find it does not bolster appellant’s contention that appellee was negligent in handling the case in view of what we have previously said.
Affirmed. | [
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Hart, C. J.,
(after stating the facts). The sole issue raised by the appeal and decided by ns is whether or not the court erred in finding that there was no liability against the defendants upon the certificates of stock which had 'been issued to them and for which each of them had given his note.
Article 12, § 8, of our Constitution provides that no private corporation shall issue stocks or bonds, except for money or property actually received or labor done, and all fictitious increase of stock or indebtedness shall be void. In the construction of this clause of the Constitution in Bank of Dermott v. Measel, 172 Ark. 193, 287 S. W. 1017, it was held that a note given to a private corporation for the purchase of stock in it is void. To support the holding, the court quoted from Bank of Commerce v. Goolsby, 129 Ark. 416, 196 S. W. 803, the following:
“'"When notes are taken in exchange for stock, it is a palpable violation of the constitutional provision, because notes are merely evidences of indebtedness, and such a transaction shows upon its face that the stock has not been paid for. The design of the framers of the Constitution was that stock should not be issued and sold except for its value in money or property actually received, or labor done. A note is not property in the sense of the Constitution, because it only indicates that the stock has not, in fact, been paid for; and where the notes are worthless the stock has been exchanged for nothing. Notes are not money and not bankable paper, but mere choses in action and it in no sense meets the requirements of the above provision of the Constitution to accept a note in exchange for stock” (citing authorities).
The notes introduced in evidence in this case were contractual in their nature because they contained a clause that they were given for shares of stock of the Lepanto Gin Company. The notes were merely evidence of the indebtedness of the persons executing them; and if the notes were void as being given in violation of the constitutional provision above referred to, there was no indebtedness of the stockholders to the corporation, for the certificates of stock which had been issued to them were also void; and the court properly held that there was no liability upon the part of the defendants.
Having reached this conclusion, it is unnecessary to consider the other questions discussed by counsel in their respective briefs. Therefore the judgment will be affirmed. | [
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Carleton Harris, Chief Justice.
Appellant, South-land Mobile Home Corporation, operated, through O.E. Barham, a mobile home sales lot near Springdale. In January, 1970, appellee, Gloria Chyrchel, visited the Southland Mobile Home lot in Springdale and talked to Mrs. O. E. Barham, wife of Barham, relative to purchasing trailers. At the lot, appellee looked at two mobile homes, known as a “Detroiter”, and a “Nashua”, which she subsequently purchased, but she also expressed a desire to purchase a mobile home which had an end bedroom. According to appellee, Mrs. Barham said there was not one on the lot but she knew where one of this type was located, and they drove to the location and looked at it. Mrs. Chyrchel was pleased with the trailer (an LTD) shown her, and when it was agreed that a new gas range would be placed in it, she said she would purchase same. All three trailers were purchased by appellee, a down payment in a lump sum of $2,000 being made ($500.00 of which was a deposit on the LTD) and the balance being made by three different checks before the occurrence of the fire, hereinafter discussed. After the purchases had been made, the service crew, employed by Southland, made the installations. Though employed by Southland, they were hired by Barham and worked directly under him. The LTD trailer was placed in position, the sewer and gas were hooked up, and the pilot light on the range lighted, but the service crew was unable to complete installation because they were not knowledgeable on how to hook up the furnace, and they did not hook up the electricity. While they were engaged in their work, Mrs. Chyrchel told them that she smelled gas, suggested that there was possibly a leak, and asked them to check it. She was advised that they had already checked for leaks, but to satisfy her, would check again. This partial installation occurred on Tuesday, April 7. On Friday, the 10th, they connected the water heater but still did not complete the other connections. On this same day, Mrs. Chyrchel thought she could still smell gas but, noticing a piece of pipe on the living room floor, assumed that there was a residue. She opened the windows to “air” the trailer, returned Sunday morning because it appeared that there would be a rain, closed the windows, and left. Not long thereafter, there was a report that the LTD was on fire. There had been an explosion , and the trailer was damaged extensively and made uninhabitable as a result of the fire. When Mrs. Chyrchel was unsuccessful in getting her money refunded or obtaining a replacement for the LTD, she instituted suit against Southland and Barham, alleging negligence, and subsequently amending the complaint to allege breach of contract and breach of warranty. Southland defended on the basis that the trailer was sold to appellee by Mr. Barham, on his own, and that South-land had no interest in the trailer, and did not make the sale; further, that the title to the LTD, at the time of the fire, was in appellee, and it was not liable. On trial, the court held that there had been a breach of contract and a breach of warranty by Southland and Barham, jointly and severally, and rendered judgment in favor of appellee in the sum of $4,595, together with interest at the rate of 6% per annum. From this judgment, appellant brings this appeal.
For reversal, three points are relied upon, first that Southland did not own the LTD, and therefore could make no sale (and accordingly no warranty); second, that the sale was complete, and the risk of loss passed to the buyer at the time of the fire. Finally, it is asserted that the Barhams were not the agents of Southland at the time of the sale of the LTD, and the company is not bound by their actions. For convenience, these points will be discussed in reverse order.
The trial court pointed out some rather pertinent facts in rendering its opinion as follows:
“But now, as far as the cause of action on the breach of warranty or breach of contract, I think the case right now shows that a prima facie case on a cause ctf action on a breach of warranty in this sense, that the trailer was purchased by Mrs. Chyrchel from the Barham’s who were held out to be the agents in charge of the lot, or Mr. Barham was the agent in charge of the Southland Mobile Home Corporation lot at Springdale. *** It is also true that when the trailer was delivered, it was delivered by Southland Mobile Home truck, by Southland Mobile Home service personnel, and they proceeded to make the installation. I don’t think it’s seriously argued that when she went to see about buying the trailer, she went to the South-land Mobile Home office and she was taken by Mrs. Barham to the Southland Mobile Home lot where they kept their trailers and everything involved in this transaction is calculated to indicate that Mr. Bar-ham was the agent of the Southland Mobile Home Corporation and that he was doing those things which were normal and within the scope of his authority as such, and he at least had ostensible authority to sell the trailers to her on behalf of Southland Mobile Homes. Now as far as whether Southland Mobile Homes actually owned the trailer or not, I think the evidence shows they probably did not, but it also shows that at the time Mrs. Chyrchel bought the trailer that she was not told that it was owned by anybody other than Southland and that she was told that it was on a different lot and that Mr. Bar-ham would have to get it to her, and that is what he apparently did. Now I think she was entitled to consider that she was dealing with Mr. Barham as the agent of Southland Mobile Homes, because the whole transaction appeared to be that way, and on that basis I think up to this point Southland is in the position of a seller and as such is chargeable like any other seller with the matter of implied warranties of a sale and warranty of merchantability for the purpose indicated, and the testimony by Mrs. Chyrchel is she told Mr. Barham she wanted it for a home for her mother, and this is what it was to be used for.”
Bob Wallace, General Manager of Southland, admitted that Barham was an employee of the company, in charge of the Springdale lot, and was, of course, authorized to make sales. Wallace testified that Barham was the only salesman to whom the company paid any commissions, and that other salesmen were paid by Barham. In other words, commissions paid for sales made there were all sent to Barham who, if others had made a sale, paid them from the check sent him. Wallace said it was left up to Barham whether he wanted one salesman or fifty. The witness stated that Barham had no authority to purchase trailers.
Appellant depends in large measure upon the fact that, in paying for these trailers, appellee, in purchasing the Detroiter and Nashua, made the checks payable to Southland, but in purchasing the LTD, made the check payable to Barham. It is accordingly argued that she knew that Southland did not own the LTD. We do not think this fact deserves the significance attached to it by appellant, for Mrs. Chyrchel testified that she was told to make the check payable to Barham instead of Southland because this particular trailer was not on the Southland lot at the time it was purchased.
As pointed out by the trial court, the setting up of all trailers and installation of services were performed by Southland employees. The trailers were taken to Mrs. Chyrchel’s premises by appellant’s crew and appellee testified that the Southland name was on the towing vehicle. Though the trailers were shown to Mrs. Chyrchel by Mrs. Barham, there is no question but that Barham himself participated in the sale. He was “in and out” of the office while the papers were being prepared, and was thoroughly familiar with the transaction, including the fact that he told Mrs. Chyrchel to make out one of the checks to him.
Barham testified that all service personnel were employed by Southland, though he, as manager, hired them. According to the witness, he had the responsibility of hiring and firing for Southland, and these employees worked Under his direction. The delivery equipment was owned by Southland, and he said that it was this equipment that delivered the trailers that Mrs. Chyrchel had purchased. Barham testified that his wife worked for him in sales and was working as his assistant at the time. Other pertinent facts worthy of mention are that the contracts for the purchase of all three mobile homes were prepared at the same time by Mrs. Barham in the office of appellant, using forms furnished by appellant. As previously stated, the kitchen range in the LTD was to be replaced and Mr. Barham testified that the new range came from the inventory of appellant and was installed by its service personnel at his direction. There is no dispute in the evidence but that Mrs. Chyrchel was not told that the mobile home was owned by someone other than Southland. In General Motors Acceptance Corporation v. Salter, 172 Ark. 691, 290 S.W. 584, this court, quoting 2 C.J. 573, said:
“ ‘Apparent authority in an agent is such authority as the principal knowingly permits the agent to assume, or which he holds the agent out as possessing; such authority as he appears to have by reason of the actual authority which he has; such authority as a reasonably prudent man, using diligence and discretion, in view of the principal’s conduct, would naturally suppose the agent to possess.’ ”
We have also said that when the evidence as to the nature and extent of an agent’s authority is in conflict, it is a question of fact for the jury. See American Metal Window Company v. Watson, 238 Ark. 418, 382 S.W. 2d 576.
In Mark v. Maberry, 222 Ark. 357, 260 S.W. 2d 455, this court stated that while an agent’s declarations, standing alone, are not admissible to prove agency, nevertheless an agency can be established by circumstances, and any evidence tending to establish agency is admissible, including the testimony of the agent. We hold that there was substantial evidence to support the trial court’s finding, sitting as a jury, that Mr. Barham possessed apparent authority to sell the LTD as the agent of appellant company.
Nor do we agree that the sale was complete before the fire and the risk of the loss had passed to the buyer. Mrs. Chyrchel testified that the price included installation of facilities and that everything was to be ready for use of the trailer by her mother before acceptance. In fact, she said that her son had signed the acceptance agreement for the other two trailers, but that this particular trailer was never accepted nor was any check list ever presented to her for acceptance. Barham testified that, “We would try our best to get the trailer ready, yes,” and he explained that by “ready”, he meant water, lights, and gas connected so that the trailer could be lived in. Admittedly, this was not done, and the trailer was not ready for occupancy at the time it burned. Appellant relies on Ark. Stat. Ann. § 85-2-509 (3) (Add. 1961), which it contends placed the risk of loss on appellee once the trailer was delivered. It would appear that there is a quick answer to this contention. Sub-section (4) provides that the provisions of this section are subject to a contrary agreement of the parties and to the provisions of the article on effect of breach on risk of loss as stated in § 85-2-510. We have already pointed out that in addition to moving the trailer to the Chyrchel lot, there was an agreement to hook up the facilities and thus prepare the trailer for occupancy by Mrs. Chyrchel’s mother. This required more from appellant than mere placement of the trailer and can be construed as a contrary agreement which left the risk of loss on the seller/appellant until the installation was completed. Also, § 85-2-510 provides that where delivery of goods so fails to conform to the contract as to give the right of rejection, the risk of loss remains on the seller until cure or acceptance. This section was construed in the case of William F. Wilke, Inc. v. Cummins Diesel Engines, Inc., 252 Md. 611, 250 A. 2d 886, where a seller delivered a generator to the job site in a field, but did not perform required field tests called for under the agreement between the buyer and seller. Subsequently, the generator froze, and the question at issue was which party suffered the loss. The coúrt held that “In the absence of a delivery of conforming goods, the risk of damage remained with Cum-mins, notwithstanding the delivery of the generator to the job site, the receipt of payment from Wilke, and some eight months’ delay in start-up.” It also stated, “U.C.C. § 2-106 (2) provides that ‘Goods or conduct including any part of a performance are “conforming” or conform to the contract when they are in accordance with the obligations under the contract.’ Non-conformity cannot be viewed as a question of the quantity and quality of goods alone, but of the performance of the totality of the seller’s contractual undertaking. Campbell v. Pollack, 101 R.I. 223, 221 A. 2d 615 (1966).” The court then said:
"Under the facts of this case, we have no difficulty in holding that the delivery of the generator to the job site, while identifying the goods to the contract, did not amount to a delivery of goods or the performance of obligations conforming to the contract. It could not constitute such a delivery and performance until the generator had been installed, started up, and field tests completed to the satisfaction of the government. Until then, risk of loss remained with Cummins regardless of where title may have stood.”
Previous discussion has included Southland’s contention that it did not own the LTD and therefore could make no sale, this contention having been found to be without merit.
We are of the view that the evidence, heretofore set out, is of a substantial nature, and in American Metal Window Company v. Watson, supra, we commented that it is well settled law in this state that the finding of the trial court, as a trier of the facts, has the verity and binding effect of a jury verdict, and will be sustained if there is any substantial evidence to support it.
Affirmed.
This employment, according to Barham, was terminated in September, 1970. Bob Wallace, General Manager and Vice President of Southland, testified that Barham was employed until September, 1971, but this appears to be a mistake.
While Mr. Chyrchel is also an appellee, he does not appear actively in the case and appellees will be referred to throughout this opinion in the singular.
The Nashua, a used trailer, was purchased for the use of Mrs. Chyrchel, who lived in another state, but planned on moving to Carroll County to live with her husband, after retirement; the LTD was purchased for the use of her mother; and the Detroiter, a new trailer, was purchased on behalf of friends who were going to live in it.
According to Barham’s testimony, the fire apparently started around the gas stove.
This portion of the opinion was rendered in response to appellant’s motion for directed verdict, such motion being denied. Thereafter, only Wallace testified, and the court, after further brief comments, in accord with those quoted,- rendered judgment. | [
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Frank Holt, Justice.
Appellant was convicted by a jury of the delivery of marijuana in violation of Act 590 of 1971 as amended (Ark. Stat. Ann. § 82-2617 [Repl. I960]). A two year sentence was assessed in the Department of Corrections. Appellant contends for reversal of the judgment that the purchaser and other youths instrumental in the purchase of the marijuana from appellant are accomplices and, therefore, their testimony, must be corroborated.
Appellant is correct in asserting that “a conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense.” Ark. Stat. Ann. § 43-2116 (Repl. 1964), Moore v. State, 251 Ark. 436, 472 S.W. 2d 940 (1971).
In the case at bar, however, appellant’s contention for reversal was determined adversely in the recent case of Sweatt v. State, 251 Ark. 650, 473 S.W. 2d 913 (1971). There we refused to classify the purchaser in an LSD sale as an accomplice of the seller. We said:
It is uniformly held that one who buys narcotics, intoxicating liquor, or other contraband is not an accomplice in the sale of the article, for obviously he is not selling to himself. **** [t]o be an accomplice one ‘must stand in the same relation to the crime as the person charged therewith and must approach it from the same direction.’ A buyer and a seller certainly approach the transaction from opposite poles. *###
The reason for holding that the purchaser is not the accomplice of the seller is that the purchaser, if guilty of any crime, is guilty of a crime distinct from that for which the seller is being prosecuted.
In the instant case neither the purchaser of the marijuana nor the other witnesses delivered the controlled substance. Therefore, neither could be charged with that offense. Their participation would be a separate and distinct offense, if any. Consequently, the court correctly refused to give an instruction relating to the requirement that the testimony of an accomplice or accomplices must be corroborated. An instruction must be germane to the issue.
Affirmed.
Harris, C.J., not participating. | [
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George Rose Smith, J.
This case went off below on demurrer to the complaint. The plaintiff, a lawyer, alleged in his complaint that he had been employed by a Texas finance company to collect a balance of $226.12 from the defendant or to repossess the car on which this debt was owed. Upon being so employed the plaintiff called on the defendant and obtained a promise that the defendant would on the following day either pay the debt or surrender the car. In disregard of his promise the defendant made a direct settlement with the finance company, after which the latter offered to pay the plaintiff a nominal fee for his services. The complaint asserts that the defendant, by settling with the finance company, deprived the plaintiff of the lien he would otherwise have had on the car or on the proceeds of collection. Judgment is prayed for a reasonable fee, which is said to be half the debt that the plaintiff was employed to collect. The trial court sustained a demurrer to this complaint, and the appeal is from the ensuing order of dismissal.
We agree that no cause of action is stated. Our present statute provides that an attorney shall have a lien on his client’s cause of action from and after service upon the adverse party of written notice by registered mail, or, in the absence of such written notice, from and after the filing of suit. If the adverse party then compromises the claim without the attorney’s consent he is liable to the attorney for a reasonable fee. Ark. Stats. 1947, § 25-301.
Here the plaintiff admits that he neither gave written notice nor filed suit. Since, however, the statute is to be liberally construed, Slayton v. Russ, 205 Ark. 474, 169 S. W. 2d 571, 146 A. L. R. 64, the appellant insists that his action in visiting the appellee and demanding payment of the claim should be considered substantial compliance with the requirement of written notice by registered mail. But even a liberal interpretation must be consistent with the basic intent of the statute. To construe the law as the appellant suggests would simply dispense with the necessity of giving notice by registered mail. That notice is a necessary element in the legislative scheme. It gives the recipient unmistakable warning that the attorney is insisting upon his lien and that any subsequent compromise will involve liability for the attorney’s compensation. Not having given the appellee the warning required by the statute, the appellant must look to his own client for his fee.
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Frank Holt, Justice.
Appellant sought custody of his 12-year-old son which the court denied. The custody of the boy was continued with the appellee mother. On appeal appellant contends that the chancellor’s findings are not supported by the evidence. We think the appellant is correct. We review the evidence, as abstracted, since the appellee does not favor us with a brief.
We first observe that the controlling principle in child custody cases, which are always difficult, is focused solely upon the best interest of the child. In Stephenson v. Stephenson, 237 Ark. 724, 375 S.W. 2d 659 (1964), we held:
“In custody matters the unyielding consideration is the welfare of the children. It matters not to this court which of the parties ‘wins’ custody, so long as the children are the ultimate winners of good care and home.”
Appellant and appellee were divorced in 1963 at which time the appellee was given custody of their 2-year-old son, Carl, Jr. This was appellee’s second of five marriages. It appears the appellant and appellee continued to live in the same vicinity. The appellant had enjoyed visitation rights with his son and maintained support payments. For about three months before this litigation, the boy had lived with the appellant father with appellee’s consent. The appellee brought contempt proceedings against the appellant at the end of the three months alleging that he had refused to return their son to her. Appellant, by counterclaim, sought custody. The court found that the appellant was not in contempt and continued the custody of the child with the appel-lee. The appellant appealed from the denial of custody to him. About two weeks after this hearing, the appellant instituted another action seeking custody of his son alleging, inter alia, that the appellee mother had physically abused their son and the boy had fled to the shelter of appellant’s home, whereupon the appellant took his son to the police and left him in their care. The police> at the direction of the chancellor who had received two telephone calls from appellee seeking advice, returned the child for the time being to the father. Upon a hearing the court again continued the custody with the appellee. The two adverse decrees as to custody are consolidated on appeal.
In the first custody proceeding, as abstracted, the appellee testified that her son would not mind her although “he minded his father;” her son loves his father more than her; he wanted to live with his father; the father had bought him a mini bike, a Honda, and a sword; she was receiving $93 a month in Social Security payments from appellant for maintenance of the boy until appellant stopped payment to her after she let their son live with appellant for three months; because she had to leave for work at 6:30 a.m., she yielded to appellant’s request about three months before this litigation to let the boy stay with the appellant; and this permission was solely for the welfare of the child because the father, who was retired, could let him sleep longer, take him to and pick him up from school. She further testified that the father had kept his agreement with reference to child support; she had never heard the appellant encourage the boy not to mind her, although she could not make the child mind her and that he had no respect for her; and her son had reported to the police that she had “beat” him.
One neighbor testifying for the appellant, stated she had two children approximately the same age as appellant’s son and they played together; Carl, Jr., is high strung, high tempered and hard to approach; after he had spent more time with his father his attitude was better; and he played with other children without throwing fits. For the past several months this neighbor had observed a car parked in front of appellee’s house on numerous occasions and at times the car was there in the morning; Carl, Jr., said the man’s name was Bill; her little girl had made curious inquiry as to why this man was staying there so much; Carl, Jr., was having problems with his grades, although he attended school regularly; and appellee kept Carl, Jr., clean.
The appellant testified that he took his son on short trips with appellee’s knowledge; appellee had brought their son to live with him stating he could live there as long as he wanted to; appellee never asked him to return their son to her during the three months until the day he had the $93 Social Security check stopped being sent to her; he had understood they had a binding agreement that their son would live with him and he had refused to allow the child to return because of her living with Bill, her paramour. On legal advice, however, he permitted the boy to return to appellee with the understanding that she would “stick to her agreement” about not living with Bill; the night the boy was returned to appellee he went to the police because the appellee had whipped him and the police brought the boy to him; he loves his son very much and when his mother brought their son to him in March to live with him, their son was sick and disturbed; after a few hours he “calmed down;” appellee admitted to him Bill was staying with her and it was no one’s business except hers. The boy needed orthodontic care which would cost $1,500 or $2,000.
The appellant, again testifying, said that after the boy had lived with him for three months he gained weight but lost weight upon his return to his mother; a few days before this first hearing he had taken him to a doctor who had prescribed medicine for the boy’s nerves and another prescription for his stomach; the boy had made failing grades until he reached the sixth grade where he made nearly a “C” average because, he had had three months opportunity to work with him; the appellee admitted to him that it was making their son nervous when she lived with her' husband, Max Smith, to whom she was twice married and divorced, inasmuch as they were “having fusses and fights almost continuously.”
A playmate of Carl, Jr.’s, testified that a man named Bill lives with the appellee; Bill, sometimes stays with the appellee at night and that he had seen them “laying down in bed together,” once with their clothes on and another time “they were up under the cover.” He further testified that once when he spent the night with Carl, Jr., he awoke and saw Bill going to the bath room clothed only in his undershorts. He admitted that he and Carl, Jr., were good friends and had enjoyed shooting guns together. He said appellant had promised to give him a gun. However, he denied it was in relation to the trial.
Carl, Jr., testified that a Bill Andrews lived at their house; he had seen him in the bedroom with his mother and observed him leave her bedroom unclothed. When he complained to his mother about the presence of Bill, she told him it ,was not any of his business; he was afraid of Bill and had told his mother he wanted to live with his father. Carl, Jr., again testifying, stated that he was in the 6th grade; his father had been carrying him to school for the last two or three years when his mother had left him with his father as she went to work; he ate breakfast with his father and that his father picked him up after school and fed him; his father helps him with his school work and his mother never assists him; his father takes him to Sunday School and that his mother never does so; he had heard his mother cursing his father as well as a subsequent husband, one to whom she was married twice; she and this husband were constantly fussing and fighting; he had observed her drinking; and that he had never heard his father curse or observe him keeping or drinking intoxicants at his apartment. Carl, Jr., testified several times emphatically that he preferred to live with his father.
A juvenile court officer testified that she had observed Carl, Jr., on two occasions and noticed he had a “nervous mannerism consisting of twisting his hair.” This caused bald spots on the front of his head. The minister of a local church testified that the appellant was a member of his church, attended with reasonable regularity, and he had observed the appellant bring his son with him. The home of the appellant, who lived alone, was clean and well kept. There was other testimony that Bill was seen at appellee’s house where drinking occurred; that appellee had attended local night clubs with Bill as well as being unescorted and dancing with strangers.
Appellee’s son, by her first marriage, testified that his mother provides a nice home for Carl, Jr., loves him and takes good care of him. On cross-examination, he admitted that when he had lived in his mother’s home, with his mother’s knowledge, he was dating a married woman, who was pregnant by him, and further she had spent several nights there. She was later divorced and he married her. He further admitted that during the time appellant and his mother were married, appellant supported his mother as well as himself and his sister.
There was evidence by one witness, who was related by marriage to the appellee, that preceding the first hearing appellant had mentioned $500 to her after her husband said to appellant he was "broke.” However, she said no one heard appellant make that statement to her and “they had not been talking about this case.”
Appellee adduced evidence from her daughter (appellant’s stepdaughter) and another witness that appellee maintained an attractive home and environment, had good meals, and Carl, Jr., was well cared for. The appellee denied that she was living with any man; she considered herself a “good mother” and although she has attended various taverns, she does not drink to excess and always left her son in the care of his father because he is “in good hands;” she was married and divorced five times; she could not control her son and he told her he was going to live with his father because he loves him more than he does her; because he cried and wanted to live with his father she had permitted him to stay there three months “until you get yourself straightened up;” and her son would “lie.”
The court continued the custody of the child, as previously indicated, with the appellee mother. Approximately a week following this hearing the appellant, as indicated previously, renewed his petition for custody of the child. At a hearing upon that! petition the child testified that a few days after his custody was continued with his mother she became angry with him when he told her, in response to a question, that his love for his father was greater than for her and that he didn’t love her. She struck him and started pulling his hair. As she tried to find a belt he escaped and ran to his father’s house and his father took him to the police station; his mother came and took him to his father’s where he lived about a week and then had to go back to his mother’s; that presently, when his mother leaves at 6:30, she leaves him with his half sister who takes him to school at an early hour resulting in his having to wait at the schoolyard until the building opens.
The appellant testified that when the boy appeared at his home after the altercation with his mother his eyes were red and his hair messed up. He complained that his mother had mistreated him. Appellant took his son to the police station. The appellee later brought the boy from the police station to his house stating that the judge had advised her to do so. The chancellor verified that he had suggested this solution to the ap-pellee since she had called twice saying her son was “out of her control” and she wanted his advice. The appellee admitted that she slapped the boy because he would not mind her and that he left saying “I still hate you and I am going to live with my dad.” Again, Carl, Jr., testified and urgently reiterated that he wanted to live with his father and the three months he lived with him were the “happiest” time he had ever had in his life.
It is true that in custody proceedings the mother is ordinarily favored and this maternal inclination entertained by the courts is based on the child’s needs especially at an early age. However, we have said “[T]hat principle, however, loses some of its force as the child grows older and is not so strong in the case of a ten-year-old boy as it would have been much earlier in the child’s life.” Qualls v. Qualls, 250 Ark. 328, 465 S.W. 2d 110 (1971). As indicated in Stephenson v. Stephenson, supra, the courts are primarily concerned with the welfare of the child and if the father seems to be the better parent for the child’s best interests then the courts will vest custody in the father. Jackson v. Smith, 250 Ark. 923, 467 S.W. 2d 704 (1971), Campbell v. Richardson, 250 Ark. 1130, 468 S.W. 2d 248 (1971). The attitudes and wishes of the child, although not controlling, are proper for the consideration of the chancellor in making an award of custody. Campbell v. Richardson, supra. We have recently approved a change of custody of a 15 year-old-girl to her father where the girl expressed a strong desire to return and live with her father and three brothers. Ray v. Manatt, 250 Ark. 230, 465 S.W. 2d 111 (1971). In that case the change of custody was approved even though the mother was "... shown to have been a dedicated and devoted mother making every effort to meet her daughter’s special problem . . .” and she was a “. . . very wise, discerning and unselfish mother.”
Of course, chancery cases are tried de novo on appeal and the decree will not be disturbed unless it is against the preponderance of the evidence. We also give particular importance to the chancellor’s findings in these cases because of his position to observe the witnesses, their credibility, and the affection or lack of affection demonstrated by the competing parents or parties. Wilson v. Wilson, 228 Ark. 789, 310 S.W. 2d 500 (1955). However, if the preponderance of the evidence indicates that the chancellor did not award custody to the parent who could best provide for the future welfare of the child, we must reverse. Cox v. Tucker, 251 Ark. 714, 474 S.W. 2d 675 (1972). In the case at bar, we definitely are of the view that the future welfare and best interests of the child are with the father. The appellee, the mother, has been married and divorced five times — three times following the divorce from Carl, Jr.’s, father. Two of these marriages and divorces were to the same man and it appears undisputed that both of these marriages were characterized by constant cursing and fighting. Carl, Jr., failed in his grades although it appears from the testimony that he was socially promoted. According to Carl, Jr., only his father ever helped him with his studies and took him to Sunday School. It does not appear that his mother denied this. There was evidence that his mother permitted her paramour to live in her home and apparent illicit relations were observed by Carl, Jr., and a playmate. Appellee denied this and presented evidence she maintained a “spotless” house and properly cared for her son.
It could be that the father competed for the love and custody of his son by influencing him and his playmate as to their testimony. Also, that the parties’ 12-year-old son lied as his mother stated he would do. The mother admitted however, that she could no longer discipline the boy and he was “out of control.” A disinterested witness, a juvenile court officer, described him as a nervous child who twisted his hair to such an extent bald spots resulted. A doctor furnished a prescription for his nervousness and another for his stomach. Suffice it to say that Carl, Jr.’s, nervous conduct is a persuasive manifestation of the insecurity and instability generated by his unstable homelife. The emotional and physical impact of his experiences living with his mother, coupled with his unequivocal desire and demonstrated efforts to live with his father is sufficient together with the other circumstances, to clearly establish that the evidence preponderates in favor of the child’s custody being awarded to his father.
In Beene v. Beene, 64 Ark. 518, 43 S.W. 968 (1898), we said:
***The elder of the boys, now about nine years old, has probably arrived at that age when a father’s peculiar character of oversight and control may begin to be more necessary than the mother’s***.
That reasoning is particularly applicable in the case at bar.
Appellant next contends that the chancellor erred in ordering the defendant to pay attorney’s fees for appel-lee’s counsel, since there was no showing of need on her part or ability to pay by appellee. The award of attorney’s fees is within the sound discretion of the trial court in a child custody case even though an aftermath of a divorce. Hydrick v. Hydrick, 224 Ark. 712, 275 S.W. 2d 878 (1955). In the case at bar the chancellor heard the testimony concerning the wages earned by Mrs. Smith. Appellant misplaces the burden of proof here. The burden is on appellant to show that the chancellor abused his discretion. Appellant does not demonstrate he is unable to pay the fees nor that .appellee’s financial needs did not require the allowance.
The award of custody is reversed and remanded for proceedings not inconsistent with this opinion. The allowance of attorney’s fees is affirmed.
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Dunaway, J.
For the second time the question of appellee Pinkert’s title to the west % of lots 1 to 6 inclusive, block 8, Adams Addition to the City of Little Rock, Arkansas, is before this court. The first case was Pinkert v. Lamb, 215 Ark. 879, 224 S. W. 2d 15.
In the Lamb case, the litigation was between Ed Pinkert and Ella Stith, widow of J ames H. Stith. Pinkert claimed title through mesne conveyances from Sewer Improvement District No. 94 of Little Rock. The District had purchased the property at a commissioner’s sale held pursuant to a decree of the Pulaski Chancery Court rendered November 23, 1937, condemning said lots to be sold for delinquent assessments for the year 1934. Ella Stith claimed in a collateral attack on the foreclosure decree and sale thereunder that thev were void for various reasons.
We upheld the validity of the foreclosure sale of the property to the district in the former case and reversed the Chancellor’s decree to the contrary. One day before the mandate was issued by this court in that case, the instant suit was begun by appellants herein, Herbert Stith, James H. Stith, Jr., and Melanie Stith Tabor, the surviving children and heirs of James H. Stith, deceased, who died in 1942. All three appellants are nonresidents of the State of Arkansas and have been for many years.
The first action, later transferred to equity, had been begun as one in ejectment by Pinkert against John Lamb, alleged to be in possession of the property as tenant of James H. Stith. At the first trial it was stipulated that Ella Stith was the record title owner prior to the sale of the lots to the District and that she held possession through Lamb as tenant.
It now develops that Ella Stith had only a dower interest in the property and that appellants herein, owners of the fee as heirs-at-law of James H. Stith, had not been made parties to the first action. The stipulation had evidently been made by counsel under a misapprehension of the facts, in an effort to .expedite trial of the cause when it was shown that James H. Stith was deceased.
In the instant case, the Stith heirs sought cancellation of Pinkert’s deed and an accounting of the rents and profits from the property. They joined as defendants Pinkert and one Sehuman, alleged to be tax-title speculators, the receiver of District No. 94 and the Board of Commissioners of said District, certain parties who had collected rents from the property and Ella Stith, mother of one appellant and step-mother of the other two. Only Pinkert and Sehuman answered or appeared.
The complaint alleged all the same grounds of invalidity of the foreclosure and sale as were presented in Pinkert v. Lamb, supra, together with certain new matters. It was alleged that the foreclosure decree was void because James H. Smith, rather than James H. Stith, had been named as owner in the complaint filed against the property by the District; and because this same mistake was made in naming Smith as the owner in the warning order or published notice of pendency of the suit. In addition to these two defects, which were alleged and proved in the Lamb case, it was alleged and proved that in the notice of sale the property was described, but the name of the owner was omitted entirely. It was further alleged that the description in said notice of sale was so indefinite as to void the sale.
At the outset appellees contend that the judgment in Pinkert v. Lamb, supra, is res judicata of the present suit. Appellants, on the other hand, contend that since they were not parties nor privy to the prior suit, the doctrine of res judicata is inapplicable and they are not bound by the former judgment. We agree that res judicata is not in the case, but the law as declared in the opinion in the Lamb case is controlling in the case at bar under the rule of stare decisis.
In the Lamb case we held that Act 207 of 1937 (Ark. Stats. 1947, §§ 20-441 et seq.) governed the procedure to be followed in the foreclosure suit brought by the District. Then it was urged and now appellants argue that Act 207 is violative of the due process clause of the U. S. Constitution, in making the foreclosure proceeding an action m rem against the lands, in providing for constructive service and in providing that an incorrect allegation of ownership should be immaterial. In sustaining the constitutionality of the statute we fully discussed these questions in the Lamb case. We adhere to the views there expressed.
Appellants further argue that we erred in holding Act 207 applicable since the foreclosure suit was already pending at the time said act became effective March 8, 1937. Appellants argue that the statute should be construed to be applicable only to suits commenced after its enactment. The statute pertained only to the mode of procedure and did not create any new rights or take away any vested rights. “Practice and procedure include the mode of proceeding and the formal steps by which a legal right is enforced. Those words comprehend writs, summonses, and other methods of notice to parties as well as pleadings, rules of evidence and costs. Practice and procedure indicate the forms for enforcing rights as distinguished from the law which creates, defines and protects rights.” Duggan v. Ogden, 278 Mass. 432, 180 N. E. 301, 82 A. L. R. 765. As stated by this court in Foster v. Graves, 168 Ark. 1033, 275 S. W. 653 (at p. 1039): “The rule established by this court is that statutes in regard to remedies in procedure may be construed to apply to- all pending proceedings, and will be so applied unless the language of the statute indicates a contrary intention. ’ ’ There is no such language in Act 207. We adhere to our decision in the Lamb case in holding Act 207 of 1937 applicable to this foreclosure proceeding.
As discussed fully in the Lamb case, the misspelling of Stith as Smith in the complaint and warning order did not render void the foreclosure decree of the Chancery Court of November 23, 1937. Section 2 of Act 207 (Ark. Stats. 1947, § 20-441) which prescribed the procedure for enforcing collection of delinquent assessments by sale of the delinquent lands contains this provision: “Said proceedings and judgment shall be in the nature of proceedings in rem, and it shall be immaterial that the ownership of the said lands ... be incorrectly alleged in said proceedings, and such judgment shall be enforced wholly against such property, and not against any other property or estate of said defendant.” Validity of a similar statutory provision was sustained by this court in Ballard v. Hunter, 74 Ark. 174, 85 S. W. 252, affirmed by the Supreme Court of the United States in Ballard v. Hunter, 204 U. S. 241, 27 S. Ct. 261, 51 L. Ed. 461.
To hold that the obvious clerical error in misstating the name Stith rendered the decree void, would render the quoted statute meaningless. There is no contention made nor anything in the record in the instant case to indicate that there was such a person as James IT. Smith, or that Stith and his heirs were in any way misled by this mistake in the complaint and warning order.
We turn now to a consideration of appellants’ contention that failure to name the owner in the published notice of sale rendered the sale void. As already pointed out, the challenged proceeding was one in rem against the property. Section 4 of Act 207 (Ark. Stats. 1947, § 20-444) providing for publication of. notice of sale contained no requirement that the owner or supposed owner be named. Certainly, if an erroneous allegation of ownership is immaterial in the complaint and warning order omission of the owner’s name in the notice of sale would not be a fatal defect.
As to the notice of sale, appellants also argue that the following description used therein was indefinite and confusing: “The following described real estate to-wit: Lots 21, 22, Block 1, Lots 1 to 6, inclusive, 12, 13, 16, 17, Block 4, West 33 feet of East 66 feet of 1, 2, 3, 4, 5, 6, West one-half of 1, 2, 3, 4, 5, 6; 7 to 11 inclusive, Block 8, all in Adams Addition”.
It should be noted that the challenged description appeared in the notice of sale and not in the complaint, warning order, or decree of foreclosure. The description used in the earlier steps of the proceeding was as follows: “West % of Lots 1-6, inch. Block 8, Adams Addition”. Sufficiency of that description was upheld in the Lamb case. While a majority of the court is of the opinion that the description in the notice of sale was sufficient, appellants cannot prevail even assuming its insufficiency. Such a defect was cured by the decree of the Chancery Court confirming the sale.
This Court held in Stout v. Brown, 64 Ark. 96, 40 S. W. 701, that a sale of attached property under a writ of venditioni exponas, after it had been reported to and confirmed by the court, could not be collaterally attacked upon the ground that such writ did not specify the property to be sold, or that the officer sold without authority, or that he sold without giving the notice required by law. The Stout case was cited with approval in Lambie v. W. T. Rawleigh Co., 178 Ark. 1019, 14 S. W. 2d 245. In the later case of Cassady v. Norris, 118 Ark. 449, 177 S. W. 10, was also discussed in this language (at p. 1029): “The court further held that, after a confirmation of a sale has been made by order of tlxe court, all defects and irregularities in tbe conduct of tbe sale are cured, and every presumption will be indulged in favor of its fairness and regularity.” In Glasscock v. Glasscock, 98 Ark. 151, 135 S. W. 835, it was beld that confirmation of a judicial sale of lands cures sucb irregularities as a failure to advertise tbe lands. See, also, Files v. Harbison, 29 Ark. 307, upholding a judicial sale of lands against a collateral attack, where part of tbe lands bad been omitted from tbe notice of sale.
Appellants have also sought to bring themselves within tbe rule announced by this court in sucb cases as Word, Receiver, v. Grigsby, 206 Ark. 164, 174 S. W. 2d 439, and Schuman v. Person, 216 Ark. 732, 227 S. W. 2d 160. It is argued that James H. Stith sought to redeem tbe lots in question, but was prevented from doing so by the mistake or neglect of tbe official to whom be tried to pay tbe delinquent assessment. To establish this allegation in their complaint, appellants introduced in evidence two redemption certificates issued to tbe Homeowners Loan Corporation, which beld a mortgage on tbe property. One certificate was issued in 1934 covering-delinquencies for several previous years; tbe other was issued in 1938 for tbe delinquent 1937 assessment. No other proof was offered on this issue. Mere proof of two redemptions on other occasions certainly did not prove that as to tbe 1934 delinquency, James Stith attempted in good faith to pay bis taxes and was only prevented from doing so by official misprision.
Even though tbe foreclosure sale was valid, James H. Stith and bis heirs bad five years from tbe date of tbe sale on March 16, 1938, in which to redeem tbe property. Ark. Stats., 1947, §§ 20-446, 20-1144. The record does not disclose that they made any effort to do so.
We will not discuss at length appellants’ allegations that Pinkert’s title was acquired through fraud and collusion. Suffice it to say there is no proof whatever to sustain such allegations.
All other arguments of appellants have been com sidered and are deemed to be without merit.
The decree is affirmed.
As pointed out in the Lamb case, Act 207 of 1937 was subsequently amended by Act 130 of 1939 and Act 19B of 1949, which are inapplicable to the case at bar. | [
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Leflar, J.
This in effect is a bill in equity brought by plaintiff Butrum to have a deed declared to be a mortgage only, and to have the deed cancelled upon payment of the mortgage debt. The Chancellor found for Butrum, and decreed the relief prayed. Defendant Gray, grantee under the deed, appeals.
Butrum and one Lipscomb were brothers-in-law, and lived together on the land in question (20 acres with poor improvements) from about 1941 until Lipscomb died early in 1949. Previously the land had been conveyed and reconveyed several times, but by a deed executed in 1935 the title had been put in Lipscomb for life, with remainder in fee in Butrum. At the same time there was a mortgage on the land to secure a debt owed by Lipscomb to one Rose. Later, defendant Gray paid the amount of the debt to Rose and took an assignment of the debt and mortgage. Then on Nov. 12, 1938, Lipscomb and Gray executed a written contract whereby Lipscomb agreed that the land should be conveyed by absolute deed to Gray, but that Lipscomb should remain in possession and receive reconveyance on payment to Gray of the amount of the debt and interest, then $131. No deed was executed under this contract until Dec. 29, 1941, at which time the deed now in question, absolute in form, was signed by both Lipscomb and Butrum and delivered to Gray. Admittedly the outstanding debt was Lipscomb’s, not Butrum’s, and Butrum testifies that he thought the instrument he signed was a mortgage merely.
Gray testifies that he paid Lipscomb $200 in cash, in addition to cancellation of the debt, in return for the 1941 deed, but he offers no corroborative evidence as to this additional payment, and the deed itself recites a consideration of $158.50, which was then the amount of the debt with accumulated interest. After 1941 Lipscomb or Butrum sometimes paid the taxes and Gray sometimes paid them. Butrum continued to live on the land after Lipscomb died in 1949, but Gray made claim to possession, and this litigation ensued. The Chancellor’s decree found the amount of the debt with accumulated interest, plus the taxes paid by Gray, to be $276.04, and ordered the 1941 deed cancelled on payment of that amount by Butrum.
Appellant Gray contends that the evidence was insufficient to sustain the Chancellor’s conclusion that the deed was in reality a mortgage only. We have carefully reviewed the evidence, as summarized above, and find that it was sufficient. The evidence clearly justified the Chancellor’s finding that the 1941 deed was executed in compliance with the 1938 contract which clearly and definitely called for a deed to serve the functions of a mortgage. We have always held that it is permissible by extrinsic evidence of a clear, cogent and convincing character to show that a deed absolute on its fáce was actually intended to he a mortgage. Scott v. Henry, 13 Ark. 112; Clark-McWlliams Coal Co. v. Ward, 185 Ark. 237, 47 S. W. 2d 18; Newport v. Chandler, 206 Ark. 974, 178 S. W. 2d 240, 155 A. L. R. 1096. This appears to he such a case.
Appellant also asserts error in the Chancellor’s refusal to admit as evidence the record and testimony in an earlier case between the same parties, involving the same subject matter, in which a voluntary nonsuit had been taken by the plaintiff Butrum. The testimony given in the previous trial was allowed for the purpose of showing prior contradictory statements of witnesses at the trial of the present case but was not admitted in bulk, as appellant contends that it should have been.
In the earlier proceeding, appellant had filed a cross-complaint asking that title to the land be quieted in him. This cross-complaint was of course not dismissed when Butrum took his voluntary nonsuit. Ark. Stats., § 27-1407. Appellant contends that, as to his cross-complaint, it was consolidated for trial with Butrum’s new complaint, so that the present trial was as to it merely a continuation of the former trial and that evidence introduced at the former trial should have been admitted in the later one.
For one thing, the Chancellor declared that the two cases were not consolidated for trial, and this would seem to be decisive, despite an earlier remark, which he later said had been inadvertent, that they would be consolidated. Apart from that, the only evidence given at the first hearing was that offered by appellee on his complaint, none having been given on the cross-complaint at tlie time tlie nonsuit was taken. Furthermore, the transcript of previous testimony was offered in evidence without proper authentication. Finally, having examined the transcript in question, we find nothing in it that would in any event justify a different result from that reached.
The decree is affirmed. | [
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John A. Fogleman, Justice.
The marital difficulties of these parties were before this court in Lewis v. Lewis, 248 Ark. 621, 453 S.W. 2d 22. Appellant Gean Lewis was also appellant on that occasion, when we reversed a decree of divorce on the ground of indignities to the person granted on a counterclaim filed by appellee J. C. Lewis in appellant’s suit for separate maintenance. Our reversal was based upon the doctrine of recrimination because we found that the record showed the parties to be equally at fault. We remanded the case for further proceedings not inconsistent with the opinion rendered. It appears that the chancery court later awarded appellant temporary support and maintenance and attorney’s fees and the right to occupy the dwelling house in which the parties lived before separation.
In September, 1970, appellee filed another suit for divorce, alleging indignities to the person and adultery, stated as conclusions only. Appellant denied these allegations and counterclaimed for separate maintenance and support of a minor child. This case was dismissed on January 4, 1972, for want of prosecution. The present action was filed by appellee September 28, 1972. In this complaint, he alleged three years’ separation without cohabitation as grounds for divorce. Appellant admitted in her answer that the^ parties had lived apart but alleged that they had sexual relations since their separation, specifically in March, 1971, upon appellee’s promise to return to their home and conjugal relations, and that this action was recriminatory. The chancery court granted a divorce to appellee, denied alimony to appellant and denied her any property except for furnishings and appliances in the home occupied by her.
For reversal, appellant contends the court erred by granting a divorce on the uncorroborated testimony of appellee, by finding that appellant’s testimony about sexual relations between the parties was not corroborated and that this failure of proof justified appellee’s failure to produce corroborating evidence, by denying appellant homestead and dower rights and by denying her any support and maintenance by appellee.
Of course, corroborating testimony is as essential to the granting of a divorce on the ground of three years’ separation as it is in any other case. But, as in any other case, where it is plain that the divorce action is not collusive, the corroboration may be comparatively slight. Owen v. Owen, 208 Ark. 23, 184 S.W. 2d 808; Allen v. Allen, 211 Ark. 355, 200 S.W. 2d 324. The acrimony emanating from this record dispels any thought of collusion between these parties. Still, to constitute corroborating evidence there must be testimony relating some substantial fact or circumstance independent of the plaintiff’s testimony which would lead an impartial and reasonable mind to believe that material testimony of the plaintiff is true. Welch v. Welch, 254 Ark. 84, 491 S.W. 2d 598.
Appellant's major argument on this point is based upon the inability of appellee’s corroborating witnesses to account for every moment of his time, particularly in view of appellant’s positive testimony that the two met on numerous occasions and, on at least one of them, kept an all-night rendezvous for the agreed and accomplished purpose of copulation. If her testimony was accepted as true, of course there was not a three-year separation without cohabitation because this court has defined the word “cohabitation” in the divorce statutes to mean “sexual intercourse.” Ross v. Ross, 213 Ark. 742, 213 S.W. 2d 360. The chancellor seems to have rejected appellee’s version as incredible, because he stated in his findings upon which the decree was based that he did not believe, in view of the history developed in the course of the litigation before him, that appellee would defeat his cause of action for divorce by engaging in sexual intercourse with appellant on a single occasion. In arriving at this conclusion, as a fact finder, he drew the permissible inference that appellant’s failure to produce the witnesses (her niece and nephew) she had stated would corroborate her testimony in this regard was indicative of their inability to do so, particularly when appellant had been given time to produce the witnesses, after which her attorney expressed doubt that the testimony of some of them would have any probative value. See Arkansas State Highway Commission v. Phillips, 252 Ark. 206, 478 S.W. 2d 27. Of course, we seldom reverse a chancellor’s findings as to credibility, particularly where, as here, the witnesses appeared before him. Marine Mart v. Pearce, 252 Ark. 601, 480 S.W. 2d 133 Massey v. Price, 252 Ark. 617, 480 S.W. 2d 337; Dodds v. Dodds, 246 Ark. 313, 438 S.W. 2d 54. We cannot do so here upon a cold, written record. It should be noted that appellee flatly denied that the incident upon which appellant relies ever occurred.
This leaves the case turning upon the adequacy of the corroboration of appellee, insofar as this point is concerned. His corroborating evidence cannot be called conclusive because the parties had lived in the same city, El Dorado, and admittedly had seen one another on many occasions. Appellee had lived with his sister, Mabel Adams, and her invalid husband, since August 10, 1969, the alleged beginning date of the three-year separation. Mabel Adams testified that Lewis had spent not more than six. nights away from her home in more than three years next preceding her testimony. She included in these nights occasions when he accompanied her Und her husband in going to Texarkana. Even most of these occasions, she said, he would eat supper at her house before leaving, and she fixed breakfast for him every morning before he went to work at 7:00 to 7:30. She said her brother had never been out late at night, but admitted that she did not know where he went whenever he left her house after supper, as he did on numerous occasions.
Johnny Ray Lee said that he had worked with Lewis in the employ of Hampton Construction Company off and on for 20 years, and that he saw Lewis every day when they worked on the same job. He testified that, during the preceding three years, Lewis had spent four or five nights with him when the two were going fishing early the following mornings. James Crain testified that his father-in-law owned the Hampton-Crain Construction Company, to which Crain had come in 1960 and by which Lewis had been employed for 15 years. Crain said that he had seen Lewis on the job'several times every day, but had not seen Lewis with appellant in two or three years. He said appellant often came by the job where Lewis was working, but would just sit in the car for several hours at a time without speaking to anyone. He stated that Lewis attended church regularly, going Sunday mornings and nights, Wednesday nights and any other time there was a church function. John Hampton testified that Lewis was a dependable car penter and had been employed by his company for more than 15 years. He corroborated Crain’s testimony about Lewis’ church attendance.
Lewis testified he had talked to appellant five or six times over the three-year period, had only seen her at night in passing uptown, and had spent only three, four or five nights away from the Adams home. He said that any other nights spent away from that house had been spent with the family at Texarkana on occasions such as holidays. He said that during the period he had spent the night with Johnny Lee when they wanted to get an early morning start on a fishing trip. We agree with the learned chancellor that it would have been virtually impossible for appellee to have produced witnesses, other than himself, who, singly or collectively, could account for his whereabouts every hour during the three-year period. Certainly, it was not intended that one seeking to establish this ground for divorce should have to produce corroborating evidence which would show the lack of cohabitation as convincingly as might be required to show nonaccess in paternity cases. The corroboration here is admittedly slight, yet it seems that Lewis called as witnesses those who would be most likely to know his whereabouts most of the time during the three-year period. We are unwilling to say the chancellor erred in finding the testimony of these witnesses was sufficient, in this bitterly contested case, to lead an impartial and reasonable mind to believe that the material testimony of Lewis was true.
The denial to appellant of property rights and support also presents a difficult problem. The chancellor’s findings of fault are only implicit in his denial of alimony and his holding that she was not entitled to any of appellee’s property or interest threin, except for the furnishings and appliances located in the home at 1225 Rock Island Street. Appellant gives us little aid on these points. The complete argument of appellant on them reads:
The Chancery Court was in error, of course, in returning to Gean Lewis the property she brought to 1225 Rock Island Street at the request of her hus band, in full settlement of the property rights of the wife, and the wife’s right of support and maintenance by her husband. Rose v. Rose, 254 Ark. 607, 495 S.W. 2d 524; McCormick v. McCormick, 246 Ark. at p. 344, 438 S.W. 2d 341.
In Rose v. Rose, 254 Ark. 605, 495 S.W. 2d 524, we said that the chancellor should render a ruling as to which party is at fault if the wife seeks alimony or a property division, and a divorce is granted upon the ground of three years’ separation. In McCormick v. McCormick, 246 Ark. 348, 438 S.W. 2d 23, we said when a divorce is granted on this ground, the question as to who is the injured spouse is then considered in the settlement of property rights and the question of alimony.
It has been suggested that these issues should not be considered by us because the failure to argue them constitutes a waiver. See Commercial Standard Insurance Co. v. Coffman, 245 Ark. 1005, 436 S.W. 2d 83. It has been implied that we will pass upon such assignments of error as are called to our attention in appellant’s brief gnd argument. Fitzhugh v. Leonard, 179 Ark. 816, 19 S.W. 2d 1010. Appellant had stated these points as follows:
Error of the Chancery Court in its finding and judgment that the wife, Gean Lewis, is not entitled to homestead and dower rights in the properties of her deserting husband.
Error of the Chancery Court in its finding and judgment that the wife, Gean Lewis, is not entitled to support and maintenance by her deserting husband, J. C. Lewis.
The rule of waiver should not be as strictly applied in an equitable proceeding as in one at • law, because an appeal in chancery opens the whole case for review as to all points raised in the court below and the law and facts are examined the same as if there had been no decision at nisi prius and a decree rendered upon such record. Woodruff v. Core, 23 Ark. 341; Arkansas Bankers’ Association v. Ligon, 174 Ark. 234, 295 S.W. 4; Grayson v. Bowie, 197 Ark. 128, 122 S.W. 2d 536. This does not mean the record is thrown open for a search for error or that a mere statement of a point requires review. It does mean, however, that appellant’s argument, scant as it is, must be taken to be sufficient to raise the issues. It is significant that appellee has taken it to be so without any suggestion that these points have been waived.
The finding of the chancellor in this regard seems to have been made without any actual determination of fault or finding as to who was the injured party. He said:
Here the Defendant does not seek alimony or a division of property because she denies Plaintiff’s grounds for divorce: She does, however, seek separate maintenance and possession of the home which the Court assumes requires it to determine the question of alimony and division of property. The “injured party” as used above means the party not at fault or the party at less fault. In Lewis v. Lewis, supra, the Court denied the Plaintiff herein a divorce under the doctrine of recrimination. The Court stated “However, the rule in Arkansas is that recrimination is applied only where the parties are equally at fault.”
The parties lived together as husband and wife a little over three years. Plaintiff has furnished the Defendant a home to live in since they separated in August of 1969 and has paid her $20.00 per week support since June of 1970. The Court is of the opinion that the Defendant is not entitled to alimony or any of the Plaintiff’s property or interest therein except for the household furnishings and appliances located in the home at 1225 Rock Island Street, which should be awarded the Defendant.
When we consider that, on the previous appeal from a decree on September 16, 1969, the parties were found by us to be equally at fault, a determination that appellant was not entitled to a property division or alimony must be based, to a great extent, upon evidence before the court in this case. Yet, this evidence was devoted almost exclusively to the question relating to the extent of the period of separation without cohabitation. We have held that where there is fault on both sides, alimony should be awarded. Clarke v. Clarke, 201 Ark. 10, 143 S.W. 2d 540. In that case, we overruled the chancellor’s denial of alimony and awarded $30 per month until the decree became final and $15 per month thereafter. We have also held that, even though the wife was principally at fault in the separation, she should receive an allowance for support where the evidence does not warrant the conclusion she was altogether to blame or that the husband was not partially responsible for the separation. Grytbak v. Grytbak, 216 Ark. 674, 227 S.W. 2d 633. Again we modified a decree denying relief to the wife by awarding alimony. In neither case was there any evidence that there was any substantial amount of property involved. It does appear that in this case there is a dwelling house which constituted the marital abode and in which appellant has lived since the separation. Ordinarily, where the wife is less at fault, or where she is the injured party, she would be entitled to the statutory award of an interest in the husband’s property, but her wealth and income are to be considered in determining whether she receives the full amount. Alexander v. Alexander, 227 Ark. 938, 302 S.W. 2d 781.
The holding of this court as to fault on the appeal in the previous case is not res judicata of appellant’s property and alimony rights because of our finding that the parties were equally at fault, according to Narisi v. Narisi, 233 Ark. 525, 345 S.W. 2d 620. However, we have said it would be res judicata of the issue of fault at that time. Carty v. Carty, 222 Ark. 183, 258 S.W. 2d 43. The statute does leave the court a wide latitude in considering matters and events beyond the usual scope of inquiry. In determining who is the injured party, any material and relevant evidence pertaining to matters and events both preceding and following the separation may be admitted. Narisi v. Narisi, supra; Alexander v. Alexander, supra.
The trial court in the first instance and this court, on appeal, are vested with broad powers and a wide latitude of discretion in determining the proper award of. dower and alimony when a divorce is granted on this ground. Narisi v. Narisi, supra; Martin v. Martin, 225 Ark. 677, 284 S.W. 2d 647. However, it is clear that there should be a determination of fault or of who is the injured party as a basis for the exercise of that power.
The general rule in equity cases is that, with the evidence fully developed, we should decide the case here without remanding it to the chancery court. Narisi v. Narisi, supra. We have, however, exercised our power to remand any case in equity for further proceedings when it is clear to us that the chancery court’s decision has been based upon an erroneous theory, where we cannot determine from the record before us the rights and equitites of the parties and where the chancellor is in a better position to pass upon the issues because of his familiarity with the circumstances and considerations surrounding the issue. Wilson v. Rodgers (on rehearing) 250 Ark. 355, 468 S.W. 2d 739, 750.
This is a case coming clearly within the exception to the general rule. A compelling factor in our determination to remand is the peculiar situation which obtains with reference to the records of prior litigation between the parties. Appellant, at the incepton of the trial in this case, asked to be heard on her motion for disqualification of the chancellor, even though her attorney acknowledged that he was aware of a previous order denying that motion. The attorney then offered the entire records in the two preceding cases in support of the motion for disqualification. The court reversed a ruling on this offer and proceeded to hear evidence. After the trial had been completed, the court entered an order denying the request for admission of these records. We find no other attempt to introduce these records into evidence in the present case, even though they or part of them, might be material and relevant on the question of alimony and property allowances. To say the least, it would seem likely that there would be much more evidence in those cases about the nature and extent of the property and income of the parties than appears in the record of this case, as abstracted. Courts cannot take judicial notice of their own records in other causes therein, even between the same parties. Murphy v. Citizens Bank of Junction City, 82 Ark. 131, 100 S.W. 894; Yarbro v. Gentry, 245 Ark. 602, 433 S.W. 2d 381.
Appellant has filed a motion for judgment in this court pursuant to a motion for accounting filed in the case previously appealed to this court and for attorney’s fees on both appeals. This motion is not sufficient to confer jurisdiction on this court as to the accounting. Apparently, appellant is laboring under the misapprehension that the present case and the previous one are the same case, but they are not. The present appeal is from the chancery court’s decree in appellee’s action for divorce on the ground of three years’ separation, filed more than two years after our decision on the appeal in the previous case. That case was remanded for further proceedings not inconsistent with our opinion. Lewis v. Lewis, 248 Ark. 621, 453 S.W. 2d 22. If appellant’s motion has been acted upon in the trial court, no appeal has been docketed in this court and our jurisdiction in the matter was terminated by the issuance of our mandate. Consequently, we cannot act on that portion of the motion. Appellant’s request for an allowance of attorney’s fees on the prior appeal is belated, to say the least, and we decline to act upon it after the lapse of more than two years. Our refusal to act is without prejudice to appellant’s seeking an allowance for attorney’s fee on that appeal in the trial court in any consideration given by that court to the overall question of allowance of such fees in that case, if the case is still pending and the question of liability for attorney’s fees has not been finally disposed of therein. In view of our remand of the case presently on appeal, it seems that the better procedure would be for the chancery court to consider the appropriate amount to be allowed appellant for attorney’s fees for services in that court and this one when further proceedings are concluded. It is so ordered.
We affirm the decree insofar as it awards a divorce to appellee, but we remand the case for further consideration of the issues relating to settlement of property rights and the questions of alimony and attorney’s fees.
Byrd, J., dissents as to the reversal. | [
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George Rose Smith, Justice.
In our substituted opinion on rehearing in this case, delivered on July 23, 1973, we reversed the judgment because the State had been allowed to introduce inadmissible hearsay evidence. In due course our mandate was issued, remanding the case to the circuit court “for further proceedings to be therein had according to law, and not inconsistent with the opinion herein delivered.”
Thereafter Upton filed in the trial court a motion to dismiss the information, on the ground that the case had not been remanded for a new trial. The trial court overruled that motion. Upton then filed a petition for habeas corpus in the United States District Court, reasserting the same point. Judge Oren Harris, to whom the petition was presented, suggested that the Attorney General seek a clarification of our opinion. .Such a request for clarification is now before us. The time for a response to the Attorney General’s petition has expired without any response having been filed, but we have studied Upton’s petition for habeas corpus and the supporting brief that was filed by his counsel in the federal court.
Upton contends that this court did not remand the case for a new trial, because our opinion ended with the word “Reversed” instead of “Reversed and remanded” or some similar phrase. We customarily use the terms interchangeably; so that no significance attaches to either one. We frequently end our opinions with the word “Reversed” even though the opinion itself shows that a new trial is contemplated. Among countless such opinions in our Reports, recent examples include Courtney v. State, 252 Ark. 620, 480 S.W. 2d 351 (1972); Morris v. State, 252 Ark. 487, 479 S.W. 2d 860 (1972); Swanson v. State, 251 Ark. 147, 471 S.W. 2d 147 (1971).
It is argued that our opinion in the case at bar should be construed as directing a dismissal of the information, in the light of § 12 of Act 333 of 1971, which reads:
A conviction shall be reversed and a new trial ordered where the Supreme Court finds that the conviction is contrary to the Constitution, the laws of Arkansas or for any reason determines that the appellant did not have a fair trial. Where appropriate, the Supreme Court shall reverse the conviction and order the appellant discharged. In all other cases, the conviction must be affirmed, but the sentence of the appellant may be reduced if it is deemed excessive. [Ark. Stat. Ann. § 43-2725.2 (Supp. 1971).]
We do not read the statute as having anything to do with the manner in which this court writes its opinions —a matter not falling within the authority of the legislative branch of the government. Vaughn v. Harp, 49 Ark. 160, 4 S.W. 751 (1886). But even if we did so interpret the statute, it states plainly that the court, where appropriate, sháll order the appellant discharged. We did not enter such an order. To the contrary, our mandate remanded the cáuse for further proceedings, which completely answers Upton’s presenf contention.
Harris, C.J., not participating. | [
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McHaney, J.
This is a suit by appellee as mortgagee of the land to enforce the right of redemption from a sale under a decree of the chancery court of March 7, 1927, foreclosing the lien of the Northern Road Improvement District for delinquent road taxes for the year 1925 on the west half of southeast quarter 35-2 south 5. Prior to this time, to-wit, on 'September 26, 1926, there was a sale of this same land for the road taxes for 1924 at which the district became the purchaser. Title remained in the district by virtue of this sale until March 3, 1930, when it was redeemed by appellee. The land again forfeited in 1925 for the nonpayment of taxes for the year 1924 on the assessment of benefits and was sold on April 15,1927, to the district under the decree of March 7,1927, as above stated. It is this last forfeiture and sale from which redemption is sought by this suit. The chancery court entered a decree permitting the redemption of the land.
Without going into the statutes fixing the period of redemption and determining whether the period of redemption had expired, we have reached the conclusion that the district was without power to maintain an action for the delinquent taxes of 3925, and that the decree of March 7, 1927, based thereon is void, and that the sale of April 15, 1927, is likewise void. The district acquired the title to the land by virtue of the previous sale of September 26,1926, subject to the right of redemption, and title was, therefore, in the district at the time the last suit was brought and the decree rendered. At the time the 1925 taxes became delinquent, the district was the owner of the property, subject to the right of redemption for the period prescribed by law, and when redemption was made from that sale on March 3, 1930, the district should have required all subsequent installments of taxes on betterments, which were then due, to be paid. Appellants’ title to the land is dependent upon the sale of April 15,1927, for the taxes of 1925, as they purchased from the district on March 29, 1929. They acquired no better title than the district had by reason of such sale. In Robinson v. Indiana & Arkansas Lumber & Mfg. Co., 128 Ark. 550, 194 S. W. 870, this court held that while the title to land rested in the St. Francis Levee District by virtue of a sale for delinquent taxes to the district, at which it became the purchaser, the land was not subject to taxation for State and county purposes. This case was followed in Kelley Trust Co. v. Lundell Land & Lbr. Co., 159 Ark. 218, 251 S. W. 680. See also Miller v. Henry, 105 Ark. 261, 150 S. W. 700. It seems to us that it necessarily follows that, if land is exempt from general taxation while the title rests in an improvement district, it is also exempt from sale for the taxes of the improvement district while.it holds the title. Appellants contend that the decree of foreclosure of March 7, 1927, condemning the land to be sold for the 1925 assessment is conclusive. We think not. While the decree is valid on its face, yet it now appears that the land was not subject to sale for taxes because at the time the title was in the district. Therefore, the chancery court was without power to condemn the land for sale. Appellants also say that this is a suit to redeem which necessarily recognizes the validity of the sale. While in form it is a suit to redeem, we think we may treat it as a tender of the amount of taxes and penalties due—in 1925, because when appellee redeemed from the 1926 sale for the 1924 taxes, he was due to pay the district' all taxes on assessments then delinquent.
The decree of the chancery court is correct, and it is therefore affirmed.
Kirby, J., dissents. | [
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George Rose Smith, Justice.
This is a workmen’s compensation case arising from a back injury which the appellee suffered in the course of his employment. According to the medical testimony, the injury resulted in permanent partial disability of 15% as apportioned to the body as a whole. The referee and the commission increased the award to 25%, which was upheld by the circuit court. For reversal the insurance carrier contends, first, that it should not have been charged with a fee for the claimant’s attorney upon the first 15% of disability, because that part of the claim was not controverted (Ark. Stat. Ann. § 81- 1332 [Repl. I960]), and secondly, that there is no substantial evidence to support a finding of disability in excess of 15%. We agree with the carrier’s first contention but not with the second.
Downs sustained his back injury in June, 1971, while carrying a heavy electric motor in the appellant Fal-dón’s shop. Surgery was necessary. Dr. Lockhart, of the Holt-Krock Clinic, performed a laminectomy, removing an intervertebral disc. On September 27 Dr. Lockhart found that Downs was able to resume light work. The doctor, making no evaluation of permanent partial disability, instructed the patient to return for an evaluation after he had been at work for 30 days. Downs obtained light employment on October 8, but he did not return to the clinic as he had been told to do. The insurance carrier terminated its payments for total temporary disability on October 20, presumably because Downs had gone back to work. On December 8 the clinic sent a final report to the insurer, stating that the extent of permanent disability had not been assessed, because the patient did not return after October 8.
Downs, apparently without communicating either with Faldón or with the insurance carrier about a possible claim, employed an attorney, Robert Law. Law discussed the matter with the insurer or its adjuster. On January 3, 1972, Law wrote to his client, the claimant, saying in part:
In checking into your case further, I find that apparently Dr. Lockhart when he examined you the last time either failed to make a note of your permanent-partial disability or else he wants to see you again for that purpose.
At the request of the insurance company, we have made another appointment for you to see Dr. Lock-hart in his office on January 20 at 9:30 a.m. At that time I think Dr. Lockhart will, perhaps, give us a permanent-partial disability rating in order that we might enter into a settlement talk with the insurance company.
Downs was examined by Dr. Lockhart on February 3. On February 22 the doctor notified the insurance carrier that he had examined Downs and that “a permanent partial disability of the body as a whole of 15% is suggested.” Within less than a week the insurer accepted that evaluation by forwarding its check for the amount then due and explaining that the rest of the compensation would be paid in installments every two weeks for 48Vz weeks. Mr. Law disagreed with the 15% assessment of permanent partial disability and requested a hearing, which resulted in the 25% award now before us.
We find no substantial basis for the commission’s finding that the insurance carrier controverted the 15% disability claim. The Statute provides than an employer desiring to controvert a claim shall file with the commission a statement of the grounds on which the claim is controverted. Ark. Stat. Ann. § 81-1319 (d). There is no contention in the case at bar that either the employer or the carrier ever filed any such statement or made any other written or oral denial of liability.
The referee, whose finding upon this point was affirmed by the commission without comment, concluded that the carrier had controverted the claim because it made no effort to determine the claimant’s disability after payments were stopped on October 20. The referee reasoned that “the fact that Dr. Lockhart had performed a hemalami-nectomy and removed an intervertebral disc . . . would certainly put the respondents on notice that the claimant would receive some permanent disability.” The referee observed that it was the claimant’s attorney who made the appointment with Dr. Lockhart for an evaluation of permanent partial disability.
Accepting all the facts referred to by the referee, it does not follow that the carrier controverted the claim. A claim must exist before it can be controverted. On October 20 Downs had been paid in full for his total temporary disability and had obtained work. He had been instructed to return to the Holt-Krock Clinic after 30 days for an evaluation, but he failed to do so. It was he who was in default, not the insurer. When that default was finally remedied, by the February report made by Dr. Lockhart, the carrier accepted the doctor’s evaluation and at once paid the amount due. No importance can be attached to the fact that Mr. Law made the appointment with Dr. Lockhart, because Law stated in his letter to his client that he was acting at the request of the insurer.
The only remáining basis for the referee’s finding is his statement that the performance of a “hemalaminec-tomy” and the removal of a disc should have put the carrier on notice that the claimant would receive some permanent disability. Although Dr. Lockhart testified that “the type of injury” was such that he would have assumed that the patient would have permanent partial disability, there is nothing to indicate that the insurance company should have known that fact. At the least a medical question was involved, which was plainly not such a matter of common knowledge as to be the subject of judicial notice. See Larson, Workmen’s Compensation Law, § 79.54 (1971). Moreover, the claimant had completed his healing period, had gone back to work, and had disregarded Dr. Lockhart’s request that he return after 30 days for an evaluation. Upon the record it cannot be said that the insurer’s inaction amounted to a denial of liability.
There is, however, substantial proof to support the finding of a 25% disability. The commission, under the rule of Glass v. Edens, 233 Ark. 786, 346 S.W. 2d 685 (1961), was not limited to the medical testimony in determining the extent of disability. At the time of the hearing Downs was earning $3.00 an hour. His present employer testified in substance that if Downs had not been partially disabled he would be earning from $3.60 to $4.00 an hour. That testimony, as well as other proof in the record, amply supports the award.
Affirmed in part, reversed in part.
Harris, C.J., not participating. | [
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Hart, C. J.
James Turnage prosecutes this appeal to reverse a judgment of conviction for the crime of murder in the first degree.
The first assignment of error is that the court erred in not sustaining a demurrer to the indictment. The rec ord shows that George Washington, James Turnage and Lindsey Turnage were indicted for the oxime of murder in the first degree charged to have been committed by killing William H. Roberts while engaged in an attempt to' rob him. The contention of counsel is based on the allegations of the indictment using the word “intent” instead of the word “attempt” to rob W. H. Roberts. The record shows that this assignment of error was decided adversely against this contention in the case of Washington v. State, 181 Ark. 1011, 28 S. W. (2d) 1055. This is a companion case to that, and, inasmuch as the indictment is set out in full in the Washington case, we do not deem it necessary to repeat it here. We there held that in crimes which required force as an element in their commission, such as robbery, there is no substantial difference between an assault with intent and an assault with attempt to commit the offense. What we there said is conclusive against the position now taken by counsel for the defendant. In addition, it may be said that the indictment charged that the defendant “with a felonious intent then and there to rob William H. Roberts did assault, kill and murder the said William H. Roberts with a certain pistol loaded with gun powder and bullets” et cetera. This, in plain language, charges the defendants with killing Roberts while attempting to ro'b him, and no one could have been misled by the language used. It is of itself a substantial compliance with the language of § 2343 of Crawford & Moses’ Digest under which the defendants were indicted.
It is next insisted that the court erred in refusing to require the State to elect whether it would try the defendant for murder committed under the provisions of § 2343 of the Digest, or for murder as otherwise defined by the statute. We do not think there is any merit in this contention. The record shows that the defendant was tried for murder charged to have been committed under § 2343 of the Digest, that is to say, for murder committed while in the attempt to perpetrate robbery. All of the evidence introduced by the State and all the instructions given by the court unmistakably point to this fact, and counsel for the defendant could not have been misled in the premises.
The most important assignment of error relates to the legal sufficiency of the evidence to support a verdict of guilty of murder in the first degree and the fixing of the death penalty therefor by the jury. A proper consideration of this question necessitates giving a full outline of the circumstances leading up to, and including, the commission of the crime. According to the testimony of Mrs. William H. Roberts, wife of the deceased, her husband was shot on the night of December 7, 1929, at their filling station on the Galloway Pike about three miles east of North Little Rock in Pulaski County, Arkansas, and died shortly afterwards from the wounds received. Just before he was shot, he was sitting in the filling station with witness and C. J. Gordon. Witness looked out of the front window and saw three negroes go from the front down the side of the building toward the rear of the building. Witness told her husband to go into the back room and see what they wanted. Roberts walked into the back room and witness heard two shots fired and immediately after that five more shots. The first two shots were not so loud as the last five. Witness’ husband came in at the front door with his gun in his hand.
Other evidence tended to show that Roberts was shot by George Washington, and that the gun used was smaller caliber than that of Roberts. A. R. Lamb, a deputy sheriff, testified that at the time the defendant was arrested for the murder of W. H. Roberts he had a thirty-eight Special Smith & Wesson pistol under his pillow which was loaded —-this was the next night after the killing. Witness talked to the defendant that night, and the defendant first denied knowing anything about the killing. Finally he told the witness that, if the rest of them had told it, he would tell it too, and stated that they (meaning George Washington and his 'brother, Lindsey Turnage, and himself) went up to the* filling station where Roberts was killed. They stopped the oar before they got to the filling station. Defendant first pretended not to know what they went for. Witness asked the defendant what they were going- np there for and he said that they were going np there to rob- the filling station; that is, he said that one of the others told him that they were going up there to rob the filling station. After the killing occurred officers examined a field near' the filling station and found tracks in it going from the station which fitted the feet of James and Lindsey Turnage. Another officer testified that the defendant admitted to him that he had a sAveat rag under his hat and that George Washington and Lindsey Turn-age each had a rag, or loosely fitting handkerchief, around his neck.
According- to the testimony of George Washington, he was twenty-nine years old, and had been tried and convicted for killing W. H. Roberts; that he, in company with James and Lindsey Turnage, got out of their car and went around Robert’s filling station toward the back of the building; that they passed by the front window and went around toward the back. When they got around to the back Roberts came to the door and shoved it open. Just as he shoved it open James Turnage said, “Look out, Lindsey,” and witness was shot. The witness admitted that he then shot at Roberts. James and Lindsey Turnage ran off when the shooting commenced. Witness testified that he had his pistol in his raincoat and that James and Lindsey Turnage each had a pistol in a holster attached to his belt.
The confession of the defendant was also introduced in evidence and in it the defendant stated that George Washington had told them on the way up there that they were going to rob the filling station. According to the testimony of the defendant, he left just as soon as he saw George Washington going towards the rear of the filling station, and never had any intention of helping him rob it. The testimony shows that Lindsey Turnage was about eighteen years of age and that James Turnage was twenty-eight years old.
In testing the legal sufficiency of the evidence to support the verdict it must be viewed in the light most favorable to the State. As we have already seen, the indictment was found under § 2343 of the Digest and charges the defendant with murder committed while attempting to perpetrate robbery. An attempt, in general, is an overt act to do a specific thing; it must be something tending to accomplish the end, but falling short of committing it. Here the jury was warranted in finding something more than an intent and preparation to commit the crime of robbery. It is true that under the evidence adduced in favor of the defendant he abandoned any attempt to commit the crime of robbery before any overt act was committed by George Washington, but it cannot be said that his testimony is uncontradicted. They went to the filling station in the nighttime, and the wife of the deceased saw them going toward the rear of the building. Each of them had a loose rag or handkerchief tied around his neck which might have been used for a mask. Each of them was armed with a pistol. According to the testimony of the defendant himself, he knew that something wrong was intended when Washington started toward the rear of the building. This showed that the defendant himself was aware that a. crime of some sort was about to be committed. While the defendant denies any participation in the crime, Washington testified that he was with him when Roberts opened the door. This shows that the defendant was with Washington at the time that the latter did the shooting. It is true that Washington testified that Roberts shot first, but the jury was also warranted in not believing this to be true. According to the testimony of Mrs. Roberts, the two shots first fired were from a smaller gun than the five shots later fired. The evidence showed that the gun used by Washington was of smaller caliber than that used by Roberts. This was a circumstance tending to show thait Washington fired first. The jury doubtless believed that all three of the negroes went to the rear of the filling station, each armed with a pistol with, handkerchiefs aronnd their necks which might be used for masks, for the purpose of entering the filling station from the rear and robbing the proprietor. They happened to be discovered by Mrs. Bobents, who told her husband. He went to the rear door to find out what was the matter and was shot just as he opened the door. He -began to fire at the negroes, and they ran away. These facts were plainly inferable from the facts and circumstances proved on behalf of the State and fully warranted the jury in finding that all three of the negroes were present and were preparing to enlter the filling' station for the purpose of'robbing the proprietor, and that this was the beginning of the robbery or the attempted robbery and not merely an act preparatory to committing it. The act of "Washington in shooting was in furtherance of the original design to rob the filling station, and, being done in the prosecution of such unlawful design, was murder. It was the natural and probable consequence of it, for which all three must be held accountable. The jury might have found that all three were present, and in the eye of the law the act of Washington, who actually did the shooting, was the act of each. The jury was warranted in finding that each formed the felonious intent of robbing the filling station, and, while all were present, Washington shot Boberts in pursuance of that intention and while carrying it into execution. No matter which one fired first, the killing resulted in homicide and was murder. The transaction had gone beyond intent and preparation and had passed into acts which -amounted to an attempt at robbery. See Henry v. State, 151 Ark. 621, 237 S. W. 454 ; Harris v. State, 170 Ark. 1073, 282 S. W. 680 ; and Clark v. State, 169 Ark. 717, 276 S. W. 849. Therefore we hold that the evidence was legally sufficient to support the verdict.
The next assignment of error is that the court erred in allowing the coroner to read the statement of the defendant taken at the coroner’s inquest. Beliance to sustain this assignment of error is placed upon the case of Dunn v. State, 2 Ark. 229. We do not consider this assignment of error well taken. According to the testimony of the coroner the confession in question was not taken during the coroner’s inquest, but it was a confession freely and voluntarily made before him by the defendant. No inducement whatever was held oult to the defendant to cause him to make the confession. There was no hope of gain or torture of fear or any effort made to compel him to testify at the inquest. The confession was made before the inquest was held, and was freely and voluntarily given. Hence it was admissible on the same ground as if iit had been made to the sheriff or anyone else who was investigating the crime. Bullen v. State, 156 Ark. 148, 245 S. W. 493 ; and Sutton v. State, 162 Ark. 438, 258 S. W. 632.
The next assignment of error is that the court erred in allowing C. J. Gordon to testify that when Roberts got back into the filling station and lay down on the bed he was told that Mrs. Roberts had gone to call the ambulance and Roberts remarked that they (meaning the negroes) had gone that way and would hurt his wife. We do not think there was any error in admitting this testimony. It was an incident to what was done immediately after and in connection with the killing, and was admissible as shedding light on the transaction. It would have been difficult to have given a connected account of the killing without stating all that was done and said concerning it at the time. Childs v. State, 98 Ark. 430, 136 S. W. 285.
The next assignment of error is that the judgment should be reversed because two of the jurors read a lengthy article in the daily paper relating to the homicide. The jury was allowed to separate for the night, and it developed that two of them had read the article in the morning paper. They were admonished by the court that what the newspaper stated was not a record of the court and had no bearing on the case, and they were specially told not to be influenced by the article in any respect. In all of the instructions the court told the jury that they were the judges of the evidence and to be guided alone by it in arriving’ at their verdict. Hence we hold that this assignment of error is not well taken.
It is next insisted that the court erred in admitting to the jury the confession of Lindsey Turnage. It will be remembered that James and Lindsey Turnage were jointly indicted and were tried together. The court, several times during the course of the trial, as well as in the instructions given, told the jury that the confessions made by the two brothers could not be used against each other. In plain language the jury was told that what Lindsey Turnage had confessed should not be used against James,- and, inasmuch as the testimony in both cases was practically the same, we cannot see how any prejudice whatever could have resulted.
It is next insisted that the court erred in giving instruction No. 8 which reads as follows: “If you find from the evidence that James Turnage, Lindsey Turnage and George Washington conspired together to commit the crime of robbery, and, pursuant to such conspiracy or agreement, the defendants and George Washington went to Wm. H. Roberts’ place of business to rob, but further find from the evidence that the defendants, or either of them, abandoned the purpose of such conspiracy or agreement prior to the time of the attempted robbery and also find that George Washington had notice of such abandonment before the attempt to rob was made, then the defendant, or defendants, so abandoning such purpose are not chargeable with the hilling of Wm. H. Roberts. And you are instructed that if you find from the evidence that George Washington had notice of such abandonment on the part of the defendants before the attempted robbery, the length of time before is immaterial.”
It is insisted that the instruction is erroneous in telling the jury as a matter of law that George Washington, who did the actual shooting, had attempted to rob Wm. H. Roberts. We do not think so. The instruction, when read in its entirety, submits to the jury not only to find whether there had been a conspiracy to commit the crime of robbery, but also to find whether the purpose of committing the robbery had been abandoned before any attempt had been made to commit it, and also to find whether there had been any attempt on the part of anyone to commit the robbery. In other instructions the court specifically told the jury that it was the judge of the credibility of the witnesses and also of the evidence. We do not think the instruction is erroneous within the rule laid down in Jones v. State, 59 Ark. 417, 27 S. W. 601, in that the court assumed the existence of any fact and thereby invaded the province of the jury. It did not assume there was an attempt to rob by someone, but left that question to be determined by the jury from the evidence. Hogue v. State, 93 Ark. 316, 124 S. W. 783. The instructions were full and complete and presented to the jury every phase of the case. No question was singled out and given undue prominence. No single circumstance was emphasized. The case was tried upon competent evidence, and the rights of the defendant were carefully guarded.
Finally it is insisted that the verdict of the jury should be reduced from the death penalty to that of life imprisonment. There is noithing in the record which would warrant the court in doing so. James and Lindsey Turnage were indicted and tried together; the jury .found each guilty of murder in the first degree and fixed the death penalty in the case of James Turnage and life imprisonment in the case of Lindsey Turnage. Presumably this was done because of the youth of Lindsey Turnage, but in any event it was the peculiar province of the jury to fix the punishment in each case, and on appeal this court has no power to reduce it unless for the purpose of eliminating some error committed by the trial court. It follows that the judgment must be affirmed. | [
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Lyle Brown, Justice.
Appellant was convicted of burglary, and of robbery, growing out of the same incident, and was sentenced to five years on each charge. A second person similarly charged entered a plea of guilty. For reversal it is contended that the court erred in admitting statements made by appellant to the sheriff anil another to the prosecuting attorney.
Appellant made an incriminating oral statement to the sheriff on the day of his arrest. It is appellant’s contention the State did not establish that appellant was given the Miranda warnings. The sheriff testified he first advised appellant of his constitutional rights but did not elaborate, that is, he did not specify the particular rights of which appellant was advised. Counsel for appellant did not on cross-examination ask the sheriff to list the particular rights given. Appellant offered no testimony on the point. We know of no case authority which requires an officer to particularize the constitutional rights given unless he is asked to do so on cross-examination, or, if deemed necessary, on rebuttal.
With respect to a written statement given the prosecuting attorney it is again asserted that the State did not establish that adequate warnings under Miranda were given. A few days after appellant’s interview with the sheriff, appellant was taken before the prosecuting attorney. A criminal investigator from the sheriff’s office accompanied appellant to the prosecutor’s office. That officer testified that appellant was there advised of his constitutional rights. There was no cross-examination on the point and no evidence was offered to refute the testimony of the officer.
The other objection here made to the introduction of the statement taken by the prosecuting attorney is based on Ark. Stat. Ann. § 43-915 (Repl. 1964):
In all cases where two (2) or more persons are jointly or otherwise concerned in the commission of any crime or misdemeanor, either of such persons may be sworn as a witness in relation to such crime or misdemeanor, but the testimony given by such witness shall in no instance be used against him in any criminal prosecution for the same offense.
The contention is without merit because we have held that the recited statute “applies only to proceedings before a grand jury.” Rhea v. State, 226 Ark. 581, 291 S.W. 2d 505 (1956). In Rhea we also said:
The statute was enacted as § 67 of Chapter 45 of the Revised Statutes of 1838. This chapter relates to criminal procedure and, as may be readily seen from the table of contents which follows its title, is subdivided to conform tó the various steps involved in a criminal proceeding. Sections 59 through 77 define the procedure to be observed by grand juries. When § 67 is read together with the sections that immediately precede and follow it there can be no doubt that it pertains only to testimony taken in the course of a grand jury investigation.
Affirmed. | [
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George Rose Smith, Justice.
This is a personal injury suit. Two of the appellees, Janice Covington and her mother-in-law, Beatrice Covington, were injured in a traffic collision in the city of Searcy while they were riding in an ambulance owned by J. & J. Ambulance Service, Inc. The ambulance company did not have liability insurance upon its vehicle. The injured plaintiffs therefore brought suit against their own insurance company, the appellant, under an uninsured motorist clause, and against the other áppellee, Evelyn M. Lewis, who was driving the car that collided with the ambulance. The jury, attributing all the negligence to the driver of the ambulance, made awards of $750 to Janice Covington and $5,000 to Beatrice Covington. For reversal the appellant relies upon three asserted errors in the court’s instructions to the jury.
The most serious contention is that the trial court was wrong in ruling as a matter of law that Beatrice Covington was not a guest of the ambulance company. The pertinent facts are that the two women were together upon a street in Searcy when the younger woman, who was pregnant, fainted. Someone called for an ambulance, which arrived promptly. The driver, Charles Steward, had no assistant. A bystander helped him place the patient on a cot in the back of the ambulance. Steward asked if there was anybody with the younger Mrs. Covington. Beatrice Covington said, “I am,” and got in the vehicle. She sat in the back of the ambulance and bathed her daughter-in-law’s face with a wet cloth. On the way to the hospital Steward, driving above the speed limit, ran a stop sign and collided with Mrs. Lewis’s car. The ambulance company’s fee of $25.00 was paid by Beatrice Covington’s husband.
The trial court was right in holding that the elder Mrs. Covington was not a guest. In Simms v. Tingle, 232 Ark. 239, 335 S.W. 2d 449 (1960), we defined a guest, with reference to the guest statute, in this language:
The geier ' rule for determing the status of a passenger in an automobile is that if the transportation or carriage in its direct operation confers a benefit only on the person to whom the ride is given and no benefits other than such as are incidental to hospitality, companionship, or the like, upon the person extending the invitation, the passenger is a guest within the statutes . . . , but if the carriage tends to the promotion of the mutual interests of both the passenger and the driver for their common benefit, or if the carriage is primarily for the attainment of some objective or purpose of the operator, the passenger is not a guest.
We have also noted that the guest statute was passed to remedy the evil of collusive suits where the real defendant is an insurance company, with both the host and the guest interested in establishing liability. Ward v. George, 195 Ark. 216, 112 S.W. 2d 30 (1937). In the case at hand there was no reason for Mrs. Covington and Steward to establish by collusion a fictitious liability on the part of the ambulance company.
No relationship of hospitality or companionship existed between Mrs. Covington and Steward. To the contrary, the transportation was a business trip involving (as we shall see) a common carrier and its passengers. It was a single transaction. We find in the proof no fact that would warrant the jury in dividing the transaction into two parts, one being compensated and the other being gratuitous.
Upon similar facts the Supreme Court of Texas reasoned that a person in Mrs. Covington’s position might be regarded as a guest of the patient but not as a guest of the ambulance company. Cedziwoda v. Crane-Longley Funeral Chapel, 155 Tex. 99, 283 S.W. 2d 217 (1955). We agree with that court’s conclusion: “Under the facts of this case, a sick person who hires an ambulance for transportation certainly has a right to have someone ride with her in the ambulance. The purpose of Article 6701b is to prevent fraudulent collusion between an insured and a guest. The situation at bar does not fall within the purpose of the statute.”
It is next contended that the trial court erred in placing upon the ambulance company the high standard of care that a common carrier owes to its passengers. See AMI 1701 and 1702. According to the ambulance company’s own testimony it was engaged in the business of carrying passengers for hire. Upon the proof the trial court was justified in concluding that the ambulance company was a common carrier within our statutes and cases. Ark. Stat. Ann. § 73-1758 (a) (7) (Repl. 1957); Merchants’ Transfer & Whse. Co. v. Gates, 180 Ark. 96, 21 S.W. 2d 406 (1929); Arkadelphia Milling Co. v. Smoker Mdse. Co., 100 Ark. 37, 139 S.W. 680 (1911).
Finally, the appellant contends that the trial court should have given AMI 912, imposing upon Mrs. Lewis the duty of driving her car over to the curb and stopping when she heard the ambulance’s siren. In making this argument the appellant concedes that the ambulance was not in fact an emergency vehicle within the purview of AMI 912. Walden v. Hart, 243 Ark. 650, 420 S.W. 2d 968 (1967). Nevertheless, the appellant insists that the instruction should have been given, because Mrs. Lewis could not see the ambulance when she first heard its siren and was therefore under a duty to act upon the assumption that the siren was that of an authorized emergency vehicle, such as a police car or fire engine.
That reasoning is unsound. Needless to say, if the siren had proved to have been that of an authorized emergency vehicle, Mrs. Lewis would have acted at her peril in not doing what the law required her to do in the situation. But the ambulance was not an authorized emergency vehicle; so Mrs. Lewis’s duty was merely that of exercising ordinary care. For the court to have given the requested AMI instruction would have clothed the ambulance company with a protected status to which it was not entitled by law.
Affirmed.
Fogleman, J., dissents. | [
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Conley Byrd, Justice.
Appellant, Mutual Life Insurance Company of New York, issued a total disability policy to appellee, Carey E. Clark, in which the term total disability is defined to mean "... a disability which wholly and continuously disables the member so that he can perform no duty pertaining to his occupation and during which he is not engaged in any occupation for remuneration or profit. . . .” To reverse a judgment, entered on a jury verdict, in favor of appellee for total disability benefits, appellant contends:
“I. The court erred in overruling the defendant’s motion for directed verdict made at the conclusion of all of the evidence and in refusing to give defendant’s requested instructions Nos. 2 and 3.
II. The court erred in giving court’s instruction Mo. 6 (plaintiff’s No. 5) over the general and specific objections of appellant.
III. The Court erred in giving court’s instruction No. 8 (plaintiff’s No. 6) over the general and specific objections of appellant.”
The record shows that appellee, a veterinarian, was the sole owner and operator of Clark Animal Hospital in El Dorado from 1950 until April 12, 1968, when he suffered a heart attack. At that time he was placed in intensive care for nine days and remained in the hospital for an additional ten days before being permitted to go home. Upon being advised by his physician that he could not continue to operate the animal hospital and carry on his veterinarian practice, he employed a young veterinarian, Dr. Granville Wright, to take over the main load of his occupation. Dr. Wright stayed for two years before leaving. Appellee then employed Dr. Gene Dunn and later employed a second veterinarian to assist in the operation of the animal hospital and to help with the large animal practice. Appellee no longer does any large animal practice but does go by the hospital. Some days he spends no more than five minutes at the animal hospital. Other days he spends as much as five or six hours. It is estimated that he will average somewhere between 14 to 16 hours at the clinic each week. While there he may perform minor operations on small pets, such as spays or tonsillectomies. He is interested in the financial success of the hospital and likes to be consulted on the purchase of drugs and difficult cases. His gross receipts and net profits for the operation of the animal clinic for the years of 1966 through the first nine months of 1972 were as follows:
Year Gross Receipts Net Profit
1966 $54,596.00 $19,426.00
1967 57,930.00 20,803.00
1968 50,163.00 10,572.00
1969 66,980.00 13,771.00
1970 80,740.00 26,763.00
1971 95,279.00 29,252.00
1972 (9 mos.) 82,252.00 26,971.00
The foregoing figures for the years 1968 through 1972 have used the salaries of the two employed veterinarians as expenses before arriving at net profits.
Dr. Jacob Ellis testified that appellee suffered what is technically known as an infarction of the miocardiam which is sometimes referred to as coronary thrombosis or coronary occlusion. He considers appellee to be permanently and totally disabled. He consented to appellee working if he had proper assistance to where he would not negotiate physical or mental effort that would be stressful to him under any set of circumstances. While testifying that appellee was more disabled in 1972 because of the progressive nature of the disease than he had been since April of 1968, Dr. Ellis testified that it was necessary that a person, with appellee’s disease, be stimulated physically and mentally to the fullest extent possible to improve circulation. He described the situation as “walking a tightrope between activity and inactivity.”
Dr. Joseph B. Wharton, Jr. stated that in his opinion appellee was unable to perform his doctor of veterinary medicine work physically to any degree that would gain him a continuous livelihood.
Appellant paid the disability benefits for 1968. In 1969, after some investigation, appellant wrote appellee as follows:
“Dear Dr. Clark:
This is in reference to our conversation of May 27th.
As you are aware, we authorized payment of your Disability Benefits under this Policy. I would anticipate that by now you have received your benefit check from AVMA.
I would like to point out however that there was some doubt in our minds as to whether you currently qualified for these payments under the terms of the policy. However, at this time we have resolved the doubts in your favor.
Your request that we accept claim statements on a quarterly rather than a monthly basis cannot be complied with. While we are quite pleased to learn that your doctor indicates that he no longer needs to see you every month because of the progress you have made, we will, nevertheless, not be able to grant this request. However, we are willing to allow you to submit claim statements every other month.
I’m sorry for the delay which resulted however because of the circumstances of your particular situation it was necessary to conduct a thorough review of your file. If you have any questions, please feel free to call me.
Sincerely,
Milton W. Johnson
Senior Approver
Group A8cS Claims
Mail Drop 20-1”
In 1970 appellant had appellee examined by Dr. Wells in Little Rock, Ark. and continued the disability payments through December, 1971. On January 14, 1972, appellant wrote appellee as follows:
“Dear Dr. Clark:
Your file has been referred to me for review.
As you know your Policy defines total disability as ‘a disability which wholly and continuously disables the member so that he can perform no duty pertaining to his occupation and during which he is not engaged in any occupation for remuneration or profit.’
We no longer feel that you qualify for total disability benefits under this definition.
MONY is glad to have been of help to you during your period of total disability.
Sincerely,
(Miss) Anne McNamara
Senior Claims Approver
Group A&S Claims Section
Mail Drop 807”
POINT I. Appellant here argues that it was entitled to a directed verdict. In so doing it recognizes the effect of decisions such as Avemco Life Insurance Company v. Luebker, 240 Ark. 349, 399 S.W. 2d 265 (1966), and therefore does not seek a reversal on the grounds that there was insufficient testimony to go to the jury on the question of whether or not there were any substantial and material acts necessary to be done pertaining to appellee’s occupation that he could not perform in the usual and customary way.
On the other hand appellant contends that the definition means what its language says — i.e., that proof of physical disability or inability alone does not entitle appellee to recover, but that he must also prove by a preponderance of the evidence that during such period of disability he was not engaged in any occupation for remuneration or profit. In its reply brief appellant takes the view that the phrase “and during which he is not engaged in any occupation for remuneration or profit” should be treated as a condition precedent to recovery.
Most authorities recognize that “total disability” occurs where a professional is unable to perform any substantial part of his ordinary duties even though he can still perform some of them, Leibowitz v. Mutual of Omaha Ins. Co., 71 Misc. 2d 838, 337 N.Y.S. 2d 314 (1972), or that he may be able to perform some acts at intervals, Pacific Mutual Life Ins. Co. v. McCrary, 161 Tenn. 389, 32 S.W. 2d 1052 (1930). Our own cases have given similar constructions to policies such as is here involved. See Alexander v. Mutual Benefit Health & Accident Association, 232 Ark. 348, 336 S.W. 2d 64 (1960), and the cases therein discussed.
The definition of “total disability” here involved is not substantially different from the definition involved in New York Life Insurance Company v. Dandridge, 204 Ark. 1078, 166 S.W. 2d 1030 (1942), which provided that disability should be considered total when the insured is “wholly prevented from performing any work, from following any occupation, or from engaging in any job for remuneration or profit.” We there permitted a recovery on behalf of a deaf school teacher even though it was conceded she was not completely helpless. In Occidental Life Insurance Company of California v. Sammons, 224 Ark. 31, 271 S.W. 2d 922 (1954), we permitted a recovery for an insured suffering from a heart condition who had earned $180 as a part time salesman notwithstanding a house confinement clause. In each instance we have pointed out that we have refused to construe such clauses literally, for in that event the insured could recover only if he were continuously and helplessly confined to bed. We perceive no real distinction between the language of appellant’s policy and the clauses construed in our earlier decisions. Consequently, we hold that the trial court properly overruled appellant’s motion for a directed verdict.
POINT II. The instruction of which appellant complains provided:
“You are instructed that the provisions of the policy which I have quoted relating to total disability do not mean what a literal reading would require, that is, a state of absolute helplessness; but they mean that, if there are any substantial and material acts necessary to be done pertaining to Plaintiff’s occupation that he could not perform in the usual and. customary manner, he would be totally disabled within the meaning of this policy.”
Appellant objected on the basis that the instruction ignored the policy provision “and during which he is not engaged in any occupation for remuneration or profit.” We find no error. To accept appellant’s contention would require a literal construction of such policies which, as we have pointed out under Point No. I, supra, this and most other courts refuse to do.
POINT III. The instruction to which appellant here objects provided:
“You are instructed that insurance to compensate a total disability is not insurance upon one’s business but is a guarantee of continued personal fitness enabling one to employ and adapt not only his mental qualification and mental preparation for his business; but also the continued use of physical vigor and energy in the performance of manual pursuits connected with his business as well, to the extent that he may perform all the substantial and material acts necessary to be done in the conduct of his business in the usual way.”
The objection of appellant is that the instruction is abstract, reverses the burden of proof and ignores the requirement that appellee had to prove that he was not engaged in an occupation for remuneration or profit.
The contention that the instruction was abstract is not supported by the record. Appellant had introduced for comparison purposes appellee’s income tax records for the periods before and after the heart attack episode in April 1968.
The argument that the instruction ignored the requirement that appellee must prove that he was not engaged in an occupation for remuneration or profit is premised upon appellant’s theory that such a showing was a condition precedent to recovery. As we have pointed out under Point No. I, supra, policies such as this do not receive such a literal construction but are related to the definition of “total disability”. In fact the record would indicate that from April of 1968 through December, 1971, appellant must have interpreted the policy in accordance with our construction thereof since it made payments for those periods.
We do not understand how this instruction reversed the burden of proof that was clearly given to the jury under the other instructions.
Affirmed.
Fogleman and Jones, JJ., dissent. | [
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John A. Fogleman, Justice.
Petitioners are defendants in a medical malpractice action brought by Myrtle and Billy D. Burris in the Circuit Court of Pope County. They seek by writ of certiorari to quash the order of that court granting the motion of Mobley and Smith, as attorneys for the Burrises, to enter the name of James S. Cox as an attorney of record in this case to assist them, as associate counsel, in all phases of trial of the action. Mobley and Smith is a firm of attorneys licensed to practice in Arkansas and residing in Pope County. It was employed by the Burrises and, pursuant to that employment, filed a complaint. After answer had been filed by petitioners, Mobley and Smith filed the motion in question. Petitioners then moved to strike the order granting the motion of Mobley and Smith, alleging that this case was not one wherein a nonresident attorney was seeking admission for a single or particular case because, they alleged, Cox was practicing law in Arkansas without having been licensed to practice in Arkansas. This motion was denied.
It is admitted that Cox is a resident of Memphis, Tennessee, where he maintains his office for the practice of law and that he has been admitted to practice law in all courts of the state of Tennessee, but has not been licensed in any other state. Cox had previously participated, as associate counsel in one personal injury case, a will contest, and six medical malpractice actions filed in Arkansas. He had also consulted with Arkansas attorneys with respect to two other medical malpractice cases in which no suit has been filed.
It has been suggested that the petitioners, as the adversaries of the plaintiffs who would be represented by Cox, have no standing to question, on certiorari, the right of Cox to participate in the trial, or the right of respondents or their attorneys, Mobley and Smith, to employ Cox as an associate attorney in the case. It has been recognized in this state for 135 years that a party whose interest might be jeopardized by prosecution of a suit against him may require even a regularly licensed attorney, duly admitted to practice in the courts of this state, to show his authority to represent an adversary. Tally, Admr. v. Reynolds, 1 Ark. 99. See also, Cartwell v. Menifee, 2 Ark. 356. This right has subsequently been recognized in Pekin Stave & Mfg. Co. v. Ramey, 104 Ark. 1, 147 S.W. 83; Red Bud Realty Co. v. South, 153 Ark. 380, 241 S.W. 21; and Nunez v. O. K. Processors, Inc., 238 Ark. 429, 382 S.W. 2d 384. It is widely held in other jurisdictions that proceedings in a suit instituted or conducted by one not entitled to practice are a nullity, and if appropriate steps are timely taken the suit may be dismissed, a judgment in the cause reversed, or the steps of the unauthorized practitioner disregarded. See Bennie v. Triangle Ranch Co., 73 Colo. 586, 216 P. 718 (1923); Niklaus v. Abel Construction Co., 164 Neb. 842, 83 N.W. 2d 904 (1957); Landis v. Superior Ct., 232 Cal. App. 2d 548, 42 Cal. Rptr. 893 (1965); City of Downey v. Johnson, 69 Cal. Rptr. 830 (263 Cal. App. 2d 775) (1968); Stevens v. Jas. A. Smith Lumber Co., 54 S.D. 170, 222 N.W. 665 (1929); Duysters v. Crawford, 69 N.J.L. 229, 54 A. 823 (1903); Hazard v. Phoenix Woodworking Co., 78 N.J. Eq. 568, 80 A. 456 (1911); Maso Holding Corp. v. Einstein, 17 N.Y.S. 2d 655 (1939); Goldstein v. Marriott, 14 Pa. D. & C. 635 (1929), followed in Winters v. Sheporwich, 83 Pa. D. & C. 484 (1952); Colton v. Oshrin, 155 Misc. 383, 278 N.Y.S. 146 :1934); Anderson v. Coolin, 27 Idaho 334, 149 P. 286 (1915); Application of County Collector, 1 Ill. App. 3d 707, 274 N.E. 2d 164 (1971); Leonard v. Walsh, 73 Ill. App. 2d 45, 220 N.E. 2d 57 (1966). See 7 C.J.S. 725, Attorney and Client, § 16b. The question was raised in Goldstein by a motion by the adverse party to strike the complaint. In Stevens, it was raised by the plaintiffs modon to strike an answer signed only by nonresident attorneys. In Colton, where the court said that prejudice was to be conclusively presumed, the question was presented by the adverse party’s motion for mistrial. In City of Downey v. Johnson and Application of County Collector, the question was raised by the appellate court. In North Laramie Land Co. v. Hoffman, 27 Wyo. 271, 195 P. 988 (1921), it was held that the adverse party might properly move to strike a petition signed only by nonresident attorneys not admitted to practice in the state. See also Bradley v. Sudler, 172 Kan. 367, 239 P. 2d 921 (1952), 174 Kan. 293, 255 P. 2d 650 (1953).
On the other hand, it has been held that if and when a nonresident attorney, not licensed to practice in the state where an action is pending, seeks to practice in that action, the matter of his qualification will then be addressed to the discretion of the trial court, State Bar of Texas v. Belli, 382 S.W. 2d 475 (Texas 1964), and that, unless a party in interest in the particular case presents the question of the disqualification of a nonreisdent attorney to appear as counsel for an adverse party, his entitlement to practice before the court will be presumed and the question of his disqualification waived. Walker v. Walker, 123 So. 2d 692 (Fla. Ct. App. 1960). See also, Freeling v. Tucker, 49 Idaho 475, 289 P. 85 (1930). Whichever view we might take of the situation, it only seems logical that an adverse party who could question the authority of the attorney to represent his opponent can also, to the same extent, question the authority of that attorney to practice in the state, or the particular court in which the litigation is pending, insofar as that case is concerned. We have no hesitancy in saying that petitioners’ challenge to Cox’s participation in the trial was appropriately and timely made in the trial court.
But it is contended by respondents that certiorari is not available as a remedy to review the action of the trial court in this regard, and they have moved to dismiss the petition for that reason, saying that there are other adequate remedies. Among those suggested are appeal from any eventual judgment against petitioners, complaint to the Supreme Court Committee on Professional Conduct, and prosecution for violation of Ark. Stat. Ann. § 25-101 et seq. (Repl. 1962).
It is true that these and other remedies might have been appropriate at the instance of the proper party, if the facts should justify such actions. Petitions seeking judicial action against persons charged with the unauthorized practice of law have been entertained by the courts when filed by a local bar association or one of its committees or when presented on behalf of the state bar or one of its committees. 7 Am. Jur. 2d 103, Attorneys at Law, § 89. See Arkansas Bar Association v. Union National Bank of Little Rock, 224 Ark. 48, 273 S.W. 2d 408. It seems well settled that unauthorized practice of law, at least by court appearances, is an unlawful intrusion and usurpation of the function of an officer of the court, and constitutes a contempt of any court in which or under whose authority or sanction the unauthorized person pretends to act. Bessemer Bar Association v. Fitzpatrick, 239 Ala. 663, 196 So. 733 (1940). See also, Freeling v. Tucker, 49 Idaho 475, 289 P. 85 (1930); New Jersey Photo Engraving Co. v. Schonert and Sons, 95 N.J. Eq. 12, 122 A. 307 (1923); State v. Barlow, 131 Neb. 294, 268 N.W. 95, 132 Neb. 166, 271 N. W. 282 (1936). While the pertinent authorities make it quite clear that contempt proceedings may be instituted by an interested bar association, or one of its committees, it does not seem that the right of an adverse litigant to initiate contempt procedures in such cases is so widely recognized. But there is respectable authority that the courts will not resort to this drastic remedy unless there is no other efficient remedy available and there is an evident need for summary action to protect the public and the jurisdiction of the court. See 7 C.J.S. 726, Attorney and Client, § 16c and cases cited. In any event, this remedy would undoubtedly be inadequate for petitioners, because it seems unlikely that punishment for contempt would be imposed after their motion to strike had been denied by the court in which the case was to be tried.
We have approved the granting of injunctive relief at the suit of the state bar association. See Arkansas Bar Association v. Union National Bank, supra; Beach Abstract & Guaranty Co. v. Bar Association of Arkansas, 230 Ark. 494, 326 S.W. 2d 900. This is generally accepted as a proper form of relief, particularly where class actions are involved. See Conway-Bogue Realty Co. v. Denver Bar Assn., 135 Colo. 398, 312 P. 2d 998 (1957); Hexter Title & Abstract Co., Inc. v. Grievance Committee, 5th Cong. Dist., State Bar of Texas, 142 Tex. 506, 179 S.W. 2d 946, 157 A.L.R. 268 (1944); Ann., 90 A.L.R. 2d 63, 14 A.L.R. 359. Here again the suitability and adequacy of this relief to an individual litigant to prevent his adversary from utilizing, as an attorney, a person not properly authorized to practice in the court wherein the litigation is pending are not so well recognized and are highly questionable, to say the least. This remedy is, generally speaking, an equitable one lying within the jurisdiction of our chancery courts. Harrison v. Knott, 219 Ark. 565, 243 S.W. 2d 642, 28 A.L.R. 2d 405; Kennedy, ex parte, 11 Ark. 598. The undesirability of one court’s interfering with proceedings pending in another of concurrent or coordinate jurisdiction and equal dignity, as a matter of comity, if not of jurisdiction, would seem to foreclose resort by petitioners to this form of remedy, even if it Were otherwise available to them. See Askew v. Murdock Acceptance Corp., 225 Ark. 68, 279 S.W. 2d 557; Butt v. Southwestern Distilled Products, Inc., 199 Ark. 750, 135 S.W. 2d 857; Wasson v. Dodge, 192 Ark. 728, 94 S.W. 2d 720; Wright v. LeCroy, 184 Ark. 837, 44 S.W. 2d 355. See also, Doss v. Taylor, 244 Ark. 252, 424 S.W. 2d 541.
Quo warranto on the relation of the proper authority has been found to be a proper vehicle for inquiry into the right of one who engages in the practice of law in a state, on the bases that this ancient writ is a demand by the state upon that individual to show by what right he exercised that privilege or franchise, and that unauthorized practice is a usurpation of an office or franchise. State v. Perkins, 138 Kan. 899, 28 P. 2d 765 (1934). We have recognized the writ as appropriate to prevent the unauthorized enjoyment of an office or franchise. Moody v. Lowrimore, 74 Ark. 421, 86 S.W. 400; State v. Evans, 3 Ark. 585, 36 Am. Dec. 468. It does not seem, however, that this writ could properly be invoked by petitioners. State v. Jones, 194 Ark. 445, 108 S.W. 2d 901; Moody v. Lowrimore, supra. It is intended, in such cases, only to subserve the interest and guard the rights of tbe whole community, and not private rights. Caldwell, Admr. v. Bell and Graham, 6 Ark. 227. If it could be invoked by petitioners, it may well have been rendered ineffective in these circumstances by our decision in Schirmer v. Light, 222 Ark. 693, 262 S.W. 2d 143. Even if available, quo warranto is not a remedy which excludes resort to other remedies, such as certiorari. Howell v. Howell, 213 Ark. 298, 208 S.W. 2d 22.
Resort to disciplinary proceedings against attorneys who associated Cox would certainly afford no remedy to petitioners, even if it were indicated. It is at least doubtful that Cox is subject to this action in Arkansas, even if the circumstances warranted it. Disciplinary action, however, is for the purpose of protecting the rights of the public in general and maintaining the public confidence in the bar, rather than protection of private rights or for inflicting punishment for a criminal offense. In re Silverstein’s Case, 108 N.H. 400, 236 A. 2d 488 (1967). Resort to criminal prosecution would only result in punishment of a violator but would accomplish nothing insofar as the participation of Cox in the trial is concerned, even if he should eventually be found guilty.
Certiorari cannot ordinarily be utilized as a substitute for appeal. No appeal from the present order would seem to be available until a final judgment against petitioners had been entered. State v. Nelson, 246 Ark. 210, 438 S.W. 2d 33. This does not mean, however, that actions of trial courts during the course of an action are not subject to review, in a proper case, by a court having supervisory jurisdiction, or that, in the exercise of that jurisdiction, resort may not be had to mandamus, prohibition or certiorari where appellate remedy is unavailable or inadequate. State v. Nelson, supra. Still, neither of these writs may be used to control the discretion of a trial court, correct its erroneous action, review findings of fact, correct an abuse of discretion, or review a finding or an erroneous conclusion drawn from the facts, except in matters going to the jurisdiction of the inferior tribunal, where there is a remedy by appeal. State v. Nelson, supra; North Little Rock Transportation Co. v. Sangster, 210 Ark. 294, 195 S.W. 2d 549; Sharum v. Meriwether, 156 Ark. 331, 246 S.W. 501; Howell v. Howell, supra; Fowler v. McKennon, 45 Ark. 94. See also, 14 Am. Jur. 2d 830, 831, Certiorari, §§ 64, 65, 66; 14 Am. Jur. 2d 782, Certiorari, §5.
The efficacy of the remedy by appeal after Cox had fully particpated in the trial is at least open to doubt. If it is available to petitioners, certiorari, in a court having supervisory jurisdiction, would still lie to quash a judgment which is void on its face, or to control the actions of an inferior tribunal which is proceeding illegally where no other mode of review has been provided. Reed v. Bradford, 141 Ark. 201, 217 S.W. 11; State v. Nelson, supra; McCain v. Collins 204 Ark. 521, 164 S.W. 2d 448. Petitioners argue that the circuit court was proceeding illegally. It can be argued, with some force, that the court’s order was void for want of jurisdiction or was in excess of its jurisdiction. The question is treated as jurisdictional in some states. See, e.g., Bradley v. Sudler, 172 Kan. 367, 239 P. 2d 921 (1952), 174 Kan. 293, 255 P. 2d 650 (1953). See also, Ebeling v. Continental Illinois National Bank & Trust Co. of Chicago, 272 Cal. App. 2d 724, 77 Cal. Reptr. 612 (1969); Herndon v. Lee, 281 Ala. 61, 199 So. 2d 74 (1967); Leonard v. Walsh, 73 Ill. App. 2d 45, 220 N.E. 2d 57 (1966); City of Downey v. Johnson, 263 Cal. App. 2d 775, 69 Cal. Rptr. 830 (1968).
In State v. Nelson, 246 Ark. 210, 438 S.W. 2d 33, we quashed, on certiorari, an order of a chancery court appointing a master on the ground that the court had proceeded illegally in that the appointment was not only premature but too comprehensive in scope. In Howell v. Howell, supra, we vacated divorce decrees as void, holding that they were rendered by a person who was neither a judge de jure nor de facto, because of the invalidity of an act purporting to create a second division of a chancery circuit. In doing so, we actually treated an appeal as a petition for certiorari. Our language there is rather appropriate to this situation. We said:
The right of a supervising court to deal with a particular proceeding in a manner consistent with justice and to thereby expeditiously dispose of issues is unquestioned where recourse to the procedure is not prejudicial to one who is not immediately before the appellate court and where there is no statutory or constitutional impediment. If the result arrived at is the only one that in any event could be reached, the party indirectly affected is not injured. To this end appeal may be treated as certiorari. The writ may not be used as a substitute for appeal. It is insufficient because only the face of the record and matters of which the appellate court takes judicial notice may be considered. But it does not follow that an appeal cannot be treated as certiorari; and this discretion to convert and to apply practical processes arises in those cases where through inadvertence or a lack of procedural understanding the wrong course has been pursued where the judgment or decree, however just and free from error, cannot stand because it does not in fact have judicial support.
The disposition we make of this case will render it unnecessary for us to actually decide that certiorari is proper in this instance. It is the only remedy invoked here by petitioners, and we will apply its intrinsic limitations on our review. Without actually deciding whether appeal is the proper remedy and treating the matter as if certiorari at this stage of the proceedings would be appropriate, we decide this case, as we did Stevenson v. McDonald, 77 Ark. 208, 91 S.W. 300, on the basis that petitioners are not entitled to relief by certiorari on the record presented. We find that the circuit court was not, on the face of the record, without jurisdiction to enter the order permitting Cox to proceed in this case and did not act in excess of its jurisdiction or proceed illegally in granting this permission. See State v. Nelson, supra. In this connection, it should be emphasized that, in denying petitioners’ motion to strike, the court only entered Cox’s name as attorney of record “to be associated by Mobley and Smith * * * and to assist in all phases of trying the herein cause of action.”
The narrow question presented here, then, is whether the Circuit Court of Pope County had authority to permit a nonresident attorney, not licensed to practice in Arkansas, to participate in the trial of this case in that court, representing a litigant in association with an attorney who is a resident licensed to practice, and regularly engaged in the practice of, law in this state, even though the nonresident attorney has, in similar circumstances, engaged in the trial, or preparation for trial, or settlement negotiations of numerous other cases in Arkansas. We hold that it did.
Limiting our examination to the face of the record in this proceeding does not mean that we inspect only the pleadings and the court’s order. The record in a case such as this includes such pertinent matters as the answer of Cox to petitioners’ interrogatories, admissions contained in his affidavit filed,, in the circuit court, the official docket sheet of the circuit court showing enrollment of Cox in the court and his payment of a fee of $1.00 in accordance with Ark. Stat. Ann. §§ 25-108— 110 (Repl. 1962). Where the evidence adduced is pertinent to the determination of the lower tribunal’s authority to take the action questioned, it is a part of the record. Stevenson v. McDonald, 77 Ark. 208, 91 S.W. 300; McCain v. Collins, 204 Ark. 521, 164 S.W. 2d 448.
Petitioners contend that Ark. Stat. Ann. § 25-108, et seq., insofar as- applicable here, should be construed to be only a codification of the common law admission pro hac vice, i.e., admission of a nonresident attorney for the purpose of trial of a particular case only. As such, they say, it is applicable only in an isolated instance and cannot be construed to permit such an extensive or systematic practice as Cox has conducted in Arkansas, and this court should find that, because Cox has used the statute as a cloak for an extensive unlicensed practice of law in Arkansas, he should not be permitted to proceed in this case. In the alternative, only if we cannot so find, petitioners ask that we declare Ark. Stat. Ann. § 25-108, et seq., unconstitutional as a legislative invasion of the sphere of the judicial branch and contrary to Amendment 28 of the Arkansas Constitution, as well as a violation of Article II, §§ 3 and 18, of the Arkansas Constitution and the Fourteenth Amendment to the United States Constitution. We find no basis for the relief sought by petitioners, even if we. concede that their construction of the statutes is correct, and we find no merit in their attack on the constitutionality of the statutes. In order to approach the matters raised by petitioners, we find it necessary to treat the statutes, and their status, effectiveness and function without considering each point severally.
Amendment 28 certainly put to rest for all time any possible question about the power of the courts to regulate the practice of law in the state. There can be no doubt that the power of the judicial department, acting through this court, is, in this respect, exclusive and supreme under this amendment, if the power was not already inherent in the courts. This does not mean, however, that adoption of this amendment had the effect of invalidating every act of the General Assembly bearing upon the subject, particularly those passed prior to the effective date of the amendment, if they are not necessarily in irreconcilable conflict with or repugnant to the amendment. An existing statute is superseded by a subsequent constitutional amendment only when there is an irreconcilable conflict or the statute is necessarily repugnant to the new constitutional provision. Vance v. Johnson, 238 Ark. 1009, 386 S.W. 2d 240; Priest v. Mack, 194 Ark. 788, 109 S.W. 2d 665; Polk County v. Mena Star Company, 175 Ark. 76, 298 S.W. 1002; Kirk v. High, 169 Ark. 152, 273 S.W. 289, 41 A.L.R. 782; Hodges v. Dawdy, 104 Ark. 583, 149 S.W. 656. See also, Henley v Goggin, 241 Ark. 348, 407 S.W. 2d 732; Lewelling v. Board of Directors of Mansfield School District, 240 Ark. 237, 398 S.W. 2d 665; Cone v. Garner, 175 Ark. 860, 3 S.W. 2d 1. A basic and fundamental rule applicable in consideration of the effect of both statutes and constitutional amendments is that repeal by implication is not looked upon with favor and is never allowed by the courts except where there is such an invincible repugnancy between the former and later provisions that both cannot stand together. See Lybrand v. Wafford, 174 Ark. 298, 296 S.W. 729.
Since this court has not taken any action to regulate the extension of the right of comity to a nonresident attorney, and the pertinent sections of the statute are not necessarily repugnant to Amendment No. 28, we hold that the particular sections of the statute involved are not unconstitutional, insofar as they apply to the facts in this case. Statutes which provide a penalty for unauthorized practice of law by a nonresident of the forum state have been held to be cumulative to the powers of the courts to punish. Bessemer Bar Association v. Fitzpatrick, 239 Ala. 663, 196 So. 733 (1940). It has also been said that statutes relating to the practice of law are merely in aid of, but do not supersede or detract from the power of the judicial department to define, regulate and control the practice of law, and that the legislative branch may not, in any way, hinder, interfere with, restrict or frustrate the powers of the courts. Wallace v. Wallace, 255 Ga. 102, 166 S.E. 2d 718 (1969); State v. Perkins, 138 Kan. 899, 28 P. 2d 765 (1934); Automobile Club of Missouri v. Hoffmeister, 338 S.W. 2d 348 (Mo. Ct. App. 1960); Hoffmeister v. Tod, 349 S.W. 2d 5 (Mo. 1961); Meunier v. Bernich, 170 So. 567 (La. Ct. App. 1936); State v. Barlow, 131 Neb. 294, 268 N.W. 95 (1936). See also, Clark v. Austin, 340 Mo. 467, 101 S.W. 2d 977 (1937); 7 Am. Jur. 2d 44, Attorneys at Law, § 2. The Court of Appeals for the Eighth Circuit has appropriately held that the courts may, and frequently do, honor implementing legislation, but are not bound to do so. Feldman v. State Board of Law Examiners, 438 F. 2d 699 (1971). See also, Martin v. Davis, 187 Kan. 473, 357 P. 2d 782 (1960); Meunier v. Bernich, supra.
In subsequent legislation, Act 438 of 1961 [Ark. Stat. Ann. §§ 25-215 — 217 (Repl. 1962)], the General Assembly has given specific recognition to the principle by declaring that act to be in aid of and subordinate to the right of this court to regulate and define the practice of law and to prevent and prohibit unauthorized or unlawful practice thereof by appropriate rules, orders and penalties. We seem definitely to have chosen to recognize and apply certain statutes which are not necessarily inconsisent with, or repugnant to, court rules, and do not hinder, interfere with, frustrate, pre-empt or usurp judicial powers, at least when the statutes were, at the time of enactment, clearly within the province of the legislative branch and when the courts have not acted in the particular matter covered by the statute. Arkansas Bar Assn. v. Union National Bank, 224 Ark. 48, 273 S.W. 2d 408. While the constitutionality of the act now before us was not involved in Letaw v. Smith, 223 Ark. 638, 268 S.W. 2d 3, this court applied it, as then written, as a valid statute. Upon adoption of "Rules Regulating Professional Conduct of Attorneys at Law,” April 24, 1939, soon after the adoption of Amendment 28, this court provided in Rule IX that those rules should not be deemed exclusive of, but as supplemental to, the statutes of the State of Arkansas and the Committee (now Supreme Court Committee on Professional Conduct) may invoke the statutes or proceed under those rules if it should elect to do so. We have, however, held that statutes in conflict with rules adopted by this court under authority given by Amendment 28 were superseded by the rules. Armitage v. Bar Rules Committee, 223 Ark. 465, 266 S.W. 2d 818. But, we clearly indicated that we would recognize and apply a statute making certain advertising practices unlawful with reference to the practice of law in Arkansas Bar Assn. v. Union National Bank, supra, saying:
In many jurisdictions, as in this state, the judiciary has on occasions apparently given approval to certain enactments by the legislative body, but these enactments are considered to be in aid of the judicial prerogative to regulate the practice of law and not to be in derogation thereof.
When viewed in the light of the narrow question presented here, the statute constitutes little more than a recognition of the usual practice of permitting an at torney, licensed and in good standing in a sister state, to appear and participate in the trial or argument of a particular case. The granting of such permission, without or even in spite of a statute, seems to be within the inherent power of the courts and is a rather general practice. See Freeling v. Tucker, 49 Idaho 475, 289 P. 85 (1930); State v. Perkins, 138 Kan. 899, 28 P. 2d 765 (1934); Anderson v. Coolin, 27 Idaho 334, 149 P. 286 (1915); 7 C.J.S. 723, Attorney and Client, § 15, 7 Am. Jur. 2d 48, Attorneys at Law. This practice extends comity as a courtesy, not as a right. Mason v. Pelkes, 57 Idaho 10, 59 P. 2d 1087 (1936). A lawyer who does not confine his practice to the limits of such an admission is subject to appropriate state action for unauthorized practice. Sanders v. Russell, 401 F. 2d 241 (5th Cir. 1968).
The state has legitimate interests to be weighed in considering pro hac vice admissions in order to maintain a high level of professional ethics, to assure a high quality of representation in the courts and to protect the economic interests of the regularly licensed resident attorneys of the state. In order to properly protect these interests and to expedite the administration of justice, the courts are concerned with the qualifications and conduct of counsel, their availability for service of papers and amenability to disciplinary proceedings. But these interests do not justify an arbitrary numerical limitation on the number of such appearances by an attorney in the state, where the nonresident attorney associated with resident counsel is not involved in a general practice of law, particularly where the nonresident practitioner has developed some degree of expertise in the particular field of litigation in which he is engaged. Sanders v. Russell, supra. See also, Meunier v. Bernich, 170 So. 567 (La. Ct. App. 1936); Freeling v. Tucker, supra; Hulse v. Criger, 363 Mo. 26, 247 S.W. 2d 855 (1952); 7 C.J.S. 712, Attorney and Client, § 6 a and c.
As we view the matter, § 25-108, at least as it now reads and as applied in the case before us, is not in conflict with Amendment 28 or any rule promulgated by this court. If Cox attempts to participate in other cases in reliance upon his “enrollment” in connection with this case, quite a different matter will be presented. Insofar as this case is concerned, he has complied with the terms and conditions imposed by the court in which the case is pending, and we need not consider the effect of Ark. Stat. Ann. § 25-111, if indeed it has survived the rules of this court governing admission to the bar and the 1955 amendment to Ark. Stat. Ann. § 25-108.
Not only are we unable to say that Ark. Stat. Ann. § 25-108 is unconstitutional for conflict with Amendment 28, we are also unable to say that it is invalid under either Section 3 or 18 of Article II of the Constitution of Arkansas, or the Fourteenth Amendment to the United States Constitution.
It is true that the right to practice law is a privilege in the nature of a franchise. Martin v. Davis, 187 Kan. 473, 357 P. 2d 782 (1960); State v. Perkins, 183 Kan. 899, 28 P. 2d 765 (1934); Gordon v. Clinkscales, 215 Ga. 813, 114 S.E. 2d 15 (1960); In re Bailey, 30 Ariz. 407, 248 P. 29 (1926); Freeling v. Tucker, supra; New Jersey Photo Engraving Company v. Schonert & Sons, 95 N.J. Eq. 12, 122 A. 307 (1923); In re Co-operative Law Company, 198 N.Y. 479, 92 N.E. 15, 139 A.S.R. 839 (1910). See Wernimont v. State, 101 Ark. 210, 142 S.W. 194. It is not a matter of grace. Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S. Ct. 752, 1 L. Ed. 2d 796 (1957); Raffael-li v. Committee, 7 Cal. 3d 288, 101 Cal. Rptr. 896, 496 P. 2d 1264 (1972). But it is not an absolute, natural or constitutional right. Wernimount v. State, supra; Gordon v. Clinkscales, supra; West Virginia State Bar v. Earley, 144 W. Va. 504, 109 S.E. 2d 420 (1959); In re Bailey, supra.
The right to practice in state courts is not a privilege or immunity under the Fourteenth Amendment to the United States Constitution. In re Lockwood, 154 U.S. 116, 14 S. Ct. 1082, 38 L. Ed. 929 (1894); Bradwell v. Illinois, 83 U.S. 130, 21 L. Ed. 442 (1872). See also, Starr v. State Board of Law Examiners, 159 F. 2d 305 (7th Cir. 1947); Ruckenbrod v. Mullins, 102 Utah 548, 133 P. 2d 325 (1943). It is only when there is no rational basis for denying the right or privilege to practice in a state or there is arbitrary action or invidious discrimination by state officers excluding one from the practice that the “due process” and “equal protection” clauses of the Fourteenth Amendment come into play. Schware v. Board of Bar Examiners, supra; Konigsberg v. State Bar of California, 353 U.S. 252, 1 L. Ed. 2d 810, 77 S. Ct. 722 (1957). See also, Martin v. Davis, 187 Kan. 473, 357 P. 2d 782 (1960), appeal dism. sub nom Martin v. Walton, 368 U.S. 25, 82 S. Ct. 1, 7 L. Ed. 2d 5 (1961). But it was recognized in Konigsberg, as it had always been, that states are free to determine who may practice in their courts, so long as the power to do so is not exercised in an arbitrary or discriminatory manner. See also, Feldon Saier v. State Bar of Michigan, 293 F. 2d 756 (6th Cir. 1961); Starr v. State Board of Law Examiners, 159 F. 2d 305 (7th Cir. 1947). It was acknowledged in Theard v. United States, 354 U.S. 278, 77 S. Ct. 1274, 1 L. Ed. 2d 1342 (1954), that the limits of review of state action in such matters were set in Konigs-berg and Schware, and that they were narrow. In dismissing an appeal from Martin v. Davis, supra, wherein rules requiring that a Kansas attorney who regularly practiced in another state must associate local counsel before appearing in the courts of Kansas were held not violative of the equal protection and due process clauses, the Supreme Court of the United States found a want of a substantial federal question. The court found the rules, both on their face and as applied, within the competence of the Supreme Court of Kansas and not beyond the allowable range of state action under the Fourteenth Amendment. The United States Supreme Court said that the fact that the rules may result in “incidental individual inequality” did not make them offensive to the Fourteenth Amendment. Martin v. Walton, supra. This seems to be a complete answer to petitioners’ argument that somehow nonresident attorneys, who presumably have satisfied the courts of their own states as to competence and moral qualifications, are favored in Arkansas. Whatever deficiencies exist under the statute may certainly be remedied by “terms, conditions and requirements prescribed by rulés of practice” of the individual courts, and if they are not, the rule-making power of this court may be invoked.
Since the practice of law is a profession licensed as a privilege or franchise and its members officers of the court and a necessary arm of the judicial system, it is not a natural right, the regulation of which is limited by the state constitution. See Gosnell v. State, 52 Ark. 228, 12 S.W. 392. There is certainly no indication that the statute and the action of the court in this case are in any way discriminatory and that the same rights and privileges accorded Cox thereunder would not have been accorded to all others similarly situated upon the same terms. In denying the motion to strike, the circuit judge found that it had been the custom and practice of that court to allow nonresident attorneys to be admitted for a particular case.
We find no merit in petitioners’ arguments on this point and nothing in Ark. Stat. Ann. § 25-108 or the circuit court’s action in this case which violates either the state or federal constitution.
The writ is denied.
But see, The State Bar of Texas v. Belli, 382 S.W. 2d 475 (Tex. 1964), where it was held that injunctive relief would not be granted at the suit of the state bar against an individual nonresident attorney who was not then participating or offering to participate in the trial of a case in the forum state.
But see, W. R. Wrape Stave Company v. Arkansas State Game and Fish Commission, 215 Ark. 229, 219 S.W. 2d 948, wherein it was held that since the purpose of Constitutional. Amendment 35, making the State Game and Fish Commission an independent constitutional agency of government, seemed to have been to cover the whole subject and to either provide, or leave to the commission, methods for reaching its ends, the amendment superseded all prior legislative acts, whether directive or restrictive in nature. Specific conditions precedent for suits in eminent domain by the commission were the subject of the act there held unconstitutional. Although the amendment provided that the power of eminent domain be exercised in the same manner as provided for exercise of the power of the State Highway Commission, the opinion was not premised on this specific language. Furthermore, there is no mention in the opinion of the sentence: “All laws now in effect shall continue in force until changed by the Commission.” | [
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Smith, J.
This appeal involves a contest for the nomination of the Democratic Party for the office of tax assessor in Woodruff County. On the face of the returns Prank Darmer received 630 votes and W. B. White a total of 617. Three other contestants for this office received a scattering vote, the total of all of these being less than the vote received by either Darmer or White.
White demanded a recount by the central committee, and in due time filed a contest containing numerous allegations of fraud. and illegal voting, to his prejudice. He also alleged that a correct count of the votes oast would show that he had received a' plurality off the votes.
A recount of the ballots cast was had, presumably under the order of the court in which the contest was pending, and as each precinct was counted a stipulation was entered into and signed by the parties showing the result of the recount. A tabulation of the figures disclosed by these stipulations shows that Darmer received 619 votes and White 624 votes, so that White, and not Darmer, bad received a plurality of tbe votes as shown by tbe ballots which bad been returned by the election officers as tbe ballots cast in tbe election.
Upon calling tbe case for trial Darmer filed a motion to- dismiss tbe complaint, for tbe reason that tbe collector of taxes did not at any time prepare and file with tbe county clerk a certified list of poll taxpayers as required by § 3740, CL & M. Digest. Counsel for White conceded tbe truth of tbe allegation of this motion, but stated that be was standing on tbe recount, and not on tbe certified list, and that be bad some testimony to offer. Whereupon tbe court ruled as follows: “I am going to- sustain tbe motion as to tbe list, -but I am going to refuse to dismiss tbe cause, because counsel announces that be has other proof which be wishes to offer, which be stands upon, other than tbe alleged certified list.”
Tbe court then permitted counsel for White to offer in evidence tbe stipulations, which, as has been stated, show that White bad received a plurality of tbe votes as shown by tbe -ballots which bad been duly returned by tbe election officers. Objection was made a-s each stipulation was read into tbe record, and exceptions were saved to tbe action of tbe court in admitting them in evidence. After this evidence bad been admitted, tbe court asked counsel for Darmer if be wished to offer any testimony, but none was offered, whereupon tbe court found that, prima facie, White was tbe nominee, and judgment was rendered to that effect.
It was held by a majority of tbe court in tbe case of Brown v. Nisler, 179 Ark. 178, 15 S. W. (2d) 314, (to quote a head-note), that: “In an election contest by one claiming to be tbe rightful nominee, basing bis claim almost entirely on tbe printed list of- voters furnished to tbe election judges, bis complaint was properly dismissed where the printed list was invalid Ifior want of substantial compliance with 'Crawford & Moses’ Digest, § 3740,” and that bolding was adhered to in tbe opinion banded down today in tbe case of Cain v. McGregor. But the ruling of the court below on this question conformed to the ruling in the case of Brown v. Nisler, supra.
It does not follow, however, and we have never held, that there can be no contest of an election where § 3740', C. & M. Digest was not complied with.
When this section has been complied with, and the collector has furnished a list of persons who have paid their poll tax, authenticated 'by the collector’s affidavit, and the county clerk has recorded this list, .and has furnished a certified copy thereof to the election commissioners, who have caused the list to be printed, and copies of the list so printed have been furnished to the judges of the election, a prima facie evidence of the right to vote has been supplied. But the failure of the collector to perform his duty in this behalf, or the omission to print the name of an elector who has paid his poll tax, does not exclude the elector from voting who is otherwise qualified to do- so. The case of Brown v. Nisler, supra, reviews the statute (§ 3777, C. & M. Digest) declaring what evidence may be offered of one’s right to vote, whether his name appears upon the printed list or not, or whether that list has been authenticated by the collector or not.
There was no showing whether the electors had complied with the provisions of ’§ 3777, -C. & M. Digest, upon the failure of the collector to comply with § 3740.
The effect of appellant Danmer’s contention is that he is the nominee, not because he received the plurality of the votes cast, but because all the votes were illegal. According to the undisputed testimony, Darmer did not receive the plurality df the votes as evidenced by the ballots returned by the election officers, and there was no testimony showing what number, if any, of the electors were not qualified to vote. The testimony showed only that neither party was entitled to rely on the printed list of the electors, for the reason that it had not been certified as required by § 3740, O. & M. Digest. But this fact did not invalidate the election nor prevent a contest of it. Enough testimony was offered to make a prima facie showing that White had received the plurality of the votes cast at the election, and no testimony was offered to the contrary, nor was any testimony offered that any of the electors had voted illegally.
The court therefore properly declared White the nominee, and the judgment to that effect must be affirmed, and it is so ordered. | [
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Robert H. Dudley, Justice.
Appellant, the owner of P.D.Q. Pawnshop in North Little Rock, filed suit in chancery court seeking injunctive and declaratory relief from the enforcement against her of Act 87 of 1981, codified as Ark. Stat. Ann. §§ 71-5401 — 71-5408, and North Little Rock Ordinance 5369. The act and ordinance regulate the purchasing for resale of precious metals or stones and require licensing, fees and record keeping. Appellant contends that her business does not come within the purview of the act or ordinance, that she should not be required to comply with them, and that she received a letter threatening prosecution under the penal provisions of the act and ordinance for her failure to comply.
The trial court in its decree recited that it had considered the matter on the pleadings, the testimony and evidence presented, the briefs and the argument of counsel. It found that pawnbrokers are included in Act 87 of 1981 and North Little Rock Ordinance No. 5369, that the business operation conducted by appellant is within the purview of the act and ordinance and that appellant must follow the requirements of the act. The trial court denied appellant’s request for a permanent injunction, and it is from this order appellant appeals. Jurisdiction is in this Court pursuant to Rule 29 (1) (c).
The burden was on appellant to bring up a record sufficient to show that the trial court was wrong. Armbrust v. Henry, 263 Ark. 98, 562 S.W.2d 598 (1978); A.R.A.P. 6 (b). No testimony and none of the evidence relied upon below have been included in the record. The record before us consists merely of briefs and pleadings. Appellant refers to a stipulation of facts introduced below, but none appears in the record. The answer filed by appellee denies the following: (1) that appellant has paid all privilege taxes or license fees, (2) that appellant is not in the business of buying precious metals for resale and (3) that threats of arrest were made. The answer admits that the statute and ordinance exist. Therefore, the answer admits no facts material to the basis of this appeal.
In Armbrust v. Henry, supra, we emphasized that an appellate court must presume that the missing testimony in a record on appeal supports the finding of the lower court. See also, Phillips v. Arkansas Real Estate Com’n., 244 Ark. 577, 426 S.W.2d 412 (1968). Without the benefit of the evidence from which the trial court made its findings, an affirmance of the trial court is imperative.
Affirmed.
Purtle, J., dissents. | [
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George Rose Smith, Justice.
This suit was brought by the appellants, as citizens and taxpayers, to obtain a declaratory judgment holding that the appellee, Steve Clark, is in violation of Article 6, Section 22, of the Constitution of Arkansas as long as he serves as attorney general and simultaneously holds a commission as a captain in the United States Army Reserve. (By an amended pleading the plaintiffs sought alternative relief in quo warranto, but we need not explore that avenue.) The appellee raises assorted defenses to the suit: That the plaintiffs lacked standing to sue, that a declaratory judgment is not appropriate, that there is in fact no violation of Article 6, Section 22, and that if there is such a violation then Section 22 is void under two clauses of the United States Constitution.
The pertinent facts were established at a brief trial. In 1968 Mr. Clark was appointed by the President of the United States as “a Reserve Commissioned Officer in the Army of the United States.” Mr. Clark then went to law school. After that he served several tours of active duty as a reserve officer before entering the practice of law in 1976. As a reserve officer he still attends a monthly drill assembly and a two-week period of summer training, for which he is paid by the United States. He was elected attorney general in 1978 and was serving in his second term when this case was tried. He has since been elected to a third term.
The circuit judge recognized the plaintiffs’ standing to bring this suit, but he held that, procedurally, a declaratory judgment would not settle the controversy and, substantively, no violation of Article 6, Section 22, exists. We disagree with both his conclusions.
Procedurally, the taxpayers’ complaint asserts that it is filed under Article 16, Section 13, of our constitution, which provides that any citizen may bring suit to protect the public against the enforcement of illegal exactions. In a similar situation involving dual office-holding we decided that under this constitutional provision complaining taxpayers are entitled to injunctive relief against the illegal spending of public funds. Starnes v. Sadler, 237 Ark. 325, 372 S.W.2d 585 (1963). That suit for an injunction was properly in the chancery court, but the constitution does not specify the court in which the taxpayer’s cause of action may be asserted nor the form of action that is available to him. When, as here, there will be an established illegal exaction if the public officer persists in a constitutional violation, an action in the circuit court for a declaratory judgment is well chosen. A declaratory judgment is “a remedy peculiarly appropriate to controversies between private citizens and public officials about the meaning of statutes.” Culp v. Scurlock, 225 Ark. 749, 284 S.W.2d 851 (1955). That statement applies equally to controversies about the interpretation of the constitution. Moreover, as we went on to say in Culp: “Since the effect of a declaratory judgment in this case will be to terminate an actual controversy in a matter of public interest, it is manifestly desirable that the case be decided on its merits.” Here too that is true.
Substantively, the language of Article 6, Section 22, is too simple, too clear, too pointed, to be misunderstood:
The Treasurer of State, Secretary of State, Auditor ■ of State and Attorney General shall perform such duties as may be prescribed by law; they shall not hold any . other office or commission, civil or military, in this State or under any State, or the United States, or any other power, at one and the same time ....
Here Mr. Clark seeks to hold at one and the same time the office of attorney general and a military commission under the United States. There could be no more clear-cut violation of the constitutional prohibition, if it stood alone. There must also be considered, however, the language of Article 19, Section 26:
Militia officers, officers of the public schools and notaries may be elected to fill any executive or judicial office.
The question is, does the reference to “militia officers” include a United States army reserve officer, who is appointed by the president and is not subject to any control by the State of Arkansas? The answer must be, No. The first significant reference to the militia is in the United States Constitution, Article 1, Section 8, which declares that Congress shall have the power:
To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers .... [Our italics.]
By the explicit language of the Constitution the president cannot appoint an officer of the militia. Mr. Clark’s presidential appointment therefore did not make him an officer of the militia.
Additionally, Article 6, Section 6, of our own constitution makes the governor the commander-in-chief of the state’s military forces, except when in federal service. Article 11, Section 1, defines the militia as consisting of all able-bodied male residents of the state between the ages of 18 and 45. The implementing statutes distinguish between the organized militia (the National Guard) and the unorganized militia (the other specified resident males). Ark. Stat. Ann. § 11-102 (Repl. 1976). Neither category embraces the United States army reserve. Thus both the United States Constitution and the Arkansas Constitution compel the conclusion that Mr. Clark is not a militia officer as contemplated by Article 19, Section 26. (We do not reach the appellants’ argument that the statement in that section that militia officers “may be elected” to any executive or judicial office means that they as candidates may be elected but cannot serve without relinquishing their office in the militia.)
Finally, there is no substance to the appellee’s argument that Section 22 of Article 6 violates the United States Constitution. Since the militia is ordinarily an arm of the state government, the state may without any denial of the equal protection of the laws permit a militia officer to seek or hold an elective office while denying that privilege to an officer whose allegience is to some other sovereign. Such a classification is manifestly reasonable. Moreover, Mr. Clark voluntarily sought the office of attorney general, as defined by the constitution, and is not in a position to accept the benefits of the office and at the same time disclaim its restrictions. See Johnson v. Darnell, 220 Ark. 625, 249 S. W.2d 5 (1952). The argument that the limitation upon the four constitutional officers impairs the nation’s ability to wage war is not of sufficient merit to call for discussion.
This opinion will serve as a judgment declaring the law. The trial court’s judgment is reversed, and the cause is remanded for any further proceedings that may be appropriate if the declared violation of the constitution continues.
Reversed and remanded.
Adkisson, C.J., dissents. | [
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Steele Hays, Justice.
Appellees, Terry and Nancy Hill, are residents of the Little Rock School District and are the parents of Andrew and Margaret Hill, ages eight and twelve. Mrs. Hill is a high school English teacher in the Bryant School District. Appellants are the Bryant School District, members of the school board and the superintendent.
Relying on Act 624 of 1987, appellees applied to the district to enroll Andrew and Margaret Hill to attend elementary school in the district. The applications were denied and appellees filed this action for declaratory and injunctive relief. The chancellor granted a temporary order for the children to attend school in Bryant pending a final adjudication. The appellants filed a counter-claim challenging the constitutionality of Act 624 and after a trial on the merits the chancellor granted the relief sought by the appellees. Appellants have appealed and we affirm.
Appellants argue that Act 624, codified as Ark. Code Ann. § 6-18-203(b) (Supp. 1987), is unconstitutional in that it violates the equal protection clause of the United States Constitution and is a grant of privileges to one class of citizens not equally belonging to all citizens. Arkansas Constitution, Article II, Section 18.
Section 6-18-203 (b) reads:
The children or wards of any person who is a public school teacher in one school district in this state and a resident of another school district shall be entitled to be enrolled in and to attend school in either the district in which the parent or guardian resides or the district in which the parent or guardian is a public school teacher.
Appellants contend there is no rational basis for this legislative enactment. They maintain that teachers are not entitled to greater convenience in arranging school attendance for their children than other working households and that the Bryant School District is already burdened by incessant annual growth of its enrollment. The arguments are not well taken and cannot be sustained under-the law.
Where the constitutionality of legislative enactments is the issue the law places upon the challenger the burden of proving the act unconstitutional. Citizen’s Bank of Batesville v. Estate of Pettyjohn, 282 Ark. 222, 667 S.W.2d 657 (1987). There is a presumption of constitutionality attendant to every legislative enactment and all doubt concerning it must be resolved in favor of constitutionality. Stone v. Stone, 254 Ark. 1011, 498 S.W.2d 634 (1973). If it is possible to construe an act so that it will pass the test of constitutionality, the courts not only may, but should and will, do so. Davis v. Schimmel, 252 Ark. 1201, 482 S.W.2d 785 (1972).
We do not judge the wisdom of the produce of the legislative branch, “our task is merely to consider if any rational basis exists which demonstrates the possibility of a deliberate nexus with state objectives so that the legislation is not the product of utterly arbitrary and capricious government and void of any hint of deliberate and lawful purpose . . .” [Straight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983)].
Judged in that light, we have no doubt but that this legislation rests upon a rational basis. That which might facilitate a teacher’s transportation of his or her children, or enables them to be nearer to the teacher, or to each other, during school hours, may well be deemed useful in alleviating problems which might otherwise distract a teacher, or necessitate his or her withdrawal from active teaching.
The argument that this legislation simply adds enrollment to an already burgeoning school district does not address itself to this branch of government, but to the legislative branch. It is not our place to pass on the need for, or the prudence of, legislation. Our review is limited to its constitutionality.
Appellants also argue that the trial court erred in failing to recognize a conflict between Ark. Code Ann. § 6-18-203 (b) (Supp. 1987) and § 6-18-317 (Supp. 1987), and in failing to find the district is prohibited from enrolling the Hill children under § 6-18-317 (Supp. 1987), which reads:
(a) Board of Directors of local school districts are prohibited from granting legal transfers in the following situations:
(1) Where either the resident or the receiving district is under a desegregation-related court order or has ever been under such a court order; and
(2) The transfer in question would negatively affect the racial balance of that district which is or has been under such a court order. . . .”
Appellants point out that the chancellor took judicial notice of the fact that the Little Rock School District is involved in continuing litigation which is “desegregation-related” and the transfer of these children would negatively affect the racial balance of the Little Rock School District. They argue that the statutes are in direct conflict and the racial balance of the Little Rock district is of greater public importance than insuring that children of teachers are enrolled where a parent or parents are teaching.
We need not decide which of these considerations is dominant, as we have not been persuaded that the provisions cannot be reconciled — a necessary prerequisite, because we are obliged to harmonize these statutes so as to give effect to both if it is possible to do so. Cummings v. Washington County Election Commission, 291 Ark. 354, 234 S.W.2d 486 (1987); Bolden v. Watt, 290 Ark. 343, 719 S.W.2d 428 (1986). This is especially true when the two enactments are adopted at the same session of the legislature, as these were. Sargent v. Cole, 269 Ark. 121, 598 S.W.2d 749 (1980).
Appellees point out that the Hill children are not “transferring” from one district to another as that word is ordinarily understood, but are availing themselves of a statutorily created right to enroll in the first instance in the district where one of their parents teaches. The making of a choice created by the statute does not result in a “transfer” as contemplated by § 6-18-317 (Supp. 1987). The prohibition of subsection 317 is against “legal transfers,” dealt with generally in subsection 306, which provides for petitioning to attend school in a non-resident district, requiring the approval of both the sending and the receiving district. Newark School District v. Cord-Charlotte School District, 278 Ark. 110, 644 S.W.2d 110 (1983). The legislature did not use the term “legal transfer” in § 6-18-203(b) (Supp. 1987), but referred to “enrolling” in the district where the parent teaches. There is no suggestion in the latter section that the legislature intended this process to be comparable to “legal transfer.” We find, therefore, that these statutes are not Irreconcilable.
Finding no error, we affirm the judgment. | [
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Kirby, J.
This appeal is prosecuted from a decree of the chancery court refusing injunctive relief against the construction and operation of the Boys’ Club on the corner of Eighth and Scott streets in the city of Little Bock, and dismissing appellant’s complaint for want of equity.
It appears from the testimony that appellant, the owner of a house and lot in the middle of the 'block opposite the site of the Little Bock Boys’ Club at Eighth and Scott, brought suit to enjoin the erection of a new ■building on the said site, alleging that the erection thereof would constitute a nuisance and decréase the value of appellant’s property and that the continued use of the building and ground as a Boys’ Club would also constitute a nuisance.
The site originally belonged to the Concordia Club, a social organization for Jewish people, and it has been used as a club for boys since 1925, when the Concordia Club was purchased with money raised from public subscription for use as a Boys’ Club. The club building was destroyed by fire in December, 1929, and in June, 1930, the citizens of the city of Little Book subscribed $140,000 for rebuilding and equipping the club.
The new building is to be erected on the site formerly occupied by the old building, and is to be of the same general size. The front will extend across the two lots on the corner, and the building will extend back about 95 feet on East 8th Street.
The property of appellant, a one-story cottage, is on the west side of Scott Street about the middle of the block located immediately in the rear of the First Presbyterian Church. The only other residence on that side-on that block is a two-story house on the southeast corner of the block. The only other buildings on the half block with the club site are a filling station on the southwest corner of the block at 9th and Scott and an apartment house immediately behind the proposed club building fronting on East 8th Street. Across the street towards the city north on the same side of the street as the club building is the Second 'Baptist Church, an apartment house and the Albert Pike Hotel, while on the west side of the street between 7th Street and 8th Street is the Consistory.
There was much testimony introduced tending to show the membership of the club, the noise incident to its operation before its destruction by fire, plaintiff stating that the condition was intolerable, the boys comprising its membership being mostly those of the under-privileged classes, who were controlled only by one official, the club being in operation at all times of the day and until late in the night except on Sundays; that wrestling matches, picture shows and prize fights were staged for the benefit and entertainment of the members of the club, with all the noises usually incident to and accompanying such entertainments.
The pastor of the Baptist Church testified that at times the noise made by the club members was so great as to disturb the religious services in his church on the opposite corner, but that usually the disturbance was eliminated and quiet restored upon a request sent over to the club.
Some witnesses testified that the value of the property as a residential district would be decreased in value because of the club, while other witnesses testified that the property was no longer a residential district, and would be enhanced in value because of the construction of the beautiful modern club building thereon.
It may be said that much testimony tended strongly to show that the club, as it has been operated, was not free from just criticism that it was disturbing to the residents of the immediate neighborhood and constituted on that account a nuisance, but there was also testimony to the contrary that the noises were not so great and con-. tinuous because of the operation of the club as would create an intolerable condition to any resident of the neighborhood entitling him to injunctive relief. No effort was made, however, to show that the club could not be properly operated in furtherance of the purpose of its establishment in such a manner as to fulfill its purpose without becoming a nuisance as to the residents in the vicinity.
The erection of the building itself could not constitute a nuisance under the circumstances of this case, and it is not insisted that it could be, but only that, as erected and operated as formerly, it would constitute such a nuisance. In any event, therefore, the erection of the building could not constitute a nuisance per se entitling appellant to an injunction prohibiting its construction. In Lonoke v. C. R. I. & P. Ry. Co., 92 Ark. 546, 123 S. W. 395, 135 Am. St. Rep. 200, this court said: “The act done or the structure erected may be a nuisance per se, or the act or use of the property may become a nuisance by reason of the circumstances or location or surroundings. In the one case the thing becomes a nuisance as a matter of law; in the other it must be proved by evidence to be such under the law.” This statement was again made in the case of Swaim v. Morris, 93 Ark. 362, 125 S. W. 432, 20 Ann. Cas. 930, where the court held a municipal ordinance declaring and prohibiting the erection of cotton gins as a nuisance per se was invalid and too broad, quoting the definition in Cyc. of a nuisance per se: “A nuisance at law or a nuisance per se is an act, occupation or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings.” 29 Cyc. 1153. See also 46 C. J. 648, § 5. It was there said also (quoting syllabus) : “Where an injunction is sought merely on the ground that a lawful erection will be put to a use that will constitute a nuisance, the court will ordinarily refuse to restrain the construction or completion of the erection, leaving the complainant free to assert his rights thereafter in an appropriate manner if the contemplated use results in a nuisance.”
The district in which the club is located is certainly no longer an exclusively residential district, but is in a state of transition from residential to a business district, if it has not already ceased altogether to be a residential district, which the testimony shows it to have done in so far as the erection of any new residences therein. In Fentress v. Sicard, 181 Ark. 173, 25 S. W. (2d) 18, the court held the erection of a mortuary or undertaking establishment in the district which was in a state of transition from an exclusively residential district to a business district was not a nuisance which should be prevented or suppressed by injunction, where it would not by its location decrease the value of surrounding property or impair or destroy the health and comfort of the residents of the vicinity. In Murphy v. Cupp, ante p. 334, the court held that the erection of a tabernacle for public worship, an annex to a chnrch building already established, and the use to which it would be put would not cause any unusual annoyance or inconvenience to the residents of the neighborhood and denied injunctive relief against the erection of the building. It was there said: “The rule is well settled that no injunction will be issued in advance of the construction of the structure unless it be certain that the same will constitute a nuisance. ’ ’ The following statement from 'Oyc. was also quoted there: “Where the claim to relief is 'based upon the use which is to be made of a lawful erection, the court will ordinarily refuse to enjoin the construction or com-, pletion of the erection; and in such case the defendant, if he proceeds, does so at his peril and is liable to an injunction or an action of damages if such use results in a nuisance. If a building of itself will be a nuisance, its erection may, of course, be enjoined.” '21 Cyc. 208.
Under the circumstances of this case and the principles of law as already announced in the decisions of this court, no such showing was made to entitle appellant to an injunction against the construction of the building for the use and operation of the Boys’ Club on the ground of anticipating a nuisance therefrom, where it would not necessarily be a nuisance, but might become such under some circumstances.
The decree is accordingly affirmed. | [
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Darrell Hickman, Justice.
The question in this case is one of computing time. The trial judge held that after the appellant took a voluntary nonsuit, he did not refile his complaint within the time required by law. We find a uniform rule which we apply to such situations dictates that the suit was timely.
The facts are undisputed. The appellant sued Wal-Mart and its local store manager Benny Cash on a slip and fall case in 1983. On May 8,1986, the appellant took a voluntary nonsuit. On May 8,1987, he refiled the suit against Wal-Mart but substituted Kirk Ward as a defendant in place of Benny Cash.
The statute in question, Ark. Code Ann. § 16-56-126 (1987), states the appellant had one year within which to refile his action. The trial judge granted Wal-Mart’s motion for summary judgment and held the complaint was filed one day late. (It is not disputed that Ward could not be included in the latter suit.)
The general rule in calculating a limitations period is to exclude the first day from the computation. Peay v. Pulaski County, 103 Ark. 601, 148 S.W. 491 (1912). We have applied that rule with considerable consistency. State ex rel. Hebert v. Hall, 228 Ark. 500, 308 S.W.2d 828 (1958) (where governor must veto bill within five days of receiving it, day of receipt is excluded); Chavis v. Pridgeon, 207 Ark. 281, 180 S.W.2d 320 (1944) (where notice of appeal to circuit court must be given within 30 days, exclude day on which lower court judgment was rendered); Matthews v. Warfield, 201 Ark. 296, 144 S.W.2d 22 (1940) (where election must be contested within ten days exclude day on which results are certified); Shanks v. Clark, 175 Ark. 883, 300 S.W. 453 (1927) (five-year limitation period for recovery on a note begins to run the day after the note is due).
This rule' is referred to in our statutes and rules of civil procedure. Ark. Code Ann. § 16-55-119 (1987) provides:
Where a certain number of days are required to intervene between two (2) acts, the day of one (1) only of the acts may be counted.
ARCP 6(a) provides:
In computing any period of time prescribed or allowed by these rules, by order of the Court, or by any applicable statute, the day of the act, event or default from which the designated period of time begins' to run shall not be included.
The appellee argues that in the case of Wheeler v. Wallingsford, 229 Ark. 576, 317 S.W.2d 153 (1958), we departed from this general rule. That case is distinguishable because the question before us now was not before the court in Wheeler, also, Rule 6(a) was not in force at that time.
A court should try to achieve uniformity in its decisions and this is an area in which we can easily do so. Rule 6(a) should govern. The day on which a nonsuit is taken should be excluded from computation.
Reversed and remanded. | [
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Robert H. Dudley, Justice.
This child custody case was certified by the court of appeals to us to decide whether a chancery court can award custody of a child to a stepparent, rather than to a natural parent. We hold that a chancellor may award custody to a stepparent, but reverse the decision doing so in this particular case.
The stepchild in this case, Ryan, was only three months old when his mother, appellant, and stepfather, appellee, were married. He was about five years old at the time the parties were divorced. In the divorce decree, entered on February 5,1987, the chancellor awarded custody of Ryan to his mother, appellant, with a right of reasonable visitation in the appellee. Only three weeks later, on February 27, the appellant, mother, filed a petition for modification of the decree on an unrelated matter. The appellee, stepfather, filed a counter-petition requesting modification of the decree with respect to Ryan. On September 29, 1987, a little over six months after the original decree, the chancellor ruled on the merits of the petitions and ordered that split custody of Ryan be placed in appellant and appellee. That is, the appellant and appellee each were awarded custody on an alternating-week basis. In his findings of fact, the chancellor found that the appellee was the only father that Ryan had ever had and that appellee treated Ryan as his own child. Further, and more significantly, the chancellor found that both parties were “fit and proper to have custody.”
Almost all of the law in Arkansas regarding custody of children is common law. We have only one statute on custody, and it provides that the award shall be made solely on the basis of the welfare and best interests of the child and must be made without regard to the sex of the parent. Ark. Code Ann. § 9-13-101 (1987). The statute makes no reference to whom custody may be awarded. However, under our case law it is clear that a stepparent can be awarded custody of a minor child. See, e.g., Goins v. Edens, 239 Ark. 718, 394 S.W.2d 124 (1965). Nevertheless, our case law specifically establishes a preference for natural parents in custody matters, and provides that the preference must prevail unless it is established that the natural parent is unfit. Goins v. Edens, supra; Hancock v. Hancock, 198 Ark. 652, 130 S.W.2d 1 (1939); Loewe v. Shook, 171 Ark. 475, 284 S.W. 726 (1926). The court of appeals followed this preference in a case very similar to the one at bar. McKee v. Bates, 10 Ark. App. 51, 661 S.W.2d 415 (1983). The preference is based on the child’s best interests.
Here, the chancellor specifically found that the appellant mother was a fit and proper person for custody. Our de novo review of the record sustains that finding. Therefore, custody of Ryan should have been left in the appellant, and it was error for the court to rule otherwise. It makes no difference that split custody, rather than full custody, was awarded.
The appellant next argues that the chancellor erred in changing Ryan’s last name to Rawlins. This argument is without merit. The appellee did not ask, either by written pleading or oral request, that Ryan’s name be changed. Yet, in his findings of fact the chancellor found that Ryan’s surname should be changed. The appellant first argues that the procedure was erroneous. The appellant was cross-examined by the appellee’s attorney on the issue of the child’s surname, and the chancellor personally asked the appellant a series of seven questions about the names. The appellant should have informally been on notice that the court was considering changing Ryan’s last name. ARCP Rule 15 provides in material part: “When issues not raised by the pleadings are tried by . . . implied consent of the parties, they shall be treated ... as if they had been raised in the plead ings. . . .” The issue seems to be fully developed, and we see no unfair prejudice to appellant in the matter. Finally, the ruling is in the best interest of Ryan.
Next, appellant argues that the name change was not in compliance with Ark. Code Ann. § 9-2-101 (1987), the statute setting out the formal procedure for a name change. It is true that the name change was not in compliance with the statute, but it was still a perfectly valid procedure. As we explained in Clinton v. Morrow, 220 Ark. 377, 247 S.W.2d 1015 (1952), and Carroll v. Johnson, 263 Ark. 280, 565 S.W.2d 10 (1978), this statute does not repeal the common law power of a chancery court to change a minor’s name when it is in the best interest of the minor to so do. The statute simply affords an additional method of effecting a name change and is supplementary to the common law. Further, this is a matter in which the chancellor has broad discretion. Clinton v. Morrow, supra.
Here, the chancellor, in his findings of fact, stated: “I am not at all impressed by the fact that Ryan is being known as someone else. Again being made to feel different.” Further, the chancellor found that appellee Rawlins was the only father Ryan had ever known and that appellee treated Ryan as his own. Under these circumstances, we cannot say the chancellor abused his broad discretion in ordering the name change on Ryan’s school records. We do note, however, that the procedure used may have violated the biological father’s right to notice and due process. See Carroll v. Johnson, 263 Ark. 280, 565 S.W.2d 10 (1978).
In addition to the custody dispute over the stepson, Ryan, there was a custody dispute over Tara, a biological child of the parties. In the original decree of divorce, granted February 5, 1987, the chancellor awarded custody of Tara to the appellant. On December 22, 1987, he made a change in the award. The appellant now argues that there was no material change in circumstances between the two decrees and, therefore, the chancellor erred in changing custody.
Our law on the subject is clear. A judicial award of custody should not be modified unless it is shown that there are changed conditions which demonstrate that a modification of the decree is in the best interest of the child. Feight v. Feight, 253 Ark. 950, 490 S.W.2d 140 (1973). The only other time a change is permissible is when there is a showing of facts affecting the best interest of the child that were either not presented to the chancellor or were not known by the chancellor at the time the original custody order was entered. Henkell v. Henkell, 224 Ark. 366, 273 S.W.2d 402 (1954).
The chancellor did not make a finding of fact aboút a change in circumstances. However, our de novo review of the record reveals that there was sufficient evidence from which the chancellor could have found a change in circumstances after the initial decree. It includes testimony that the appellant screamed and yelled at the appellee in front of Tara; that appellant telephoned the appellee numerous times while appellee was attempting to visit Tara; that Tara was dirty when appellee picked her up; that she had an infected ear and a dirty scalp; that on four separate occasions she had bruises on her lower body, which could have been caused by appellant’s use of excessive force; that appellant forced Tara to eat in the garage on at least one occasion, and that when Tara rang the doorbell and asked for a glass of water she was spanked; and finally, that Tara wanted to live with appellee, and when told she had to go home with appellant, she suffered stomach problems.
The foregoing is sufficient to show a change in circumstances, therefore, the chancellor did not err in modifying the decree.
Affirmed in part; reversed in part; and remanded for entry of a decree consistent with this opinion.
Hickman, J., dissents.
Glaze, J., concurs in part and dissents in part. | [
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Butler, J.
-Suit was brought in the Arkansas Chancery Court, Northern District, by the receivers of Farelly Lake Levee District of Jefferson and Arkansas counties for the purpose of enforcing the collection of taxes delinquent on the lands in said district for the years 19'28 and 1929, in which suit the Felger Timber Company, Inc., intervened alleging that it was the owner of the standing timber on certain lands described amounting to 4,300 acres, but was not the owner of the fee; that the timber had been separately assessed for taxation, is being taxed as personal property, was not liable for levee taxes sought to be collected, and prayed that the plaintiffs be restrained from collecting taxes upon the tirqber.
The ease was heard upon the pleadings/ record evidence and the testimony of witnesses. The trial court rendered judgment sustaining’ the prayer of the intervener and enjoining plaintiffs from further proceeding against the timber on the lands described in the intervention. From that judgment is this appeal.
1. Previous to the creation of the levee district and the erection by it of its levees, these lands were subject to recurrent inundation from the waters of the Bayou Meto and the Arkansas Biver, so that the lands had little value. It was difficult to remove timber therefrom because of the frequency of the overflows, the lands remaining soft and boggy for a considerable period of time after the subsidance of the waters. Since the completion of the levees, the lands when put in cultivation, have become very valuable for agricultural purposes—as valuable as any within the levee district. The lands are covered with a good growth of merchantable timber, principally oak and hickory with some cypress and ash. At the time the evidence was taken in this case this timber was estimated to be worth $20 per acre. The evidence was to the effect that the levee district had been formed for the primary purpose of eliminating the overflows so as to render the lands fit for agricultural purposes, the ultimate purpose being to convert them into farms. The estimated benefits were placed at $28 per acre, the assessments amounting annually to about $1.25 per acre.
2. With reference to the relation of the intervener, the facts are that the levee district was extended to include the Felger lands in 1917, which lands at that time had been owned by the Felger family for a number of years. The title was in Bertha S. Felger in May, 1928, when, for a nominal consideration, she conveyed the timber thereon of every character and description including its growth for a period of fifty years, in which time it might be removed, to Earl H. Felger, as trustee, giving to the grante'e the right to erect thereon houses, railroads, and all other improvements deemed necessary, stipulating that such improvements should be personalty with the right of removal within a reasonable time after the expiration of the time given for the cutting of the timber. Earl H. Felger was the son of Bertha S. Felger. On or before the execution of the timber deed a corporation was organized under the laws of the State of Delaware, the capital stock of which was owned by the Felger family except ten shares owned by four other persons, the said Earl H. Felger being the president and Bertha S. Felger the secretary of such corporation. Contemporaneous with the execution of the timber deed aforesaid to Earl H. Felger,- as trustee, he conveyed the timber on the same lands for a nominal consideration to the corporation, intervener in this action, the terms of the convejmnces being identical.
' Mrs. Felger had been the owner of the lands from before the formation of the levee district, and, as this suit was brought only for the delinquent assessments for the years 1928 and 1929, we infer she had regularly paid all the yearly assessments on the benefits assessed against her lands and until the improvement was completed and her lands freed from overflow. Then, for a nominal consideration, she conveyed, not, as is customary, certain species of trees or such as was merchantable, or for a timé limit reasonably necessary within which the timber might be removed, as in the'case of Dover Lumber Co. v. Board, etc., 173 N. C. 117, 91 S. E. 714, cited -by appellee, but the conveyance was for all the standing timber of every kind and character regardless of its size “with the growth of said timber” for and during a period of fifty years in which time the grantee might remove the timber. That grantee is a corporation whose entire property consists of the timber here involved and whose corporate stock, except a nominal number of no par value shares, is owned by the Felger family. The president of this corporation is Mrs. Felger’s son and its secretary herself.
So long as the timber remains uncut, the soil can have no value except that of the growth of the standing timber. As this is the case, and if, as contended by the appellee, the timber could not be subjected to any part of the payment of the annual assessments of benefits, then, as stated by the appellant, “no human being would be foolish enough to pay State, county and school taxes and also the levee assessment and get nothing in return for a period of fifty years.” Since it is not likely that any one would pay the taxes, the necessary result to the other landowners in the district would be an additional burden placed upon their lands and an increase in the amount of their assessments.
3. The appellee relies in this case on the force of act No. 146 of the Acts of 1905 which provides that “hereafter all timber in this State which has been sold separately and apart from the land on which it stands shall be classed as personal property and shall be subject to taxation as such,” and insists that, since it has paid the general taxes assessed against the timber as personal property, it is not subject to taxation for local benefits, as only such benefits can be assessed against lands in the territory - affected, and that, when the act creating’ the levee district used the word “land,” it meant the taxable real estate in the district as defined by the revenue law and as the same appears on the tax books.
A number of decisions of this court are cited by the appellee in support of this contention which we have examined and considered. Typical of these cases is that of St. L. S. W. Ry. Co. v. Levee District, 81 Ark. 562, 99 S. W. 843, a review of which will be sufficient to illustrate the character of the cases relied upon. That was a case where the roadbed and right-of-way of the railway was included in the assessment of benefits for the construction of a levee. Among other things, it is there contended that the assessment of the railroad tracks was invalid because it included the ties, angle bars and rails which were claimed to be personal property and as such exempt from taxation for local improvements. The court held these were a part of the roadbed and, for purposes of taxation, by virtue of our statute, was real estate. In Ft. Smith L. & T. R. Co. v. McDonough, 119 Ark. 258, 177 S. W. 926-7, the court said: “It must readily be conceded, and it is conceded by appellee, that taxation for local improvement must be confined to real estate to be benefited by the proposed improvement. Personal property is not subject to taxation for the purpose, nor was it attempted in the enactment of the statute under consideration to tax personalty. The statute expressly provides that real estate only shall be assessed, but in effect declares that railroads, tramroads, etc., shall be deemed to be real estate within the. meaning of the statute. It is doubtless within the power of the Legislature to classify property of doubtful character as real estate for the purpose of making it subject to assessment for local improvements. The statutes of this 'State provide that the tracks and right-of-way of railroads shall be real estate for the purpose of taxation and we have held that that classification makes property of that kind subject to special taxation for local improvement. ’ ’ In that case the court held that a street railway was not real estate.
Appellee also relies on the case of Anderson Tully Co. v. Gillett Lumber Co., 143 Ark. at page 101, 222 S. W. 362, where, referring to the act of 1905, sufra, the court said: “The act is intended to make timber sold separately and apart from the land on which it stands personalty for the purposes of taxation, so that the land and the timber may be separately assessed and the owner of the land be not required to pay the taxes on the timber, which would otherwise he charged to him as a part of the land.” This doctrine was recognized in the case of Southern Lumber Co. v. Arkansas Lumber Co., 176 Ark. 912, 4 S. W. (2d) 928, hut in that case the declaration is made that: “It is well settled in this State that growing trees may be severed from the land itself, and that the severance is accomplished by a conveyance of the timber, or by a conveyance of the land with a reservation or exception as to the timber. The ownership of the growing trees, after severance, is to all intents and purposes the same as the ownership of the land, and this ownership is attended with all the attributes peculiar thereto. In recognition of this rule, the Legislature of 1905 passed an act for the assessment of timber which had been sold separate and apart from the land on which it stands.”
From the act and the decisions, cited relating to and construing it, appellee reasons that the character of the standing timber on the lands in question is fixed as personal property, and therefore is not subject to taxes for local improvements. 'The cases do not support the contention of the appellee. It is settled law and common knowledge that iby the term “land” is meant everything that lies below the surface or is attached thereto by the processes of nature or of art and that standing timber is as much a part of the land as the soil constituting the surface, and it was in that sense the term was used in the act creating appellant district. Therefore, the benefit accruing to the landowner estimated at $28 per acre was the increased value of the land in its entirety and not to any particular interest therein, and the special assessment finds justification in the peculiar betterments to the property as a whole created by the building of the levee. Ahren v. Board of Imp. Dist., 69 Ark. 68, 61 S. W. 575 ; Kirst v. St. Imp. Dist., 86 Ark. 1, 109 S. W. 526 ; Gould v. Sanford, 155 Ark. 304, 244 S. W. 433. If the land is chiefly valuable for agricultural purposes, as claimed by the appellee, and the levees designed for the purpose of increasing that value, the fact that it is being used for some other purpose cannot relieve it from the assessments of benefits for the improvement made.
“The owner will not be relieved of taxation on account of the levee by reason of the fact that his lands will not be. enhanced in value to him for the purposes he is using or intends, to use them. The fact that the use to which the-property is devoted will not ibe increased will not relieve it because the improvement is thereby rendered valueless to the owner. Only to the extent that such use affects the market value can it be taken into consideration iby the assessor. As has been justly remarked by a court, ‘when the owner has. the unrestrained power of alienation, and the property may be converted to any use at his pleasure, it is difficult to see.how, upon any principle, an exception can be made to the rule regarding- only the market value. After the owner has escaped what would otherwise be a great burden, on the ground that he does not intend to use the property in a way which will make the improvement beneficial, he may change his mind, throw the property into the market, and realize advantages for which others had been made to pay.’ ” Memphis L. & T. Co. v. St. Francis Levee Dist., 64 Ark. 258, at page 265, 42 S. W. 763, 765.
Although in this case the land is devoted to the growth of timber instead of cotton and corn and other agricultural products, the burden of the local benefit remains, and the act of the owner by her conveyance of the timber in dividing the entire estate in the land into two estates, one consisting of the soil and the other of the timber standing thereon, does not change the character of the estate or relieve it of its burden. For, as is said in Southern Lumber Co. v. Arkansas Lbr. Co., 176 Ark. 912, 4 S. W. (2d) 928: “The ownership of growing trees after severance” (constructive severance by deed) “is to all intents and purposes the same as the ownership of land, and this ownership is attended with-all the attributes peculiar thereto.” And, in the case of Anderson Tully Co. v. Gillett Lumber Co., 143 Ark. 97, 222 S. W. 363, where act No. 146 of the Acts of 1905 was invoked to defeat an action for specific performance of a contract to convey certain timber on the ground that the timber sold apart from the land on which it stands becomes per-' sonalty, that contention was denied, the court saying: ‘ ‘In a number of cases prior to the passage of this act we recognized timber as a part of the realty and held that a conveyance of it as such conveyed an interest in the land itself; and we think there was no legislative intent to overturn those decisions. And in a number of cases since that act we have reiterated the doctrine that a conveyance of the timber on a certain tract of land is a conveyance of an interest in the land itself, and that the timber is real estate until it is severed from the soil.” In support of the principle there announced, the court cited Griffith v. Ayer-Lord Tie Co., 109 Ark. 223, 159 S. W. 218 ; Graysonia-Nashville Lbr. Co. v. Saline Development Co., 118 Ark. 192, 176 S. W. 129. Continuing, the court said: ‘ ‘ The act is intended to make timber sold separately and apart from the land on which it stands personalty for the purposes of taxation, so that the land and the timber may be separately assessed and the owner of the land be not required to pay the taxes on the timber, which would otherwise be charged to him as a part of the land.”
It is immaterial under the act of 1905 whether the timber owned separately from the ownership of the soil was to be assessed as personal property or otherwise, since the act provided that it should be assessed in the county in which the lands were situated. But, as the standing timber was not “property of a doubtful character,” the classification was arbitrary and unscientific, which the Legislature subsequently recognized by act 221 of the Acts of 1929, amending § 9856 of the Digest, where provision is made that where the timber rights in any lands shall, by conveyance ol otherwise, be held by one or more persons and the fee simple title in the lands held by one or more persons the timber rights in the land shall be assessed separately from “thé general property therein”; that a sale of the one for delinquent taxes should not affect the title of the other, and that when any timber rights should be forfeited for the non-payment of taxes it should 'be “certified to and redeemed in the same manner as is now provided for the certification and redemption of real estate upon which taxes duly assessed have not been paid.” This act recognized the force of our decisions, and it would seem that now standing timber remains, when constructively severed, even for purposes of general taxation, a part of the realty. But, assuming the classification made by the act of 1905 still in being, under repeated decisions oif this court this would not refer to taxes for local benefits. It seems to be the general rule that where the terms “taxes” or “taxation” are used in our Constitution or statutes, they are construed to have reference to taxation for general purposes, and not to local assessments where the fund raised is expended for the improvement of the property taxed.
In City of Bridgeport v. N. Y., etc. Ry. Co., 36 Conn. 263, quoted with approval in the case of Paving Dist., etc. v. Sisters of Mercy, 86 Ark. 109, 109 S. W. 1165, quoting from page 113, the court said: “An assessment of benefits for local improvements has never been regarded as a tax, or termed such in legislative proceedings, in our public or private laws, or in popular intercourse.”
“Assessment upon real estate for local improvements has no connection whatever with the general taxing powers mentioned, and this is so well settled as really to require no citation of authorities, much less argument.” Carson v. St. Francis Levee Dist., 59 Ark. 513, 27 S. W. 590, at page 531.
In Cooley on Taxation, p. 416, ch. 20, § 1, this question is thus discussed by the author: “Special assessments are a peculiar species of taxation, standing apart from the general burdens imposed for State and municipal purposes, and governed by principles that do not apply generally. The general levy of taxes is understood to exact contributions in return for the general benefits of government, and it promises nothing to the persons taxed beyond what may be anticipated from an administration of the laws for^ individual protection and the general public good. Special assessments, on the other hand, are made upon the assumption that a portion of the community is to be specially and peculiarly benefitted, in the enhancement of the value of property peculiarly situated as regards a contemplated expenditure of public funds; and, in addition to the general levy, they demand that special contributions, ill consideration of the special benefit, shall be made by the persons receiving it. The justice of demanding the special contribution is supposed to be evident in the fact that the persons who are to make it,jvhile they are made to bear the cost of a public work, are at the same time to suffer no pecuniary loss thereby, their property being increased in value by the expenditure to an amount at least equal to the sum they are required to pay.” And in Illinois Central Rd. v. Decatur, 147 U. S. 190, 13 S. Ct. 293, the court, referring to the principle stated by Mr. Cooley, supra, said: “These distinctions have been recognized and stated by the courts of almost every State in the Union, and a collection of the oases may be found in any • of the leading text books on taxation. Founded on this distinction is a rule of very general acceptance—that an exemption from taxation is to be taken as an exemption simply from the burden of ordinary taxes, taxes proper, and does not relieve from the obligation to pay special assessments.”
The rule announced in these cases seems to settle the instant case contrary to the contention of the appellee. He relies, however, on the case of Dover Lumber Co. v. Bd. of Com’rs, etc., 173 N. C. 117, 91 S. E. 714, where the court used the following language: “When standing timber is severed by conveyance from the land, with the right to cut and remove within a given period all timber of a certain size, it is no longer a part of the land. The owner of the timber is not a freeholder or landowner from the mere fact of owning a timber lease. It is true we have held that timber is to be considered as land for purposes of conveyancing, but it does not follow the land after it has been so conveyed, and is no longer a part and parcel of it.” The authority of this case is weakened by the dissenting opinion of Mr. Chief Justice Clark, who dissented from the statement made, which he contends is merely obiter dietumv, and for the reason that “moreover, the conveyance of the timiber right has been often held by this court to be a conveyance of the realty. If' the timber had not been conveyed at the time of the judgment in this drainage proceeding, the land with the timber on it would have been assessed its due share for the payment of the bonds and the expenses of the proceeding. The owner, having parted with the valuable timber interests, would not be assessed for the same valuation on the land as he would have been before such conveyance. If the valuation assessed against his land was reduced by the value of the conveyance of the timber, of' course the owner of such timber right would be assessed for the value of such timber as was standing and uncut at the time the assessment and valuation were made. It is true the conveyance may be called a lease, but it is not a lease in the ordinary sense of a lease of a house or farm which takes nothing from the value of the realty, but it is a conveyance of an interest for years in the land. Till the timber is cut, the land cannot be used for any other purpose, and the gradual cutting of the timber will impair the value of the tract. ’ ’
We think the better reason supports the statement of the Chief Justice, supra, and that it is in line with the rules announced by our own decisions. It will be noted, moreover, that the facts in the Dover Lumber case, supra, are quite different from those of the case at bar. In that case the timber was of a certain size and conveyed before the formation of the drainage district and for a period of only five years, while in this case when the district was formed Mrs. Felger owned the entire estate, and after the improvement had been completed she conveyed to a holding corporation for a period of fifty years all the timber and its growth during that period. It follows from what we have said that the chancellor erred in granting the relief prayed by the intervener. The decree is therefore reversed, and the cause remanded with directions to dismiss'the intervention of appellee, and for further proceedings in accordance with the rules of equity and not inconsistent with this opinion. | [
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David Newbern, Justice.
The appellees, James E. and Alice R. Craft, found defects in a car they purchased from the appellant, Thomas Auto Co., Inc. (Thomas). They returned the car and revoked their acceptance of it. Thomas refused to refund the purchase price. In their original and first amended complaints, the Crafts sought restitution of the purchase price plus incidental and consequential damages and, alternatively, damages for breach of warranty. They further amended their complaint to add a claim for damages for deceit. The trial court instructed the jury on both restitution based on revocation of acceptance and damages for misrepresentation. The jury awarded both as well as punitive damages. The primary issue presented concerns whether a rescinding party may obtain damages for misrepresentation in addition to restitution of the purchase price. We hold that the claimant may not have both a restitutionary award and compensatory damages for deceit. We also conclude that if the Crafts are ultimately awarded restitution of the purchase price plus incidental and consequential damages, rather than damages for deceit, punitive damages may be awarded if the tort of deceit has been proven.
The Crafts contracted with Thomas to purchase a new Chrysler New Yorker automobile on August 30, 1986. The Crafts thought they were purchasing a new car, and, although there was no evidence that the car had been owned by any other purchaser from the dealer, it was clear that the car had been damaged and Thomas knew it but did not reveal the damages to the Crafts.
The Crafts first discovered a defect in the car’s vinyl roof. Thomas attempted unsuccessfully to fix it, but ultimately ordered a new vinyl roof for the car. Then the Crafts discovered that the hood of the car had been repainted and there were dents on it elsewhere. They became completely dissatisfied with the car. They negotiated with Thomas to return the car, but Thomas refused to return the purchase price. The Crafts notified Thomas on December 16,1986, of their revocation of acceptance. The car was returned to Thomas on December 30, 1986.
A salesman for Thomas testified that the hood of the car was repainted in the Thomas shop and that it was not uncommon for Thomas to decline to inform a purchaser of a purportedly new car that it had been damaged prior to the sale. Thomas presented evidence that new cars are sometimes defective when received by the dealer and that they are sometimes damaged while on the dealer’s lot awaiting sale. No evidence was presented to show that the car was not new, in the sense that it had been previously purchased from the dealer or driven extensively by anyone other than the Crafts.
In instruction number ten, which was read to the jury, it was stated that
If you [the jury] decide for James E. and Alice R. Craft against Thomas ... on the question of damages with respect to the misrepresentation . . . you must fix the amount of money which will reasonably and fairly and adequately compensate the Crafts for ... : The difference in the fair market value of the automobile as it is and as it was represented to be at the time of the sale.
Instruction number eleven was, in pertinent part, as follows: “If you decide for [the Crafts] ... on the question of revocation of acceptance, you must then fix the amount of money which would refund the payment made plus the trade-in allowance on the automobile traded in by [the Crafts]. . . plus incidental and consequential damages incurred . . . .”
Instruction twelve permitted the jury to return punitive damages if they found Thomas knew or should have known its conduct, presumably that contemplated in instruction number ten, would result in injury to the Crafts and acted with malice or in reckless disregard of the consequences from which malice might be inferred.
After voicing his objection to instruction number ten on the ground that there was insufficient evidence to support the claim of misrepresentation, counsel for Thomas said:
And for the additional reason that Court’s Instruction Number 11 is presenting to the jury the option of additionally finding that the plaintiffs are entitled to revocation of acceptance, and therefore the three instructions together, 9,10, and 11 in effect would authorize the jury to find that revocation was proper in this case and therefore, the plaintiffs were entitled to be made whole as they were on the date of the sale, and in addition, be allowed an additional sum for an alleged misrepresentation about whether or not the vehicle was new or not, when there’s no evidence to show that it was anything other than a new vehicle.
Object to the form of instruction that permits the jury to find both compensatory damages for revocation of acceptance for misrepresentation and I object to the jury form that permits them to find punitive damages.
The verdict form, as executed by the jury, was as follows:
“We the jury find for Alice and James Craft in their claim against Thomas Auto Company, Inc., and assess damages as follows:
Revocation of Acceptance:
COMPENSATORY 18,102.08
Misrepresentation: COMPENSATORY 2,100.00
PUNITIVE 6,000.00
SHELIA BLANKENSHIP
FOREPERSON”
Thomas moved for a new trial on the basis that it was error to give both the restitution instruction based on rescission and the damages instruction based on affirmance and the allegation of deceit, and that the result had been a double recovery.
The objection
The Crafts contend the objection made to the instructions was not sufficiently specific and that it was only an objection stating there was insufficient evidence to show the car was anything other than a new car as it had been represented.
The objection was not only specific, it was right on the point which is being argued on appeal. Although counsel for Thomas threw in a remark about the insufficiency of the evidence to prove deceit, that did not detract from his making the exact point that the jurors should not be allowed to award both restitution and damages for deceit, as that would amount to a double recovery.
If the instructions, taken together, were erroneous because they failed to tell the jury that restitution and damages could only be awarded in the alternative, the objection was sufficient to inform the trial court of the problem. An objection to an erroneous instruction is sufficient if it is timely and states a valid reason. Ark. R. Civ. P. 51; Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984). The rule requires a proffer of an instruction only when the objection is to the “failure to instruct on any issue.”
While it might be argued that the court had failed to instruct on the “issue” of the alternative nature of the remedies available to the jury, and thus Thomas should have proffered an instruction on that point, we do not think that is the intent of the rule. We conclude that the “issues” contemplated by the rule were, in this case, the ones on which instructions had been given, i.e., the Crafts’ entitlement to revocation of acceptance and recovery for deceit.
Double recovery
In response to Thomas’s argument that the instructions permitted a double recovery, the Crafts contend that Ark. Code Ann. § 4-2-721 (1987) permits the court to submit the case on theories of rescission and affirmance simultaneously. That section provides:
Remedies for material misrepresentation or fraud include all remedies available under this chapter for nonfraudulent breach. Neither rescission or a claim for rescission of the contract nor rejection or return of the goods shall bar or be deemed inconsistent with a claim for damages or other remedy.
Nothing in this section says one may recover both a restitutionary award based on rescission and damages for fraud. It is no more than a repudiation of the preliminary election of remedies doctrine. The fact that “claims” based on revocation of acceptance of goods or rescission (disaffirmance of contract) and deceit (contract affirmance) are not to be regarded as inconsistent does not mean that “recoveries” on both theories are to be permitted.
The Crafts cite Ozark Kenworth, Inc. v. Neidecker, 283 Ark. 196, 672 S.W.2d 899 (1984), for the proposition that one may recover both restitution of the purchase price and damages for deceit. In that case, there was evidence that the purchaser of a defective truck had attempted to revoke acceptance, however, no verdict form which would have permitted recovery on that theory was presented to the jury. The jury awarded damages for breach of warranty and fraud. We reversed the judgment because the court instructed only on “incidental” damages and did not tell the jury the measure of recovery for breach of warranty or for deceit. Clearly, it was not a case in which we approved a restitutionary award of return of the purchase price in addition to a damages award for the difference between the value of the truck as received and its value had it been as represented.
We need not discuss the cases from other jurisdictions cited by the Crafts except to say that in none of them was there a recovery of both the purchase price, based on revocation of acceptance, and compensatory damages for deceit, thus giving the claimant both the benefit of the bargain and the benefit of rescission. Under no circumstances would we permit, over proper objection, both recoveries. Such a double recovery would be unconscionable.
While we might suspect that, had it been instructed properly, the jury might have awarded the Crafts their purchase price plus consequential and incidental damages only, we are in no position to say that would necessarily have been the result, thus we must reverse and remand the case for a new trial. Upon retrial, presumably the Crafts will elect between seeking to have the jury instructed on the law of revocation of acceptance and restitution, on the one hand, and the law of the tort of deceit on the other.
Punitive damages
Thomas has argued that punitive damages may not be awarded except in conjunction with compensatory tort damages. The Crafts cite cases from other jurisdictions where, upon proof of fraud, punitive damages have been awarded in addition to a restitutionary award, despite the lack of an award of out of pocket or benefit of the bargain damages for fraud. E.g., Hutchison v. Pyburn, 567 S.W.2d 762 (Tenn. App. 1977). They argue specifically that the consequential or incidental damages awarded in this case by the jury in addition to the return of the purchase price constitutes actual or compensatory damages upon which punitive damages may be based. Cases decided in other jurisdictions so hold. See, e.g., Fousel v. Ted Walker Mobile Homes, Inc., 602 P.2d 507 (Ariz. App. 1979); Robinson v. Katz, 610 P.2d 201 (N.M. App. 1980); Z.D. Howard Co. v. Cartwright, 537 S.W.2d 345 (Okla. 1975). In Grandi v. LeSage, 74 N.M. 799, 399 P.2d 285 (1965), punitive damages were allowed where the only other recovery was restitution of the purchase price of a misrepresented horse plus consequential damages.
We can think of no reason why punitive damages should not accompany a restitutionary award if there is proof of the elements of deceit as a basis of revocation of acceptance or extrajudicial rescission. The purpose of punitive damages is deterrence and punishment of wrongdoing. Holmes v. Holingsworth, 234 Ark. 347, 352 S.W.2d 96 (1961). See Dongary Holstein Leasing, Inc. v. Covington, 293 Ark. 112, 732 S.W.2d 465 (1987). The decision of a buyer of goods to revoke acceptance and seek a return of the purchase price should not immunize the seller from punitive damages for which he might be liable if the buyer chose the alternative damages remedy.
The reason for requiring an ultimate election between restitution based on rescission and compensatory damages resulting from the tort of deceit is the prevention of a double recovery. D. Dobbs, Remedies, p. 634 (1973). That reason should not prevent a party whose action “sounds in contract” or is “ex contractu” from recovering punitive damages where the basis of rescission or revocation of acceptance is conduct which constitutes the tort of deceit.
We do not decide whether the evidence in the record before us now would support a deceit action or punitive damages. Punitive damages are available in a deceit action. Moore Ford Co. v. Smith, 270 Ark. 340, 604 S.W.2d 943 (1980). Cf. Satterfield v. Rebsamen Ford Inc., 253 Ark. 181, 485 S.W.2d 192 (1972). Here we hold they are available also to a claimant whose claim based on rescission or revocation of acceptance results in restitution and consequential or incidental damages.
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J. Fred Jones, Justice.
This is an appeal by Ivan C. Wright from a mandatory injunction issued by the Chancery Court of Clay County requiring Mr. Wright to effectively screen his junkyard located on Highway No. 1, or in the alternative remove all junk 1,000 feet from the right-of-way óf Highway No. 1 under the provisions of Act 640 of 1967, Ark. Stat. Ann. §§ 76-2513 — 76-2519 (Supp. 1971).
On his appeal to this court Mr. Wright first contends that the chancellor erred in finding that he was operating a junkyard within the meaning of the statute. He next contends that Act 640 of 1967 is unconstitutional as applied to him in that it constitutes a taking of his property without just compensation. He then contends that aesthetic considerations alone are not sufficient for the exercise of the police power of the state in the taking or damaging of property for public use without just compensation.
We find no merit to the first contention and we do not reach Mr. Wright’s second and third contentions because they are raised for the first time on this appeal and were not alleged or argued before the chancellor. Ragge v. Bryan, 249 Ark. 164, 458 S.W. 2d 403.
Mr. Wright first demurred to the petition filed in chancery court by the Arkansas State Highway Commission and alleged that the petition did not state by what authority the Highway Commission sought to regulate the establishment, use and maintenance, of junkyards; that the petition did not state what lands, if any, he owned abutting on the highway upon which the alleged junkyard was maintained. The petition was amended to supply the deficiency complained of in the demurrer. Mr. Wright filed an additional demurrer to the complaint alleging that the Highway Commission was created under Amendment 42 to the Arkansas Constitution; that the Amendment vested the Highway Commission with all the powers and duties thereafter imposed by law for the administration of the State Highway Department with full power to enable the Commission, its officers and employees to clearly use the laws and regulations of the.State Highway Department. He alleged that the petition filed by the Commission was filed under Act 640 of 1967 and seeks to confer on the Commission powers and duties not provided for or authorized under Amendment 42; that the Act seeks to confer on the Highway Commission authority to regulate property not on the highway and property within 1,000 feet of the highway, and that the Commission would have no authority to act outside of the right-of-way along which the highway travels. He then prayed that the petition be dismissed as “being without authority of law.” This demurrer was filed on November 19, 1971, and on the same date Mr. Wright filed an answer denying the Commission’s authority under existing law to regulate the use, establishment and maintenance of junkyards adjacent to highways; admitting that he owned the property involved but denying that he was operating, or had established, a junkyard on the property within 1,000 feet of the right-of-way of Highway No. 1. On February 29, 1972, the demurrers were overruled and, although Wright reserved the right to rely on the demurrers when he filed his answer, he proceeded to trial on the merits.
At the trial on the issues before the chancellor, Larry Long, an employee of the State Highway Environmental Development Section, testified that he inspected the property involved; that the conditions found on the premises did not comply with Act 640. He said that the property contained junk and dismantled automotive vehicles and was located in the City of Rector at the junction of Highway No. 1 and Arkansas 90, both public highways with Highway No. 1 being a primary highway. Mr. Long was then cross-examined at length as to the general location of the property and whether or not the automobiles could be restored as antique automobiles.
Mr. Wright simply contended, and attempted to prove, that his operation did not come within the definition of a junkyard or automobile graveyard under the Act and was, therefore, not subject to regulations under the Act. The statutory definition under § 76-2514 reads as follows:
“a. The term 'junk’ means , . . waste, or junked, dismantled, or wrecked automobiles, or parts thereof. . . b. The term ‘automobile graveyard’ shall mean any establishment or place of business which is maintained, used, or operated, for storing, keeping, buying or selling wrecked, scrapped, ruined, or dismantled motor vehicles or motor vehicle parts. c. The term ‘junkyard’ shall mean an establishment or place of business which is maintained, used or operated for storing, keeping, or selling junk, or for the maintenance or operation of an automobile graveyard. ...”
Mr. Wright contended at the trial that he was simply conducting an antique automobile business and was storing 175 old automobiles on his property adjacent to the highway so that prospective purchasers could view his display of antique automobiles from the highway. He testified that he has not purchased or sold any automobiles from the premises in 10 years since he ceased operating an automobile salvage business on the premises. He said he still maintains an automobile junkyard on the backside of the lots involved, but that it is screened from view from the highway by a building on the premises. He said that automobiles become antiques when they are 20 years of age; that the automobiles displayed to the traveling public on his premises adjacent to the highway are all more than 20 years of age and becoming more valuable as antiques each day.
Photographs of the automobiles and the premises on which they were located were placed in evidence. From viewing the photographs, the chancellor remarked in his findings as follows:
“I can’t see how they could possibly be referred to as antiques until they are operable and restored, they are nothing but old skeletons of automobiles. * * * [T]his is the most incredible testimony I have ever heard as a defense.”
We have also examined the photographs and are inclined to agree with the chancellor. From the photographs in evidence some of the old automobiles and trucks appear to be without wheels; some appear to have the doors off, windshields and window glasses out, and some appear to have their wheels buried in the ground halfway to the axle. Even though Mr. Wright testified that he mowed between the automobiles at regular intervals, the pictures clearly indicate that such intervals were a long way apart. In plaintiff’s pictorial exhibits No. 4 and 5 appear a sign “Welcome to Rector Business District” and immediately behind this sign is one of the appellant’s old automobiles turned up on its side and covered with vines which have grown up over it and another old automobile adjacent to it.
We find it unnecessary to detail the remaining testimony in this case because it had to do with the supply, demand and value of antique automobiles. The picture exhibits in the record simply show a jumbled collection of old automobiles and automobile bodies, and we conclude that the chancellor did not err in finding that the appellant was maintaining a junkyard within the meaning of the statute.
There is no evidence in the entire record as to just compensation or to what extent, and in what manner, Mr. Wright’s property would be damaged by removal or screening the automobiles from highway view, except that it would prevent him from displaying the old automobiles to view from the highway. The chancellor’s opinion was based in part upon findings recited in the opinion as follows:
“The testimony is these old automobiles were being stored until somebody comes along and maybe buys them. He says he has not sold any for over a period of ten years and I assume he probably likes to collect old automobiles. He is not too anxious to sell them, otherwise he would have turned these over a ten year period of time. I can assume from these pictures here that they are going to cause rats and mice and anything that wants to collect in these old carcasses. That’s what I would refer to them as. I can’t see how they could possibly be referred to as antiques until they are operable and restored, they are nothing but old skeletons of automobiles. Under this theory here, if I were to adopt the theory that they are antiques, any junk dealer in the country could say, 1 am saving these for antiques.’ Some of the windshields are broken, some of the windows knocked out, some of those in the pictures may not have been in a wreck but they sure hit something that was very steady.”
We are unable to say that the chancellor’s finding is against the preponderance of the evidence. The decree is affirmed.
Affirmed.
The appellant’s attorney on this appeal did not represent him at the trial. | [
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Ed. F. McFaddin, Justice.
The litigants are rival claimants to a tract of land in White County which became delinquent for the 1944 State and County taxes, and was purchased by appellant, Howell, at the Collector’s sale on November 12, 1945. After the expiration of the two-year .period allowed for redemption appellant received a deed from the County Clerk on November 19, 1947.
On December 17, 1947, appellant filed suit in the White Chancery Court, praying that his title be quieted and confirmed and alleging possession under his tax deed, and also that “Plaintiff has paid the State and County taxes due on said lands for the three years next before publication of notice of the filing of this complaint.” This suit to quiet title was Case No. 2959 in the White Chancery Court; and we refer to it as “the confirmation suit.” The appellees — L. 0. McMillan and 0. W. Killan, both residents of Texas — were named as the only defendants in the confirmation suit; and service of process on them was attempted by publication of a warning order and report of attorney ad litem. Proof of such publication of the warning order became a part of the file in the case, and a decree of confirmation was rendered on February 9, 1948, based on the said publication of warning order and report of attorney ad litem as the only service of process in the case.
On March 23, 1949, the present appellees — McMillan and Killan — filed Case No. 3264 in the White Chancery Court, naming the present appellant, Howell, as the defendant, and attacking the confirmation decree in Case No. 2959. The complaint alleged, inter alia:
(a) That appellees were the owners of the land;
(b) That the 1944 tax sale was void for several itemized reasons;
„ (c) That appellees tendered appellant a return of all amounts, etc., paid by him; and
(d) That the confirmation decree in Case No. 2959 was void because, inter alia, the warning order published in the said confirmation suit was insufficient publication to give the Court jurisdiction to render the confirmation decree in Case No. 2959.
In his pleadings against the said complaint, appellant admitted that the 1944 tax sale was voidable for-several reasons; but claimed (a) that the confirmation decree was valid and rendered beyond attack all the defects in the tax sale, and (b) that the appellees had delayed too long to attack the confirmation decree. The Chancery Court consolidated Case No. 2959 and .Case No. 3264, and upon a trial, reflecting the facts as above recited, found for appellees, set aside the confirmation decree, and quieted appellees’ title subject to payment to appellant of all amounts paid out by him for taxes on the lands involved. From that decree is this appeal.
Learned counsel for appellant says that the confirmation proceedings were under the authority of § 34-1918, et seq., Ark. Stats. (1947), and claims that all jurisdictional requirements were strictly followed by appellant in the confirmation suit. We conclude, however, (a) that at least one essential jurisdictional requirement ■ — i. e., legal publication of notice — was lacking in the confirmation suit; (b) that such defect appears in the confirmation proceedings; and (c) that the confirmation decree was void as rendered without proper publication.
As previously stated, appellant admits that the confirmation suit (i. e., Case No. 2959) was brought under § .34-1918, Ark. Stats. (1947). We agree with that statement; but we find that § 34-1919, Ark. Stats. (1947), prescribes the form, contents, and time required for valid publication of notice in proceedings under § 34-1918, which is six weeks’ publication of a notice that “shall state the authority under which the sale took place and give a description of the land purchased and the nature of the title by which it is held. ’ ’ The publication on which appellant based the confirmation decree was a four toeeks’ publication of a warning order which recited:
“The defendants, L. 0. McMillan and 0. W. Killan, are hereby warned to appear in this court within thirty days and answer the complaint of the plaintiff.”
It is clear that the publication of the said warning order for four weeks was not the type of publication required by § 34-1919. The decree in the confirmation suit recites that it was based on the publication of the warning order, and the warning order and proof of publication were made a part of the papers in the confirmation proceedings; so, under the authority of Winn v. Campbell, 94 Ark. 338, 126 S. W. 1059, we conclude that the confirmation decree itself shows the insufficiency of publication required to give the Court jurisdiction to render the confirmation decree under § 34-1918. When a litigant pursues a special statutory proceeding (as the confirmation proceeding pursued by appellant in the case at bar), then the method of service provided in such special statutory proceeding is exclusive. In Abbott v. Butler, 211 Ark. 681, 201 S. W. 2d 1001, in discussing confirmation proceedings we cited Lawyer v. Carpenter, 80 Ark. 411, 97 S. W. 662, and said:
“It was held in the case just cited that a general law does not apply where there is a specific statute covering a particular subject matter, irrespective of the date of their passage, and the effect of the confirmation decree must be construed with reference to the act under which it was rendered. ’ ’
We therefore conclude that there was no legally sufficient publication of the notice as required by § 34-1919 so as to give the Court jurisdiction to render the confirmation decree in Case No. 2959; that the Chancery Court was correct in consolidating that case with Case No. 3264, and in allowing appellees to make defense to the confirmation proceeding; and that the defense, as made, supports the decree rendered and from which there is this appeal. Other questions presented by the appellant are found to be without merit.
Affirmed.
See § 84-1201 Ark. Stats. (1947).
The form of warning order in this case was that as contained in Form No. 5 of the Appendix to Ark. Stats. 1947, Annotated Vol. 3, p. 1100.
In order to be able to definitely state that § 34-1919 governs the _notice required in proceedings brought under § 34-1918, we have made a step by step survey of the legislation leading to these Sections, as contained in the various compilations of our Statutes, as follows:
(a) — Sections 1 and 2 of Chapter 149 of the Revised Statutes of 1838 were carried verbatim into §§ 1 and 2 of Chapter 160 of English’s Digest of 1848, except the words “at the City of Little Rock” were changed to read “in this State,” since the Digester in 1848 understood that § 6 of Chapter 6 of the Revised Statutes of 1838 authorized such a change.
(b) — Sections 1 and 2 of Chapter 160 of English’s Digest of 1848 were carried verbatim into §§ 1 and 2 of Chapter 170 of Gould’s Digest of 1858 and then into §§ 786 and 787 of Gantt’s Digest of 1874.
(c) — Section 786 of Gantt’s Digest was amended by Act 69 of 1881 to substitute the words “the County Clerks or by the State Land Commissioner” in lieu of the words “the Auditor”; and as so amended became § 576 of Mansfield’s Digest of 1884. Section 787 of Gantt’s Digest was carried verbatim into § 577 of Mansfield’s Digest of 1884.
(d) — Section 576 of Mansfield’s Digest has remained unchanged and has been carried verbatim into § 661 of Kirby’s Digest of 1904, and § 8379 of Crawford & Moses’ Digest of 1921 and § 10975 of Pope’s Digest of 1937; and is now § 34-1918, Ark. Stats. 1947.
(e) — Section 577 of Mansfield’s Digest was amended by § 1 of Act 95 of 1893 and, as so amended, became §§ 662 to 664, inclusive, of Kirby’s Digest of 1904. These §§ 662 to 664 of Kirby’s Digest were carried verbatim into §§ 8380 to 8382, inclusive, of Crawford & Moses’ Digest of 1921 and into §§ 10976 to 10978, inclusive, of Pope’s Digest of 1937, and now constitute § 34-1919, Ark. Stats. 1947. | [
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Frank Holt, Justice.
A jury convicted appellant of capital felonymurder [Ark. Stat. Ann. § 41-1501 (1) (a) (Repl. 1977)] and fixed his punishment at life imprisonment without parole. The state adduced evidence that the victim, a fourteen year old girl, was abducted from a laundromat in Benton, Arkansas, raped and shot four times on February 3, 1980. The body was discovered the next day near Benton. The appellant, along with a man named Joseph Michael Breault and two women, all transients, camped at a park near Benton on February 2 and left on February 5, though they had originally paid to stay through February 6. One of the women testified that the appellant and Breault were armed but they disposed of the guns. A .357 Magnum, owned by the appellant, was subsequently retrieved from a lake. Ballistics tests demonstrated that this was the weapon from which the fatal bullets were fired. Glitter and hair were found on pants in the truck driven by the appellant and Breault, matching glitter and hair found on the clothing of the deceased. Appellant and Breault were later arrested in Colorado. The appellant does not challenge the sufficiency of the evidence. Flis court appointed cousel raises two points for reversal. We affirm.
Appellant first contends that the trial court erred in refusing to conduct a sequestered voir dire. He requested that the court, in the exercise of its discretion, allow him to question each prospective juror individually during a sequestered voir dire inasmuch as the state was seeking the death penalty. The court refused the motion. However, he did permit individual voir dire. A.R.Cr.P., Rule 32.2. Appellant argues that if he had been allowed to interview the jurors privately the jurors would have answered questions more candidly about their knowledge of the case based on pretrial publicity, their past experiences as crime victims and their opinion of the death penalty. He alludes to only one instance in support of this argument; i.e., venireman Lawrence stated that he had not formed an opinion about capital punishment before the voir dire began, because he had not thought about it or had to make that decision. He wasn’t sure what his opinion would have been if he had been the first juror questioned. However, he had decided that he believed in it under certain circumstances. The appellant did not receive the death penalty; therefore, he was not prejudiced by this recited occurrence. Hobbs v. State, 277 Ark. 271, 641 S.W.2d 11 (1982); and Van Cleave v. State, 268 Ark. 514, 598 S.W.2d 65 (1980). In his sequestration motion appellant acknowledges, as indicated, that sequestration of the jury for voir dire purposes is within the trial court’s discretion. In the circumstances we cannot say that appellant has met his burden of proof by demonstrating an abuse of that discretion.
The appellant next asserts that the trial court erred in denying his motion on the day of trial for a continuance. He premises this argument upon the asserted failure of the prosecution to comply with the court’s discovery order, contending, therefore, that he was entitled to a continuance pursuant to A.R.Cr.P., Rule 19.7, which provides that the trial court may, inter alia, grant a continuance for noncompliance with the court’s order. A.R.Cr.P., Rule 17.1 (d) requires that the prosecution “shall, promptly upon discovering the matter, disclose to defense counsel any material or information within his knowledge, possession, or control, which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce the punishment therefor.”
Appellant first argues that he did not receive copies of certain lab reports until the day of the trial. However, the prosecutor himself did not receive the written reports until the day of the trial. It appears, however, that the analysis of the materials to be tested was made known to defense co-counsel by the prosecutor ten days before trial, at which time defense counsel responded, “Well, that doesn’t seem like that’s any problem.” The lab did not have the final results until the weekend before the trial. Defense counsel -were informed of the final results by phone at that time. The prosecutor, himself, did not receive the written reports until the day of the trial, and they were promptly given to the defense counsel. Admittedly, the delay was not the “fault” of the prosecutor.
Secondly, appellant argues that the prosecution did not furnish the defense with a copy of a letter dated November 10, 1980, from a prosecutor in Colorado to the local prosecutor allegedly giving the name and address of a psychiatrist there to whom Breault, who accompanied the appellant on the date of the Arkansas murder, had confessed that he had killed the victim, reciting the facts and circumstances. Appellant’s present counsel with co-counsel were substituted as appointed counsel on February 11,1981. Trial date was set for April 27, 1981. The appellant argues that the prosecution had possession of the letter from the Colorado prosecutor and had refused to produce a copy of it which prevented the Colorado psychiatrist from being timely subpoenaed by the defense. In response, the prosecutor stated to the court that his entire file, including the letter, had been made available to the defense in compliance with the court’s discovery order. Furthermore, appellant’s counsel acknowledged to the court that “[i]n looking through the files sometime back” counsel had discovered a letter from the Colorado prosecutor to the Arkansas prosecutor. Further, defense counsel filed a petition for a writ of prohibition in this court on April 27, 1981, the day of trial, and attached thereto a letter dated November 10, 1980, from the Colorado prosecutor making reference to the psychiatrist’s report. This certainly verifies the statement that he had discovered the letter in his files prior to the trial. The letter, inter alia, referred to the existence of the Colorado psychiatrist reports on appellant and Breault following their apprehension there on local charges. It was stated in the letter that Breault had admitted committing the alleged Arkansas offense. The prosecutor steadfastly maintained that the defense had been furnished a complete copy of its file, including the letter and, therefore, he had complied with the court’s discovery order.
No effort was made to contact the Colorado psychiatrist until a few days before the trial date. As we have said, a defendant in a criminal case cannot rely upon discovery as a total substitute for his own investigation. Thomerson v. State, 274 Ark. 17, 621 S.W.2d 690 (1981). Here, there is no showing of a purposeful or willful violation of the discovery order. Further, the prosecution represented to the trial court that it had promptly obeyed the court’s discovery order. The defense maintained that it had not. The action of the trial court in denying a motion for continuance will not be reversed in the absence of a showing of such a clear abuse of the court’s discretion as to amount to a denial of justice, and the burden rests upon appellant to show that there has been such an abuse. Kelley v. State, 261 Ark. 31, 545 S.W.2d 919 (1977). Here, it is not demonstrated that the trial court, in resolving the issue, clearly abused its discretion in denying the motion for a continuance which was based upon the asserted failure of the prosecutor to comply with the court’s discovery order.
We have reviewed the record and all objections decided adversely to the appellant pursuant to the requirement of Supreme Court Rule 11 (f), Ark. Stat. Ann. Vol. 3A (Repl. 1979), and find no prejudicial error.
Affirmed.
Purtle, J., dissents. | [
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George Rose Smith, Justice.
The appellant, the operator of a discount store near Blytheville, was fined $50 for having sold certain articles on Sunday in violation of our Sunday closing laws. Ark. Stat. Ann. §§ 41-3812 et seq. (Supp. 1971). The only issue raised on appeal is the constitutionality of the statutes.
Such statutes have been sustained so frequently by this court and by the Supreme Court of the United States that an extended discussion is unnecessary. In fact, the appellant concedes that most of its available contentions have already been rejected and are therefore not reargued. Under our practice the appellant waives any contention that is not argued. Sarkco, Inc. v. Edwards, 252 Ark. 1082, 482 S.W. 2d 623 (1972).
The trial in the court below was perfunctory, the parties merely stipulating to facts showing that the defendant had sold articles on Sunday in violation of the statutes. It is now insisted that our Sunday closing laws are not sufficiently comprehensive to achieve the legislative purpose of creating a uniform day of rest. That argument was rejected in Two Guys From Harrison-Allenton v. McGinley, 366 U.S. 582 (1961), where the court held in substance that the legislature might confine its explicit prohibition to those businesses that were "particularly disrupting the intended atmosphere” of the day of rest. In the same vein it is argued that our statutes are arbitrary and discriminatory in permitting the sale of some commodities while prohibiting the sale of others. On its face the act is not arbitrary. For instance, the enumerated prohibitions avoid such necessaries as food and drugs. Since we cannot say that the legislative classification could not be sustained upon any conceivable state of facts, the appellant’s attack upon the statute must fail for want of proof that arbitrary classification is involved. Green Star Supermarket v. Stacy, 242 Ark. 54, 411 S.W. 2d 871 (1967); Taylor v. City of Pine Bluff, 226 Ark. 309, 289 S.W. 2d 679 (1956), cert. den. 352 U.S. 894 (1956).
Affirmed. | [
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Frank Holt, Justice,
a jury found appellant guilty of possession of a controlled substance (marihuana) and assessed his punishment at one year in the penitentiary and a $750 fine. Before trial, appellant filed a motion to suppress the evidence which was seized as a result of a car search. Appellant contends the search was conducted without probable cause and, therefore, the court erred in overruling his motion.
The relevant facts are that the owner of a local drive-in restaurant complained to a policeman that drinking and littering on his parking lot were causing a continous problem and asked if anything could be done about it. Two policemen proceeded to his premises and found only one car in the vicinity which was parked at a phone booth next to the highway. The car had no license plate and the officers stopped to investigate. Appellant, a passenger, was observed leaving the car and using a phone booth. The officers talked with the driver-owner of the car and determined that since the automobile was recently purchased the time had not expired for licensing. However, the officers observed a portion of a brown paper sack protruding from underneath the seat on the passenger side of the automobile. The shape and size of the sack caused the officers to believe it contained a bottle of liquor. The driver-owner of the car was a minor. He had previously had encounters with the local police with respect to the illegal possession of intoxicants. The appellant, the passenger, had experienced a similar difficulty. The driver-owner was asked by one of the officers, after seeing the paper sack, if he had any “booze” or anything to drink in the car. The officers testified that he stated that he did not and gave his consent to search. The driver-owner himself testified “[N]o, you can look.” He further testified that he moved his coat that was in the car so that the officers could see under the coat. The coat, upon being moved, however, covered the exposed paper sack. One of the officers opened the car door, got the paper bag and found that it contained a quantity of marihuana. A paper box was observed in the rear part of the car and it also contained a quantity of marihuana.
Appellant’s only contention is that in these circumstances the officers did not have probable cause for a warrantless search of the automobile in which marihuana was discovered. Appellant makes the argument that the officers had insufficient facts within their knowledge upon which they “could have reasonably concluded that the automobile contained that which offended against the law.” We need not determine the existence of probable cause to justify a warrantless car search under the requirements of Carroll v. United States, 267 U.S. 132 (1925). A voluntary invitation or consent waives the immunity rule. Martin v. State, 251 Ark. 1025, 476 S.W. 2d 235 (1972).
In the very recent case of Schneckloth v. Bustamonte, 93 S. Ct. 2041 (1973), it was held that a well established exception “to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” See, also, State v. Barron, 395 P. 2d 158 (1964). In Schneckloth, supra, an exploratory, warrantless car search, without probable cause, was upheld since the search was conducted by consent. The vehicle was stopped by an officer who observed it had defective lights. Only one of the six occupants, a passenger named Alcala, had a license. He said the car was his brother’s. When the officer asked him if he could search the car, Alcala stated “[S]ure, go ahead.” The police found three stolen checks wadded up underneath the rear car seat. Appellant, a passenger in the car, was subsequently convicted of unlawfully possessing a check* with the intent to defraud.
There, as in the case at bar, a motion to suppress was made on the basis that the evidence was acquired through an unconstitutional search and seizure. The court upheld the validity of the search on the basis of Alcala’s voluntary consent. The court, inter alia, set the standard for voluntary consent as “a question of fact to be determined from the totality of all the circumstances.” However, there, as in this case, there was no evidence that the search was coerced or involuntary. In the case at bar, the driver-owner himself testified “[N]o, you can look.” The totality of the circumstances shows that the owner-driver freely gave his consent for the officer to search the car. Therefore, since the warrant-less search was by consent it was constitutionally permissible to search the car and seize any contents that offended against the law. All warrantless searches and seizures are not prohibited by the Fourth Amendment, U. S. Const., or Art. 2, § 15, Ark. Const. - only those which are unreasonable. As in Schneckloth, supra, we cannot say where one voluntarily consents to a warrant-less search that the search is unreasonable.
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George Rose Smith, Justice.
The appellant was convicted of three violations of Ark. Stat. Ann. § 41-4501 (Repl. 1964), which reads in part: “Any person who shall wear or carry in any manner whatever, as a weapon, any dirk or bowie knife, or sword or spear in a cane, brass or metal knucks, razor, blackjack, billie or sap, ice pick, or any pistol of any kind whatever, shall be guilty of a misdemeanor.” The trial court fixed the punishment for each offense at a fine of $50 and confinement for 30 days, the latter part of the sentences to run concurrently. For reversal it is contended that the proof is insufficient to support the convictions.
Rowland was arrested in Little Rock in 1972 for a traffic violation. In his truck the officers found two shotguns with butcher knives attached to them and a loaded .38 caliber pistol. A chain was wrapped around the shotguns, passed through the trigger guard of the pistol, and secured with a padlock. Rowland had the key to the lock.
Rowland testified that in 1966 or 1968 a man cut him with a knife and another man threatened him with a pistol. According to Rowland, the prosecuting attorney refused to file charges in either case. Rowland testified that he was carrying the firearms and knives not as weapons but as a means of publicizing the injustices that he had suffered. He therefore argues that there was no violation of the statute, which forbids any person to carry “as a weapon” any of the articles specified in the act.
We hold that the proof presented a question of fact with respect to the pistol, which is one of the articles decribed in the statute. Whether a pistol is being carried as a weapon is ordinarily an issue of fact. Clark v. State, 253 Ark. 454, 486 S.W. 2d 677 (1972). We sustained a conviction upon proof that the defendant had a loaded pistol in the glove compartment of his car. Stephens v. City of Fort Smith, 227 Ark. 609, 300 W.S. 2d 14 (1957). The trial court was not required to accept Rowland’s explanation of his conduct, not only because the carrying of firearms obviously did not bring his precise grievances to the attention of the public, but also because his explanation did not account for the pistol’s being loaded. Hence there is substantial evidence to support the conviction upon the charge involving the pistol.
On the other hand, the State did not make a prima facie case with regard to the shotguns and butcher knives. Shotguns are not mentioned ip the statute at all. Neither are butcher knives, but the State argues that a modern butcher knife is the same thing as a Bowie knife. We cannot agree. Criminal statutes must be strictly construed, with doubts being resolved in favor of the defendant. Stuart v. State, 222 Ark. 102, 257 S.W. 2d 372 (1953). A butcher knife is certainly not a Bowie knife, as the latter is defined and illustrated in dictionaries. See the American Heritage Dictionary (1969) and the Random House Dictionary (1966). When the statute in question was adopted in 1818, Bowie knives were more commonly carried than they are today; so the legislation was needed. In 1909 die legislature added the reference to pistols. In 1941 the legislature further modernized the statute by including blackjacks, billies, saps, and ice picks, but the lawmakers did not find it necessary to mention butcher knives. In 1973, which was after the present charges had been filed against Rowland, the legislature amended the statute by deleting the reference to Bowie knives, which are no longer in current use. Act 54 of 1973. We also note that the State could have filed its charges with respect to the butcher knives under Act 457 of 1961, which refers specifically to any knife having a blade at least three and a half inches long. Ark. Stat. Ann. §§ 41-4521 and -4523. The State, however, chose to proceed under Section 41-4501, which we find to be inapplicable.
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Jack Holt, Jr., Justice.
Appellants are seven remote heirs of Alline B. Davis: Iva Belle Hardie was Alline B. Davis’ sister and the other named appellants were nieces and a nephew of Mrs. Davis (hereafter “the remote heirs”). Appellees are the Estate of Alline B. Davis and the Alline B. and C.C. Davis Charitable Foundation (hereafter “the estate”).
Alline B. Davis, widow of C.C. Davis, died on July 29,1991. Before her husband’s death, the Davises sought to set up an estate plan providing for the survivor of them, minimizing estate taxes, and setting up a charitable trust in their names, the Alline B. and C.C. Davis Charitable Foundation. Mr. Davis executed two wills: one dated September 13, 1978 and one dated January 3, 1980. Mr. Davis entered into the trust agreement setting up the charitable foundation with Merchants National Bank of Fort Smith (hereafter “Merchants”) on February 19, 1980.
Mr. Davis’ 1978 will stated that he did not want to leave his daughters anything and left his wife an amount exempt from estate taxes under the marital deduction and other deductions and exempt under a unitrust with the remainder of his estate going to the Davis Charitable Foundation. This will specifically sets out this foundation and names the trustees.
Mr. Davis’ 1980 will again stated that he expressly did not want to leave his daughters anything and left his wife an amount exempt from estate taxes under the marital deduction, $5,000 to the Boys Club of Fort Smith, and $5,000 to Sparks Manor of Fort Smith, the nursing home where his wife resided. The rest of his estate was devised to Evelyn and Bill Bateman, his niece and her husband, with the understanding that they were to look after Mrs. Davis. The Batemans were also appointed co-executors. The 1980 will made no mention of the charitable foundation, but a subsequent trust agreement was executed on February 19, 1980 that made an inter vivos transfer of the bulk of Mr. Davis’ estate to the foundation.
Mrs. Davis’ will was executed on March 3, 1979. She was adjudicated incompetent on September 13, 1979, and First National Bank of Fort Smith (hereafter “First National”) was appointed guardian of her estate.
After Mr. Davis’ death on May 25,1981, an inventory of the estate revealed under the 1980 will, Mr. Davis only had estate of $370.00, the balance having already been transferred by him to the charitable foundation under the trust agreement in 1980. First National, as legal guardian of the estate of Alline B. Davis, and his daughters, Chloe Ramsey and Jewel Swindle, challenged the 1980 will and trust agreement. As a result, on December 16, 1981, First National entered into a settlement agreement (hereafter “settlement agreement”) with Merchants, Bill Bateman, Evelyn Bateman, Chloe Ramsey, Jewel Swindle, and the trustees of the Alline and C.C. Davis Charitable Foundation. By decree dated January 21, 1982, the Chancery Court of Sebastian County approved the settlement agreement which, was signed by trust officers for First National and Merchants, Bill and Evelyn Bateman, Betty Chloe Ramsey, Jewel Swindle, Wayne Swofford (executor of Mrs. Davis’ estate), J. Michael Shaw (estates’ attorney), and W.J. Echols, Jr. (trustee of charitable foundation). The effect of the settlement agreement was:
(1) the 1980 will was voided;
(2) the 1980 inter vivos transfer by Mr. Davis of the bulk of his estate was voided and this property was brought back into the estate;
(3) $40,000 in trust income as payment to attorney P.H. Hardin for attorneys’ fees;
(4) $50,000 in trust income to Bill Bateman for services;
(5) $300,000 to Alline Davis;
(6) $300,000 to Alline Davis in unitrust form to be paid over to the Davis Charitable Foundation upon her death;
(7) $75,000 each to daughters, Chloe Ramsey & Jewel Swindle;
(8) the remainder of the estate after expenses to the Batemans.
Also, the settlement agreement expressly provided:
8. Betty Chloe Ramsey, Jewel Swindle, Bill Bateman, Evelyn Bateman, and their respective attorneys, John H. Fitzhugh, Lem Bryan, P. H. Hardin and Franklin Wilder, agree that the will prepared by Bruce Shaw executed by Alline B. Davis on March 3,1979, is the valid last will and testament of Alline B. Davis, and that neither they nor any persons associated with them will contest, challenge, or by any word or act question or impugn the validity of the Alline B. Davis will dated March 3,1979, or do any other thing to impede or impair the probate of such will as the last will and testament of Alline B. Davis.
11. This instrument includes all agreements of the parties, and there are no other representations, considerations or commitments between the parties other than those expressed herein. This agreement shall be binding upon the heirs and legal representatives of the parties.
Mrs. Davis died on July 29,1991, leaving an estate appraised at $881,570.00.
On July 31, 1991, Wayne Swofford and First National, co-executors named in Mrs. Davis’ will, filed a petition to probate her March 3,1979 will. This will left her entire estate to her husband should he survive her or to the Alline B. and C.C. Davis Charitable Foundation should he predecease her. No other gifts, bequests, or devises were included in the will. The petition for probate specifically listed the following surviving heirs:
Iva Hardie, sister
Alline B. and C.C. Davis Charitable Foundation
Sondra Lee, niece
Sharon Stewart, niece
Don Kreipke, nephew
Evelyn Bateman, niece
Doris Clyma, niece
Jean Morris, niece
Nell Scott, niece
Although the record appears silent on the matter, it is evident that the Davises’ two daughters, Betty Chloe Ramsey and Jewel Swindle, predeceased Mrs. Davis since they were not listed as surviving heirs on the petition to probate.
After notice was duly given to these survivors and published as required, the will was probated on August 5, 1991. All the survivors listed on the petition to probate except for the foundation contested the will by petition filed November 1,1991, on the basis that Mrs. Davis was incompetent and under the undue influence of third parties when the 1979 will was executed. Ms. Hardie was Mrs. Davis’ sister and the others are nieces and nephews.
The estate replied that Mrs. Davis, through her legal guardian, agreed to the settlement agreement and its terms, and, the persons now claiming to be the heirs of Alline B. Davis are in privity with their ancestor, and as such under the settlement agreement are estopped to deny the validity of the March 3,1979 will pursuant to which the property comprising the estate of Alline B. Davis is to pass at the time of her death to the Alline and C.C. Davis Charitable Foundation. Also, the estate argued that to permit the persons claiming to be heirs of Alline B. Davis to repudiate the agreement which their ancestor entered into with the Alline and C.C. Davis Charitable Foundation would constitute a fraud on the foundation. The estate also filed a motion for summary judgment and to transfer to chancery on the equitable issues of specific performance, estoppel, and fraud. In support of the motion for summary judgment, the estate attached the affidavit of Wayne Swofford, Vice President and Trust Officer of First National, who stated he had worked as a C.P.A. for twenty years for the Davises, that it was their wish to set up a charitable foundation with their estates, and that both were competent and possessed testamentary capacity when their foundation was created.
On December 19, 1991, Probate Judge Harry A. Foltz entered an order transferring the equitable issue to chancery and a separate order directing the clerk to assign the case in chancery to him “[bjecause part of this case will be tried in Probate Court by the undersigned judge and part of the case in Chancery Court, it is imperative that the same judge hear the case.”
The collateral heirs argued that since Mrs. Davis did not sign the settlement agreement herself, it was not binding on her pursuant to Ark. Code Ann. § 28-24-101(l)(c), “a contract to make a will or devise, or not to revoke a will or devise, to die intestate if executed after June 17,1981, can be established only by. . ,(c) a writing signed by the decedent evidencing the contract.”
On February 24, 1992, as chancellor, Judge Foltz granted the trust’s motion for summary judgment on the basis that the foundation was supported by Mr. Swofford’s affidavit and the remote heirs had not introduced any affidavits rebutting his statements; that Alline B. Davis was a proper party to the settlement agreement through her guardian; the settlement agreement induced the charitable foundation to give up rights and claims to Mr. Davis’ estate; that the will contestants are heirs at law of Alline B. Davis and as such stand in privity to her and are bound by the agreement. The chancellor found there was no genuine issue of material fact and ordered specific enforcement of the agreement and estoppel of the remote heirs from challenging the 1979 will.
On February 27, 1992, Judge Foltz as probate judge dismissed the will contest with prejudice on the basis of his findings as chancellor. His probate court order was appealed to this court, and his chancery court order was appealed to the court of appeals. Since both cases involved the same parties, issues, and subject matter, we consolidated the appeals by order dated June 29, 1992.
We most recently summarized the standard of review for summary judgment in Tullock v. Eck, 311 Ark. 564, 845 S.W.2d 517 (January 25, 1993):
The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Cordes v. Outdoor Living Center, Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). All proof submitted must be viewed in a light most favorable to the party resisting the motion and any doubts and inferences must be resolved against the moving party.
Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ark. R. Civ. P. 56(c). While there might well have been disputed issues of negligence had this case gone to trial, the only issue with which we are concerned is whether the statute of limitations was tolled by continuous treatment. As to the latter, there is no factual dispute. The question is thus whether Dr. Eck was entitled to judgment as a matter of law.
The standard of review for summary judgment is whether the evidentiary items presented by the appellee in support of the motion left a material question of fact unanswered. Wilson v. General Elec. Capital Auto Lease, 311 Ark. 84, 841 S.W.2d 619 (1992); Barraclough v. Arkansas Power & Light Co., 268 Ark. 1026, 597 S.W.2d 861 (1980). In appeals from the granting of summary judgment, we review facts in a light most favorable to the appellant and resolve any doubt against the moving party. Thomas v. Sessions, 307 Ark. 203, 818 S.W.2d 940 (1991). See Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992).
The central issue in this case is whether the remote heirs have the power to attack a court-approved settlement agreement. It should be noted that at the time the settlement agreement was executed, these remote heirs were not “interested persons” entitled to contest a will under Ark. Code Ann. § 28-40-113(a) (1987) because they would not have taken by intestate succession at that time since Mrs. Davis’ two daughters were still living. See Mabry v. Mabry, 259 Ark. 622, 535 S.W.2d 824 (1976) (brothers and sisters of testator were not interested persons where testator had adopted son living); Hawkins v. Hawkins, 218 Ark. 423, 236 S.W.2d 733 (1951) (just any collateral heir is not necessarily an “interested person” with a right to contest the probate of a will under Ark. Code Ann. § 28-40-113 (1987)).
We hold that the grant of summary judgment was proper because we agree with the chancellor that the settlement agreement is a valid, enforceable contract which Mrs. Davis’ guardian had the authority to enter into on her behalf. Ark. Code Ann. § 28-65-318(a) specifically provides for settlement agreements and for the guardians to execute them:
28-65-318. Compromise settlements.
(a) On petition of the guardian of the estate, the court, if satisfied that the action would be in the interest of the ward and his estate, may make an order authorizing the settlement or compromise of any claim by or against the ward or his estate, whether arising out of contract, tort, or otherwise, and whether arising before or after the appointment of the guardian.
Also, Ark. Code Ann. § 28-65-302(7) (1987) lists “consent to a settlement or compromise of any claim by or agáinst the incapacitated person or his estate” as a type of action which guardians must petition and obtain express court approval to carry out. Here, the probate court was petitioned and specifically approved the settlement and authorized the guardian to sign the settlement agreement as allowed by statute. We see no reason to overturn that approval.
We further hold that the chancellor was correct in finding that the appellants here are in privity with her and are therefore bound by the settlement agreement. Kennedy v. Quinn, 177 Ark. 1069, 9 S.W.2d 315 (1928). The settlement specifically stated, “This agreement shall be binding upon the heirs and legal representatives of the parties.” Our holding that privity exists is necessary to preclude possible claims to her estate in the future. We have long held that equitable estoppel binds the immediate parties and their privities by blood, estate, or contract. Vaughn v. Dossett, 219 Ark. 505, 509, 243 S.W.2d 565, 568 (1951) (citing Mason v. Dierks Lumber & Coal Co., 94 Ark. 107, 125 S.W. 656 (1910)); Simmons v. Simmons, 203 Ark. 566, 571, 158 S.W.2d 42, 45 (1942); Johnson v. Commonwealth Bldg. & Loan Assoc., 182 Ark. 226, 31 S.W.2d 136 (1930); McKenzie & Rumph, 171 Ark. 791, 286 S.W.2d 1022 (1926). See Ward v. Davis, 298 Ark. 48, 765 S.W.2d 5 (1989); Haynes v. Metcalf, 297 Ark. 40, 759 S.W.2d 542 (1988); Moorehead v. Universal C.I.T. Credit Corp. 230 Ark. 896, 898, 327 S.W.2d 385, 387 (1959). See also Phelps v. Justiss Oil Co., 291 Ark. 538, 726 S.W.2d 662 (1987) (quoting the Restatement 2d, Judgments, 43(b) (1980) for the rule that a judgment in an action that determines interests in real or personal property has preclusive effects upon a person who succeeds to the interest of a party to the same extent as upon the party himself).
The settlement agreement in question was a contract specifically allowed for by Ark. Code Ann. § 28-65-318 (1987). Assuming proper statutory procedures have been followed, we look on such a settlement agreement with favor as a means to avoid costly litigation over decedents’ estates and to bring the estate to a prompt and final close.
We hold that the settlement agreement before us effectively determined the respective rights of the parties and that the probate court was correct in bringing the Davis estate to a proper and final close.
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Carleton Harris, Chief Justice.
Don Kymes, a building contractor, entered into a contract to build a house for W. N. Rasmussen and his wife, Pearle E. Rasmussen, appellants herein. Appellee, C. J. Horner Company, Inc. supplied certain .materials provided within the contract for the alleged sum of $1,789.89. Kymes took bankruptcy and appellee sought recovery from the Rasmussens under the lien statutes. Appellants defended on the basis that appellee had failed to comply with the statutory requirements of Ark. Stat. Ann. § 51-613 (Repl. 1971). On trial, the court held that materials from Homer in the amount of $987.28 had been used in the Rasmussen house and judgment was granted for that amount; it was further provided that if the judgmént be not paid, one acre of appellants’ property described by metes and bounds should be sold as a matter of enforcing the lien. From the judgment so entered, appellants bring this appeal. For reversal, it is first asserted that the purported lien was defective because it was not sworn to as required by the statute. In the alternative, it is asserted that certain items for materials were erroneously allowed by the court, it not being established by the evidence that these materials were used in the Rasmussen house.
Under the view that we take, there is no need to discuss the second point, for we are firmly of the opinion that the decree must be reversed because of the failure of Horner to make the required affidavit.
Ark. Stat. Ann. § 51-613 (Repl. 1971) provides:
“It shall be the duty of every person who wishes to avail himself of this act (§§ 51-601, 51-604 — 51-626) to file with the clerk of the circuit court of the county in which the building, erection or other improvement is to be charged with the lien is situated, and within one hundred and twenty (120) days after the things aforesaid shall have been furnished or the work or labor done or performed, a just and true account of the demand due or owing to him, after allowing all credits, and containing a córrect description of the property to be charged with said lien, verified by affidavit.” [Our emphasis].
While we apparently have no cases exactly in point on the matter presently before us, we have held that substantial compliance with the lien statutes is sufficient for recovery; however, our cases clearly indicate that the making and filing of the affidavit are essential to the validity of a lien. In Georgia State Savings Association v. Marrs, 178 Ark. 18, 9 S.W. 2d 785, the question was whether a proper affidavit had been executed on behalf of W. T. Marrs who sought to enforce a materialmen’s and laborer’s lien upon several properties, and the question in the litigation was whether his lien was superior to certain mortgages held by the appellant company. There, the affidavit was made by Mrs. R. B. Amos, who was the bookkeeper for Mr. Marrs, and this court held that her affidavit was sufficient to meet the requirement of the law. The court then said:
“The applicable statute (§ 6922, C. & M. Digest) requires the lien claimant to file ‘a just and true account of the demand due or owing to him,’ and that it be ‘verified by affidavit. ’ But it is not required that the affidavit be made by the claimant himself. It is a sufficient compliance with the law if the affidavit is made and filed.”
The court cited the case of Terry v. Klein, 133 Ark. 366, 201 S.W. 801, stating:
“The claim of lien made by the interveners, Hayes-McKean Hardware Company, was sworn to before Bob Canton, who attached his seal as a notary public as a part of the jurat, but did not affix the words, ‘notary public,’ after his name, and did not give the venue of the affidavit by reciting where it was taken.
“We think the case of Railway Co. v. Deane, 60 Ark. 524, 31 S.W. 42, is decisive of this question. It was there held (to quote the syllabus): ‘Where, to an affidavit for appeal from a justice’s court otherwise sufficient, but expressing no venue, there is attached a proper jurat showing that the oath was administered to the affiant by a notary public, it will be presumed that the notary acted within his jurisdiction.’ ”
Subsequently, it was stated:
“The court said that swearing the affiant was the essential fact [our emphasis], and that if this were done and the officer administering the oath neglected to attest the fact, this would not render the affidavit a nullity, but that the defect might be cured by amendment. Fortenheim v. Claflin, Allen & Co., 47 Ark. 49, 14 S.W. 462.”
So, it is apparent that this cpurt has consistently considered the making of the affidavit to be essential. On direct examination, Mr. Horner testified that he personal ly took the account for lien to the clerk, and that he had signed it. The evidence of Horner on direct examination reveals the following:
“Q Did you ask that it be verified or signed where the Clerk’s signature is to appear?
A Well, I don’t know. The Clerk always signed them when I took them down there.
Q Did you make a request that he sign it or did you depend on the Clerk to sign it?
A I made the request, but I don’t know whether he did it or not. He didn’t?
Q No, it’s not signed. Did you make a request to the Clerk that he sign it?
A Yes, sir.
Q And file it?
A Yes, sir.
Q Did you pay cash for it or do you have a credit account?
A I paid in cash for it.”
On cross-examination, when Horner asked what he did when he walked into the clerk’s office, the record reveals the following:
“A I just went up to the front of the counter and laid it down and told them I wanted to file it.
Q Told who?
A The clerk.
Q Which clerk?
A I don’t know. One of them down there in the office.
Q Male or female?
A I guess it was a female.
Q But you don’t remember, do you?
A No, sir, this has been two or three years ago.
Q That’s right. But do you specifically remember what you said to the clerk or the clerk said to you and what you did?
A I took it in there and laid it down and ask her how much money she needed to file it and she told me a dollar. I paid it and went on back to the office.
Q And that’s all you did the whole time you were there? In other words you laid it down in the form that it’s there and ask her how much that it was and she said a dollar, and you gave her the dollar and then you walked out?
A Yeah.”
The re-direct examination reveals the following:
“Q. Mr. Horner, I ask you if you made a request of the clerk at the time that you b[r]ought the lien in that he verify or did you ask him, do you remember, did you ask him specifically, to him or her — or whoever it was — to verify or did you depend on them to verify it?
A Well, I guess I just depended on them to verify it.”
The lien account is neither verified by the clerk nor does the evidence show that any oath was given. Without question, under our cases, one or the other was essential. In Cox v. State, 164 Ark. 126, 261 S.W. 303 Justice Frank Smith, in quoting from Section 8 of the chapter on Affidavits in 1 R.C.L., p. 765, said:
“To make a valid oath or affirmation there must be some overt act which shows that there was an intention to take an oath or affirmation on the one hand and an intention to administer it on the other; for, even though such intention actually did exist, if it was not manifested by an unambiguous act, perjury could not be based thereon. If the attention of the person making the affidavit is called to the fact that it must be sworn to, and, in recognition of this, he is asked to do some corporal act, and he does it, the instrument constitutes a statement under oath, irrespective of any other formalities. ”
To present the picture clearly, let us say that the account filed by Horner contained a claim for some items which he knew he had not furnished to Rasmussen, such fact being provable by the prosecuting attorney. Could Horner have been convicted for perjury under the evidence heretofore set out of what transpired in the clerk’s office? To ask the question is but to answer it, for it is obvious that under the proof it could never be shown that he had sworn to a false material statement.
Actually, to hold with appellee in this litigation, would have the effect of doing away with the requirement of the statute for verification of the lien account, and we have neither the authority, nor the desire, to do this.
Reversed and dismissed.
Chancery courts may foreclose mechanics’ and materialmen’s liens. See Martin v. Blytheville Water Co. (1914), 115 Ark. 230, 170 S.W. 1019; Carr v. Hahn, (1917), 126 Ark. 609, 191 S.W. 232; and Sims v. Hammans (1922), 152 Ark. 616, 239 S.W. 19.
The signature does not appear, but testimony reflected that the description of the property which was attached covered his signature.
The same quote appears in Thompson v. Self, 197 Ark. 70, 122 S.W. 2d 182. | [
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Robert H. Dudley, Justice.
We dismiss this appeal without prejudice. The parties to this case are two orthopedic surgeons who entered into a partnership agreement in 1981 to own office space in a condominium office building and to own certain items of medical equipment, office equipment, and office furnishings in Fort Smith. In 1987, appellee notified appellant of his intention to retire from his medical practice and, pursuant to the partnership agreement, offered appellant the right to purchase the partnership property. Over two years later, the partnership still had not been terminated, so appellee filed this suit. After a trial on the merits, the chancellor entered an order finding that the real and personal property of the partnership should be sold at public auction, but withheld “final determination of the distribution of the proceeds of the sale, attorney’s fees and costs until after the sale has been conducted, if, in fact, the parties are unable to reach an agreement on these issues prior to the expiration of sixty days.” That order was entered on August 9,1991. On August 14, 1991, the chancellor supplemented the order and ruled that appellee owned 42.7 per cent of the partnership, appellant owned 57.3 per cent, and appellee owed the partnership almost $7,000.00 in expenses. However, the trial court did not set the amount of the attorney’s fee, and more important, ordered that “the real and personal property of the parties will be sold by a commissioner appointed by the court within sixty days from the date of this order rather than from the August 9 date of the previous order if the parties are unable to come to terms.” In short, the orders did not put the court’s order of sale into execution. That remains to be done in a subsequent order.
On September 6, 1991, appellant filed a notice of appeal from both orders. On September 12,1991, appellee filed a notice of cross-appeal. On September 18, 1991, the chancellor entered an order pursuant to Rule 54(b), stating that there was no just reason for delay and declaring that the two orders constituted a final judgment as to the matters addressed therein. Neither party filed a notice of appeal after the entry of the September 18,1991, order.
Appellee contends that Ark. R. App. P. 4, as construed in Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992), mandates dismissal of this appeal for failure to file a second notice of appeal after the certification under Rule 54(b). The argument is without merit. Appellant gave his notice of appeal within thirty days of the entry of the order and supplemental order from which he seeks to appeal. See Ark. R. App. P. 4(a). The Rule 54(b) certification states that there is no just reason for further delay and that the two previous orders constitute a final judgment as to the matters contained in them. Appellant does not appeal from the 54(b) certification. He gave a timely notice of appeal from the orders from which he seeks to appeal, and it was not necessary to give another notice of appeal after obtaining a certification that the orders from which he seeks to appeal are final orders pursuant to Rule 54(b). Accordingly, we do not dismiss for the reason argued by appellee.
However, we must dismiss the appeal for another reason. The orders are not final as to the claim. The trial court’s certification is in error in that regard. The rule that an order must be final to be appealable is a jurisdictional requirement that this court is obliged to raise even when the parties do not. Fratesi v. Bond, 282 Ark. 213, 666 S.W.2d 712 (1984). In cases involving court-ordered judicial sales of property, we have long held that if the decree puts the court’s directive of sale into execution, it constitutes a separable and “final” part of the litigation. In Parker v. Bodcaw Bank, 161 Ark. 426, 256 S.W. 384 (1923), we held that a decree foreclosing a mortgage and a later decree confirming the foreclosure sale were both final and appealable orders. The decree foreclosing the mortgage was rendered on September 22, 1922, and the decree confirming the sale was rendered on December 21, 1922. We held the appeal, which was perfected on March 29, 1923, to be untimely for the purpose of reviewing the decree of September 22, 1922. In Festinger v. Kantor, 264 Ark. 275, 277-78, 571 S.W.2d 82, 84 (1978), we wrote:
The test of finality, however, is not whether the order settles the issue of title as a question of law. To be final the decree must also put the court’s directive into execution, ending the litigation or a separable branch of it. On this controlling point Chief Justice Cockrill’s entire opinion in Davie v. Davie, 52 Ark. 227, 12 S.W. 558, 20 Am. St. Rep.
170 (1889), is applicable, but we quote only its especially pertinent language:
A judgment in equity is understood ordinarily to be interlocutory when inquiry as to matter of law or fact is directed preparatory to a final adjudication of the rights of the parties .... But, “where the decree decides the rights to the property in contest and directs it to be delivered up, or directs it to be sold, and the complainant is entitled to have it carried into immediate execution, the decree must be regarded as final to that extent, although it may be necessary for a further decree to adjust the account between the parties.”
****
In this case while the decree takes the form of a final order in adjudicating the parties’ proportionate interests in the land, it is apparent that the court has not fully adjudicated that branch of the cause. The relative interests of the parties in the land have been ascertained and determined, but... the court is yet to determine . . . what amounts shall be charged as liens upon the several interests, and whether there shall be a sale of some of the interests to satisfy the same. The decree does not direct its execution, but looks to further judicial action before that event. The plaintiffs can suffer no injury by awaiting the termination of the litigation.
Thus, a decree that orders a judicial sale of property and places the court’s directive into execution is a final order and appealable under Ark. R. App. P. 2(a)(1). When there is such an order, a certification under Rule 54 (b) is not necessary. Such a rule is very practical. Under it, the parties are able to appeal an order directing a judicial sale and have a determination of the issues at that time. If it were otherwise, and there were questions about the validity of sale, prospective bidders might not bid a reasonable amount because there would be a cloud over the matter, and no one wants to buy a lawsuit. Those issues can be finally determined under our procedure. As a separate matter, any questions concerning the validity and adequacy of the bids might be heard on a later appeal from the order confirming title.
Here, the chancellor only determined the property shall be sold “by a commissioner appointed by this Court within sixty days from the date of this order. . . .” Such an order did not place the court’s directive into execution. The chancellor must still appoint a commissioner and set a day and place for the sale, and, perhaps, set an attorney’s fee, before the directive can be placed into execution. Thus, the order is not appealable, and, accordingly, we dismiss the appeal without prejudice. | [
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Leflar, J.
The City of DeQueen, under authority of Act No. 71 of 1949 (Ark. Stats., 1949 Supp., §§ 19-4801 to 19-4812), adopted a city ordinance authorizing construction of a municipal gas transmission and distribution system, held a special election approving the ordinance by a vote of 956 to one, and is proceeding to sell bonds called for by the ordinance to finance the gas system. Plaintiff as a citizen and taxpayer asserted that Act 71 and the ordinance enacted under it are invalid and asked the Chancery Court to enjoin defendants Mayor, Recorder and aldermen of DeQueen (hereinafter identified as “the City”) from proceeding thereunder. The Chancellor sustained the City’s demurrer to the complaint, and plaintiff appeals.
Act 71 empowers municipalities not already served by any existing natural gas company to issue bonds for and to construct gas transmission and distribution systems, after approval by the electors at a special election, the bonds to be payable solely from revenues derived from the gas system and not to constitute an indebtedness of the municipality as such. The Act provides that “the notice, calling, publication and conduct of (the) election shall be governed by the provisions of Amendment No. 13 to the Constitution of 1874,” and the De-Queen election approving the gas system was so governed and conducted.
Plaintiff’s principal arguments for unconstitutionality are based upon Amendment 13, and are twofold: (a) that the Amendment includes no specific authorization to municipalities to construct gas transmission and distribution systems, and (b) that the proposed bonded indebtedness is not authorized by the Amendment. Our previous decisions have resolved these arguments against the plaintiff and in favor of defendant City.
Amendment 13 does not prohibit or relate to the incurring of indebtedness by cities when by its terms the indebtedness is not payable out of taxes but rather is payable altogether out of income or assets of the special and separable activity for which the debt is incurred. McCutchen v. Siloam Springs, 185 Ark. 846, 49 S. W. 2d 1037; Jernigan v. Harris, 187 Ark. 705, 62 S. W. 2d 5. “Self-supporting municipal activities may in a sense borrow on their own credit, independently of the city’s credit.” Williams v. Harris, Mayor, 215 Ark. 928, 934, 224 S. W. 2d 9, 12. In Robinson v. DeValls Bluff, 197 Ark. 391, 122 S. W. 2d 552, we sustained a municipal issue of bonds for construction of a barge terminal, the bonds being secured by and payable from the assets and income of the barge terminal alone. The fact that barge terminals are not mentioned in Amendment 13, just as gas systems are not mentioned, does not mean that indebtedness on their account is prohibtied. It is not prohibited when the indebtedness is of a self-liquidating type not controlled by Amendment 13. The proposed DeQueen bond issue is that type of indebtedness.
Plaintiff also argues that Act 71 is invalid under Article Y, § 23 of the Constitution insofar as it provides that “the notice, calling, publication and conduct of said election (at which the bond issue must be approved) shall be governed by the provisions of Amendment No. 13 to the Constitution of 1874.”
The words of Article Y, § 23, are:
“Sec. 23. Revival, amendment or extension of laws. No law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only; but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length. ’ ’ •
Section 23 does not prohibit the legislative drafting technique of cross-reference to other statutes governing related matters not actually “revived, amended, extended or conferred” by the particular enactment. “Such legislation, known as a reference statute, is quite common, and is uniformly upheld. It refers to another statute to regulate the procedure to make its provisions effective, and legislation would be very cumbersome and difficult if such acts were not held valid.” Jernigan v. Harris, 187 Ark. 705, 710, 62 S. W. 2d 5, 7. See Watkins v. Eureka Springs, 49 Ark. 131, 4 S. W. 384; State v. McKinley, 120 Ark. 165, 179 S. W. 181; Potashnick Local Truck System, Inc., v. Fikes, 204 Ark. 924, 165 S. W. 2d 615. The quoted reference in Act 71 to the election provisions of Amendment 13 was both permissible and effective.
Plaintiff next points out that the Mayor of DeQueen at once after the election issued a proclamation declaring the results and announcing that the election would be final unless contested within thirty days. It is- urged that there was no justification in law for this limitation upon the time within which a contest might be initiated. Whether that interpretation of the law as to the time limit for a contest is correct or not, the fact remains that the contest was initiated within the thirty days, and plaintiff cannot now complain. He has contested the election, and there is nothing to indicate that his contest would have been any more effective had it been delayed, By filing the contest when he did, he waived any right he may have had to wait until later to file it.
Plaintiff, also asserts that the City has petitioned the Public Service Commission for authority to extend the services rendered by the proposed gas system to contiguous rural areas, including persons living along the route of the main gas transmission line between Okay and DeQueen, and that the Commission has taken this petition under advisement. The contention is that it would be unlawful for the City to render such service to these rural areas.
Our statute (Ark. Stats., § 73-264) permits any city which operates “facilities for supplying a public service or commodity to its citizens” to “extend its service into the rural territory contiguous to such municipality”, subject to'Public Service Commission approval. In Arkansas Utilities Co. v. City of Paragould, 200 Ark. 1051, 143 S. W. 2d 11, we pointed out that compliance with this statute, by securing Public Service Commission approval, is in the ordinary case an absolute prerequisite to the extension of municipally operated utility services into contiguous rural areas. Also see Yancey v. City of Searcy, 213 Ark. 673, 212 S. W. 2d 546. In the present case the City has quite properly filed its petition for authority thus to extend its services with the Public Service Commission. That is the forum in which the petition must be passed upon. The complaint asserts no facts that would give the Chancery Court any jurisdiction to pass upon that petition which was properly filed and pending elsewhere.
The City’s demurrer to the plaintiff’s complaint was properly sustained in the Chancery Court, and the decree of that Court is affirmed.
Another statute, Ark. Stats. § 19-2318, first enacted in a somewhat different form in 1875, authorizes cities to own and operate gas distribution systems, as well as other types of utility services, at least for some purposes. Also, see, Ark. Stats., § 20-316. | [
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Steele Hays, Justice.
The appellant, Reba Cunningham, and the appellee, Malcolm Cunningham, entered into a separation agreement on October 2, 1975. Commencing in October 1975, the appellee agreed to pay the appellant $500 per month in child support as long as the appellant “shall have custody of the children or either of them.” The Cunninghams divorced on August 18, 1976, with the divorce decree incorporating the October 1975 property settlement agreement.
The appellee stopped paying child support on March 2, 1978, due to financial difficulties. The appellee filed for social security retirement benefits and the appellant eventually received monthly checks for support of the children from the Social Security Administration. On April 27, 1987, the appellant petitioned the Chancery Court of Pope County to grant a judgment for the arrearage in child support due from April 1982, at $500 per month, less the amount of the social security payments received each month by Reba Cunningham.
In a letter decision, the chancellor ruled that no agreement to modify the property settlement agreement occurred and that the social security payments received by the appellant should be credited in lieu of the appellee’s child support responsibilities. Based on the theory of estoppel and/or waiver, the chancellor also held the appellant was not entitled to the child support arrearages. This appeal arises from the chancellor’s ruling that the appellant may not recover child support arrearages. After considering the arguments on appeal, we reverse and remand.
In Sage v. Sage, 219 Ark. 853, 245 S.W.2d 398 (1952), we adopted the rule that chancery courts may remit accumulative payments of child support only under limited circumstances. In Pence v. Pence, 223 Ark. 782, 268 S.W.2d 609 (1954), we affirmed the chancery court’s denial of child support arrearages on the basis that the custodial parent, by her own conduct, interfered with the father’s (non-custodial parent) visitation rights.
Additionally, in Sharum v. Dodson, 264 Ark. 57, 568 S.W.2d 503 (1978), we recognized the mother’s right to unpaid installments of child support except during periods when she rendered the father’s rights nugatory. We reiterated in Holley v. Holley, 264 Ark. 35, 568 S.W.2d 487 (1978), that the chancery court is not required to render judgment for arrearages accruing for unpaid child support when the mother, having custody, deprived the father of temporary custody or visitation rights by failing to comply with the terms of a valid decree governing those rights.
In Bethell v. Bethell, 268 Ark. 409, 597 S.W.2d 576 (1980), the court considered an ex-wife’s entitlement to alimony arrearages. The court recognized the analogous nature of cases dealing with alimony and child support arrearages and said that within limitations attributable to the overriding concern for the welfare of children, cases involving child support arrearages may be considered as precedential in disputes over alimony arrearages and vice versa, stating:
. . . from Sage, Pence and our subsequent decisions, we can say that, as a general rule, an ex-spouse is entitled to judgment for all past due installments of alimony awarded by decree of divorce, not barred by the statute of limitations, unless equity cannot lend its aid because of the actions or conduct of the ex-spouse seeking judgment.” [Emphasis added].
In this case, the appellant did not interfere with the appellee’s visitation rights, nor did she defy the divorce decree. The only conduct which arguably mitigates against equity lending its aid was that the appellant delayed in pursuing her rights to obtain judgment for the accrued child support payments. This fact alone will not justify defeating the appellant’s right to the accrued child support installments.
The chancellor cited Bethell v. Bethell, supra, relying on the theories of estoppel and waiver in denying the judgment for child support arrearages. However, in Bethell the parties had entered into an oral agreement altering the alimony payments and the chancellor based his remission of the arrearages on the basis of that agreement and Dr. Bethell’s reliance upon the agreement. In this case, the chancellor in his later decision stated, “I am of the opinion that there was no firm agreement by the parties to modify the Separation Agreement . . .” Therefore, Bethell provides no precedent. In this case, there was no modification agreement, and hence no potential reliance upon which the chancellor might base his denial of judgment on estoppel or waiver.
We conclude that the appellant is entitled to the child support arrearage. Since we review chancery cases de novo, we would ordinarily determine the amount due. However, we are unable to arrive at that figure reliably on this record and therefore we remand to the chancellor to determine the correct amount.
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Hart, C. J.,
(after stating the facts). At the outset it may be stated that the present suit is direct attack against the validity of the assessments and the organization of the district because it was commenced within thirty days as required by statute. Williams v. Sewer Imp. Dist. No. 86, 180 Ark. 510, 22 S. W. (2d) 405 ; and Yates v. Phillips, 180 Ark. 709, 22 S. W. (2d) 559.
The first ground upon which the validity of the organization of the district is assailed is that the petition for the improvement and the ordinance creating the same are too indefinite as to the kind of materials to be used in the construction of the proposed improvement. The record shows that the petition for the improvement and the ordinance establishing the district both provide that the paving shall be done in the manner and of the materials that the commissioners of the district shall deem for the best interest thereof. A majority of the property owners in value signed the petition for the proposed improvement vesting- the commissioners with a large amount of discretion as to the manner in which the improvement should be constructed and the materials of which the pavement should be made. Under our decisions the validity of the organization is not impaired thereby, and the commissioners may exercise the discretion thus left to them. If the property owners desired to limit or restrict the powers of the commissioners as to the materials to be used and the manner of constructing the • improvement, they should have done so by specifying with particularity in the petition the 'kind of materials to be used and the manner of constructing the proposed pavement. McDonnell v. Improvement District No. 145, Little Rock, 97 Ark. 334, 133 S. W. 1126 ; and Bostick v. Pernot, 165 Ark. 581, 265 S. W. 356.
It is next insisted that the order of the county court incorporating the town of Mena in which the improve- * ment district was organized contained no description of the land within the proposed limits of the city, but merely referred to a map which is not on file in the office of the city clerk or of the county clerk. We do not think this fact would invalidate the district. The town of Mena was duly incorporated under the statutes of Arkansas. The order refers to a map of the town, and the petition and ordinance for the proposed improvement district show definitely and certainly that the district was laid out in accordance with the map of the town.
Finally, it is insisted that the assessment of benefits is arbitrary and discriminatory because the assessors . practically followed what is called the front-foot rule.
In Seiz v. Paving District No. 1 of McGehee, 173 Ark. 245, 292 S. W. 133, following our earlier decisions, it was held that under our Constitution, the assessment of benefits cannot be made on what is commonly known as the front-foot rule, but all proper elements of benefits, including the frontage of the property, the valuation of the property, the valuation of the building on it, etc., must be considered by the assessors in making their assessments.
In Lewellyn v. Street Improvement District of Russellville, 172 Ark. 496, 289 S. W. 470, it was held that even in a direct attack an assessment made on a front-foot basis is not void on its face because such a basis of assessment may coincide with the actual benefits to the property. The reason is that the question of benefits is to be ascertained from, tbe facts in each particular case; and the surrounding circumstances, as developed by the proof, may show that there is a corresponding special benefit to the property assessed when the assessment is made under the front-foot rule.
Here, there is no uniformity of benefits, and the examination of the evidence shows that the advantages to the several lots to be derived from the paving are unequal. A considerable number of the lots are vacant. Some of them have two or three lots appurtenant to one dwelling house, and many of the houses are small and are only used as dwelling houses. Hence, under the proof introduced, the situation of the property, as well as the houses on it, are not so that there can be any uniformity or equality of benefits under a front-foot rule of assessment.
It is true that the assessment here made was not wholly according to the front-foot rule. The table prepared by the engineer of the district shows that ninety per cent, of assessment of benefits was on frontage and ten per cent, on assessed valuation for State and county purposes. This was practically an assessment according to the front-foot rule, under the facts proved, and the situation of the property being so that such an assessment could not, in any sense, confer uniformity of benefits, it must necessarily be discriminatory in its character. We are of the opinion that under the facts shown by the record the board of assessors was practically guided by the frontage of the property in making the assessment of benefits. The proof in the case shows that the lots or parcels of land in the district were not so situated as to admit the application of such a rule. Hence such an assessment according to frontage could not and did not apportion the expense according to the benefits. Therefore the decree will be reversed and the cause will be remanded with directions to the chancery court to hold the assessment invalid as being made on the wrong basis, and for further proceedings, according to the principles of equity and not inconsistent with this opinion.
Crawford & Moses’ Dig’., § 5668 (Rep.). | [
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Carleton Harris, Chief Justice.
This appeal relates to a suit for refund of franchise tax assessments totaling $46,129.74, which appellant, Gulf Oil Corporation (hereinafter called Gulf) paid under protest for ¿he years 1970, 1971, and 1972. In 1968, appellant amended its Articles of Incorporation so as to provide for a two for one stock split by reclassifying and changing its outstanding shares of stock from par value of $8.33 1/3 per share to no-par $4.16 2/3 per share stated value. In 1969, Gulf duly filed its franchise tax reports and paid taxes in the total amount of $12,349.62 for those years. This amount was computed by Gulf on the basis that the reclassification of its stock from par value to no-par stated value did not change the amount of capital of the corporation represented by its no-par stated value shares of stock. Appellee refused to accept these payments on the basis that Ark. Stat. Ann. § 84-1837 (Repl. 1960) required that the value of no-par stock be computed at $25.00 per share and an additional payment from Gulf was demanded in the amount of $61,708.12 covering the aforementioned period. This amount was paid under protest. The commissioner was requested to conduct an informal hearing for the purpose of determining the proper basis for the computation of the amount of taxes due, and at such hearing, Gulf contended that under the statute, the commissioner possessed discretionary authority to disregard the presumed statutory value of $25.00 per share and to compute the tax on the basis of the aforementioned stated value of the no-par value stock. The commissioner disagreed, holding that he was required under the aforementioned statute to compute Gulf’s franchise taxes on the no-par value stock on a basis of $25.00 per share. Suit was instituted by appellant in the Pulaski County Chancery Court wherein judgment was sought for the asserted overpayment, and Gulf also sought a restraining order restraining appellee from assigning for franchise tax purposes an arbitrary value of $25.00 per share on the no-par stated value stock. Appellee demurred to the complaint, which demurrer was sustained by the trial court, and appellant, electing to stand upon the complaint, same was dismissed for want of equity. From the decree so entered, appellant brings this appeal. For reversal, three points are asserted which we proceed to discuss.
It is first contended that the Corporate Franchise Tax Act, Act 304 of 1953 (Ark. Stat. Ann. § 84-1833— 84-1842 [Repl. I960]), made decisive changes in the substance and administration of the Corporate Franchise Tax Act then in existence, Act 367 of 1923, by creating only a rebuttable presumption as to the value of no-par value stock and by granting appellee discretionary authority to compute the amount of franchise tax on the basis of the stated value of said no-par stock. This argument is based on the fact that the present statute, heretofore cited, uses the phrase “such shares of no-par value shall be deemed [our emphasis] to be of the par value of Twenty-five Dollars ($25.00) per share”, while Act 367 of 1923 used the language “such shares shall be taken [our emphasis] to be of the par value of Twenty-five Dollars ($25.00) each.”
In State v. Margay Oil Corporation, 167 Ark. 614, 269 S.W. 63, this court held that the 1923 act was valid; that the state may make reasonable classifications of corporations for taxing purposes if all corporations of the same class are treated alike, and further held that the $25.00 per share figure given no-par value stock was reasonable. There was apparently no contention on the part of Margay that the words “be taken” created anything other than a conclusive presumption. In Gilliland Oil Co. v. State, ex rel Attorney General, 171 Ark. 415, 285 S.W. 16, we said:
“The question of the validity of the act of 1923, supra, fixing the taxable value of nonpar value stock, and the question of the application of that statute to foreign corporations, must be treated as foreclosed by the decision of this court in State v. Margay Oil Corporation, 167 Ark. 614.”
On appeal to the United States Supreme Court, that court, in a short Per Curiam, affirmed Margay on the authority of Roberts & Schaefer Co. v. Emmerson, 271 U. S. 50. In the cited case, the court said:
“The only question with which we need be concerned is whether there are such differences between the two privileges to issue the two classes of stock, as to constitute a proper basis for classification for purposes of taxation, so that the amount of the tax in the one case may be based on the issue price of the stock, and in the other upon the maximum price at which it may be issued, regardless of the price at which it actually is issued.”
The court held there was such a basis.
Accordingly, our statute which used the words “be taken” has been held valid, and the court has said that a state has the right to make reasonable classifications; this, of course, included our own classification wherein the value of no-par stock was set at $25.00 per share.
Though admitting that under the 1923 act, there was a conclusive presumption that no-par value stock was to be taxed at the value of $25.00, the commissioner having no discretion to find otherwise, appellant contends the use of the word “deemed” in the present statute only creates a rebuttable presumption and the commissioner is free to follow or reject the $25.00 figure.
It is asserted that Section 6 of Act 304 (Ark. Stat. Ann. § 84-1838), when read in conjunction with Section 5 (Ark. Stat. Ann. § 84-1837) of the act, supports this construction. We do not accept this argument for we agree with appellee that Section 6 refers back to Section 4 (Ark. Stat. Ann. § 84-1836). _
We do not attach the importance to the change from “be taken” to “deemed” that is argued by appellant. In the first place, we do not have a situation where only one word was changed; rather, the entire section has been re-written and there have been numerous changes in words used. In the next place, practically all judicial construction of the word “deemed” is contrary to the argument of appellant. Only one case is cited holding with appellant, viz., the North Dakota case of Kleppe v. Odin Township, 169 N.W. 313, where the district court construed the word “deemed” to be a disputable presumption. In Harder v. Irwin, 285 F. 402, the District Court for the Northern District of New York, said:
“The word ‘deemed’ has been judicially defined. In Leonard v. Grant (C. C.) 5 Fed. 11, 16, it is stated that:
‘ “Deemed” is the equivalent of “considered” or “adjudged,” and therefore whatever an act requires to be “deemed” or “taken” as true of any person or thing, must, in law, be considered as having been duly adjudged or established concerning such person or thing, and have force and effect accordingly.’
“In U.S. v. Doherty, (D. C.) 27 Fed. 730, 734, it was thus defined:
‘ "‘Deem” means “judge;” “determine on considera-uon.” The primary meaning of the word is to form a judgment; to conclude on consideration.’ Words and Phrases, First Series, ‘Deem.’
“There are several other judicial expressions of the word ‘deemed,’ among them being in Walton v. Cavin, 16 Q.B. 48, 81, where it was stated that where a person was ‘deemed’ to be a soldier it must be understood to mean that he was thereafter to be taken in that capacity. Also, in Cardinel v. Smith, 5 Fed. Cas. 45, 47 No. 2, 395, the statute provided that dealers in canned goods under certain circumstances shall be deemed to be manufacturers and the court stated that they were to be held liable as manufacturers, notwithstanding that they were not such in fact. Other cases to the same effect are Lawrence & Co. v. Seyburn, 202 Fed. 913, 121 C.C.A. 271; Michel v. Nunn (C.C.) 101 Fed. 423, 424.”
In H.P. Coffee Company v. Reconstruction Finance Corp., 215 F. 2d 818, the question of the meaning of the word “deemed” arose and the court stated:
“It is said that the word must be construed as raising only a rebuttable presumption that the subsidy has been paid on all coffee which an importer has in his terminal inventory, and that this presumption disappears on proof by an importer that, in fact, he has received no subsidy payments thereon. This contention flies directly into the teeth of the generally accepted definitive import of the word ‘deemed’ and almost unanimous judicial determination that the word, when employed in statutory law, creates a conclusive presumption. E.g., United States v. Davis, 1 Cir., 50 F.2d 903; Harder v. Irwin, D.C., 285 F. 402; Intagliata v. Shipowners & Merchants Towboat Co., Cal. App., 151 P. 2d 133, subsequent opinion 26 Cal. 2d 365, 159 P. 2d 1; King v. McElroy, 37 N.M. 238, 21 P. 2d 80; Commonwealth v. Pratt, 132 Mass. 246. See 11 Words and Phrases, Deem, pp. 478 - 482. Absent qualifying language, or ambiguity, we must give to the word ‘deemed’, as employed in the emphasized language of paragraph 1 (f) (iii), its natural import.”
We cannot agree that there is significance in the use of the word “deemed” rather than “taken”, and accordingly find no merit in this contention, holding that the language of the act creates a conclusive presumption as to the value of the corporation’s no-par stock.
It is next asserted that if the tax act in question created a conclusive and irrebuttable presumption, Amendment Fourteen to the United States Constitution is violated, and the act is unconstitutional. Appellant calls attention to the cases of Schlesinger v. Wisconsin, 270 U. S. 230 (1926), Heiner v. Donnan, 285 U. S. 312 (1932), and Mourning v. Family Publication Service, 411 U. S. 356. In Schlesinger, the court held that a conclusive statutory presumption that all gifts of a material part of a decedent’s estate made by him within six years of his death were made in contemplation of death, created an arbitrary classification and conflicted with the Fourteenth Amendment. In Heiner, the court held a congressional act violative of the Fifth Amendment, said act creating a conclusive presumption that gifts made within two years prior to the death of the donor were made in contemplation of death, and we cannot see that Mourning (which dealt with the Truth in Lending Act) adds anything to the holdings in those cases. Of course, none of these cases dealt with a franchise tax and the most recent case cited by appellant, Vlandis v. Kline, et al., 412 U. S. 441, decided by the United States Supreme Court on June 11, 1973, deals with the residency of students attending state supported institutions in Connecticut. In fact, we find no recent case involving a franchise tax. Both appellant and appel-lee agree that in Shanahan v. United States, 447 F. 2d 1082, the Circuit Court of Appeals for the Tenth Circuit, in construing the internal revenue statute, stated that a conclusive presumption will be upheld so long as it is reasonable. Appellant recognizes that there are statutes in other jurisdictions applying a value to shares of no-par stock, but asserts that this fact is not persuasive.
Let it be remembered that appellant voluntarily brought itself within the statute at issue, having full knowledge of the law as it had existed since 1953, it having paid the tax on par value stock until 1969. In H. P. Coffee Company v. Reconstruction Finance Corp., supra, the complainant contended that if the term “deemed” was construed as a conclusive presumption, such construction would conflict with the due process clause of the constitution. Though this case dealt with a contract between the parties, we think the observation of the court, in holding contrary to this contention, was interesting. The Court said:
“Having brought itself within the terms of the provisions by its own voluntary act, complainant cannot say that the logical result offends against the due process clause.”
Actually, the question here at issue was decided adversely to the present appellant when we disagreed with its argument relative to there being a difference between the meaning of the words “deemed” and “be taken”, and accordingly held that “deemed” creates a conclusive presumption. Such construction leaves the holding in Margay controlling.
Finally, it is contended that if a conclusive and ir-rebuttable presumption as to the value of no-par stock was created by the statute, then said franchise tax as applied to corporations with no-par stock is unconstitutional since it creates a discriminatory classification between tax assessment at par as opposed to no-par stock because no practical or legal differences exist between the two classes of stock. The view taken by appellant is contrary to Roberts & Schaefer Co. v. Emmerson, supra, and New York v. Latrobe, 279 U.S. 421. We have already quoted from Emmerson, and in the last mentioned case, the court said:
“It is said that the tax computed on the number of non-par shares at a flat rate may bear little relation to the property and business of the corporation within the state and consequently corporations having like property and business within the state, but with a different non-par capitalization, may be required to pay a different tax. But this is equally true of corporations having par value stock, even though full value be paid in on its issue. Par value and actual value of issued stock are not synonymous and there is often a wide disparity between them. Par value has long been a familiar basis of computing a franchise tax upon foreign corporations, and when otherwise unobjectionable has been repeatedly upheld by this Court.***
“The kind and number of shares with which a foreign corporation is permitted to carry on its business within the state is a part of the privilege which the state extends to it and is a proper element to be taken into account in fixing a tax on the privilege. It may be assumed that if the doing of business with a greater number of non-par shares is not deemed by the taxpayer to be a valuable privilege, it will reduce the number of shares as the statute permits. ***
“Nor is such a tax to be deemed a denial of equal protection because a different measure or method of computing the tax is applied to corporations having non-par stock from that applied to corporations having stock of par value.”
Here, too, if appellant, as stated in its point for re-ver sál, feels that there is no difference between the two classes of stock, it is, of course, free to return to the par value stock. And, if there is no difference, the question immediately arises as to what potential benefits necessitated the change. Without going into detail, suffice it to say that we do not agree that there are no longer any differences between the two types of stock; while the differences may not be as distinct or as easily ascertainable as at the time of Roberts & Schaefer Co. v. Emmerson, supra, and State v. Margay Oil Corporation, supra, nonetheless, differences do remain. For instance, one of the vital differences between par value and no-par value stock lies in the method of fixing the consideration to be paid by the subscriber to the capital of the corporation, i.e., a main difference is that par stock must be issued for at least its par value, while no-par stock may be sold for any consideration fixed by the directors. At any rate, we do not detect such changes as would vitiate the Supreme Court decisions in Emmerson and Margay; if, however, we are incorrect in this conclusion, the proper place for nullification of the rulings there rendered is the United States Supreme Court — not this court.
Affirmed.
Fogleman J., concurs.
The original suit was brought against A. B. Hervey, Jr., Acting Director of the Department of Finance and Administration, but was revived in the name of Richard R. Heath, Director of such department as the successor in office to Hervey.
Pertinent provisions of those sections read as follows:
“Section 4. ***Each corporation, the tax for which is fixed in lump sums by this act, which shall fail or refuse to file its report or shall fail or refuse to furnish the information necessary to the proper determination of the tax hereunder on or before June 20th of the reporting year, shall pay the maximum tax herein provided for corporations of this particular classification, and each other corporadon which shall fail or refuse to file its report or shall fail or refuse to furnish the information necessary to the proper determination of the tax due hereunder on or before June 20th of the reporting year, shall pay a tax at the rate herein provided based on its entire outstanding capital stock whether or not all or only a part of its capital is employed in Arkansas, and the Commissioner shall accordingly, on the basis of information available to him from whatever source, including prior reports, charge and collect such tax. ***
“Section 5. In any case in which the par value of the shares of a corporation is required to be stated in any report required' under the provisions of this act, if such shares are without par value, the number of such shares shall be stated, and, for the purpose of computing the franchise tax by this act pres cribed, such shares of no par value shall be deemed to be of the par value of Twenty-five Dollars ($25.00) per share.
"Section 6. The Commissioner, from the facts reported and from any other facts coming to his knowledge bearing upon the subject, shall compute the amount of the tax by each of said corporations at the applicable rate or rates hereinbefore provided, *#*”.
From appellant’s brief:
“We are also familiar with statutes from other states which apply a presumed value to each share of no-par stock which said statutes are completely irrelevant to a correct interpretation of Ark. Stats. 84-1837. We are not challenging the constitutionality or reasonableness of those statutes. Such statutes are not persuasive in this case unless appellee can prove the constitutionality and reasonableness of each of those statutes, as applied to the facts and law involved herein.” | [
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McHaney, J.
On October 15, 1928, appellee sold appellant Model 10-70 Victrola macbine and a Model 9-55 combination radio and Victrola at a price of $1,810, of which $110 was paid in cash, and for the balance a title retaining mote was given payable in seventeen equal monthly installments of $100 each, the first to become due and payable urn November 1, 1928, and monthly thereafter. Appellant paid three of the installments and defaulted on the others. This suit was instituted to recover the balance due with interest and to impound the property subject to the orders of the court. The trial resulted in a verdict and judgment in favor of appellee for the full amount sued for, and a lien was fixed on the property which was ordered sold to satisfy said judgment.
No question of fact is involved in this case. It is urged that the court committed reversible error in permitting appellee to play and demonstrate the Victrola machine in the presence of the jury without first showing that the Victrola was in substantially the same condition as it was when taken from appellee, and also that the court erred in its oral instructions to the jury. Appellant defended the action on the ground that the machine purchased was wholly unfit for his purposes. He filed a cross-complaint seeking to recover the $410 in cash payments he had made.
As to the first ground for reversal above mentioned, regarding the playing of the Victrola in the presence of the jury, we think no error was committed in this regard. The proof showed that the Victrola was in substantially the same condition it was when taken from appellant. It was repossessed on April 12 by the sheriff’s office, and to save storage it was placed in: the storehouse of appellee. It was sealed and wired at that time and remained in that condition until November 16, when the seal was broken for the purpose of demonstrating it to witnesses intended to be used to testify at the trial the next day. At that time they found it necessary to replace the tension spring which had fallen down and to make some adjustment of the reproducer, all requiring about ten minutes. Otherwise the machine was shown to be in the same condition as when taken by the sheriff. It was within the discretion of the court to allow a demonstration of the Victrola before the jury. In permitting the demonstration to be made the court necessarily found that the machine was in substantially the same condition as when taken from appellant. St. L. I. M. & S. Ry. Co. v. McMichael, 115 Ark. 101, 171 S. W. 115 ; 22 C. J. 776.
It is next said the oral instructions of the court were erroneous. The court told the jury in the instructions complained of that where a sale is made the purchaser has two rights regarding the property, if it is not reason ably fit for the purpose intended: first, to rescind the contract, surrender the property and recover his money; and, second, retain the property and recoup his damages for the deficiency in the property, when sued for the purchase price; that appellant elected to pursue the second remedy, and that, if they found the property was reasonably fit for the purpose intended, they would find for the appellee. On the other hand, if they found that it was not reasonably fit for the purpose for which it was intended, not substantially according to the contract, then they would find for the appellant on his claim for damages, not mere minor adjustments or defects, but substantial defects that would make it unfit for use; that the measure of damages, if they found for appellant, was the difference between the value in good condition as represented and the value in its deficient condition, if it was deficient, and to render a judgment for the appellant for such difference. They were further told that, if they found that appellant was entitled to damages on his counterclaim, then they would reduce the amount due on the note, $1,400, by the amount of damages they found due him, and if the damages equalled the whole $1,400 they would find for the defendant. Several complaints were made against this instruction, but we think it unnecessary to take them up and argue them separately, as we have concluded the instruction as a whole states the law correctly. One complaint is that it precluded appellant from recovering the $410 paid in cash on the machine. Conceding this to be true, appellant cannot be prejudiced by it, for the jury were permitted to offset appellant’s damages up to the amount of $1,400. It found he was not damaged at all. It evidently found that appellant failed to make out a case an its cross-complaint.
. We find no error, and the judgment is affirmed. | [
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John A. Fogleman, Justice.
Appellants Ronnie West and Gary West were convicted by a jury and sentenced to life imprisonment for the rape of a twenty-year-old woman. They raise the following points for reversal:
I. The trial court erred in refusing to allow appellants to pursue the source of the information gained by the Sheriff’s Office leading them to suspect the appellants and in refusing to require the identity of the informant to be made known.
II. The trial court erred in ruling that the picture displays shown to the prosecuting witnesses were fair, and in ruling that there was probable cause for the arrest of appellants.
III. The trial court erred in refusing to allow a defense witness to testify as to the findings of his investigation concerning two persons in possession of a truck identical to one described by the prosecuting witnesses and who had been suspects in this case.
IV. The trial court created prejudicial error by cross-examining a defense witness in a manner that impugned his credibility.
The prosecuting witness testified that on November 22, 1972, at approximately 11:00 p.m., while she and a male companion were in an automobile parked near a construction site, a pickup truck containing three men pulled in front of the vehicle she and her escort were occupying. She said two of the individuals, who she identified as appellants Ronnie and Gary West, got out of the truck and approached the car. She stated the two men said they were security guards for the construction company and ordered the victim and her companion to get out of their vehicle to be searched. She related that one of the men produced a knife, that her companion was knocked unconscious and that she was raped by both Gary and Ronnie West, aided by the third man.
Since we find reversible error on Point IV, we will treat it first. As their final witness at the trial, appellants called Officer Gary Stracener, Jacksonville Police Department, to testify concerning an investigation he had made to locate a pickup truck which matched the description given to sheriff’s officers by the victim and her escort. On direct examination, Stracener said a pickup truck which fit this description, belonging to Kenneth Smith, had been reported by Smith as stolen on November 29, 1972. He testified the truck was later recovered in the possession of Raymond Raynard and Jerry Maxie, one of whom was related to Smith, and that charges against the two were dropped. The following colloquy then ensued:
Q All right. James, did you, did you look into James Raymond Raynard and the Maxie boy any further?
A Yes, I did.
Q What did your investigation reveal?
A I found that on June 18th, 1972, there was a warrant issued by—
THE COURT:
(Interposing) Just a minute. Does that have anything to do with this case?
MR. McARTHUR: [Defense Counsel]
It has something to do with the individuals that he’s talking about, Your Honor. I think it is referable to this case.
MR. MAZZANTI [Deputy Prosecuting Attorney]
Your Honor, those individuals are not on trial here today.
MR. McARTHUR:
That’s exactly my point.
THE COURT:
How many trucks like that are there in this county?
A I don’t know offhand, Your Honor.
THE COURT:
How much were you paid to come up with this information?
MR. McARTHUR:
Your Honor, I object to this. I’ll tell you, but I will object to it. I think the Court is interfering in the case at this point and I would ask for a mistrial.
THE COURT:
Denied.
MR. McARTHUR:
He’s been paid nothing, if the Court wishes to know.
THE COURT:
Do you do this as a Jacksonville Police Officer?
A No, sir, I don’t. I retired from investigating.
It is well established that the trial court may, in the interest of justice, direct questions to a witness calculated to elicit the truth concerning the subject matter being investigated, if they are carefully framed in a manner not indicative of any opinion on the merits of the controversy. New v. State, 99 Ark. 142, 137 S.W. 564. The trial court has some discretion in examining witnesses to clarify their testimony, and when no prejudice appears there is no abuse of that discretion. Miller v. State, 250 Ark. 199, 464 S.W. 2d 594; Clubb v. State, 230 Ark. 688, 326 S.W. 2d 816. However, appellants are correct in their contention that the questioning by the trial judge in this case reflected on the credibility of the witness and the weight to be given his testimony.
In a jury trial there is probably no factor that makes a more indelible impression on a juror than the attitudes, statements and opinions of the trial judge. To them, his word is the law. McMillan v. State, 229 Ark. 249, 314 S.W. 2d 483. The trial judge should always preside with impartiality and must be cautious and circumspect in his language for it is the jury that is the sole judge of the facts and the credibility of witnesses. Fechheimer-Kiefer Co. v. Kempner, 116 Ark. 482, 173 S.W. 179; Sharp v. State, 51 Ark. 147, 10 S.W. 228, 14 Am. St. Rep. 27. Because of his influence with the jury, remarks by the trial judge may tend to prejudice a litigant by destroying the weight and credibility of testimony in his behalf in the minds of the jury. Although the judge may not intend to give an undue advantage to one party, his influence may quite likely produce that result. Fuller v. State, 217 Ark. 679, 232 S.W. 2d 988; Seale v. State, 240 Ark. 466, 400 S.W. 2d 269; McMillan v. State, supra.
The prohibition in Art. 7, Sec. 23, of the Arkansas Constitution that “judges shall not charge juries with regard to matters of fact” is as applicable to remarks going to the credibility of a witness and the weight to be given his testimony as it is to the truth or falsity of what the witness said. St. Louis S. W. Ry. Co. v. Britton, 107 Ark. 158, 154 S.W. 215; Fuller v. State, supra. Any expression of opinion by the trial judge as to the credibility of a witness would tend to deprive the parties of the full benefit of the judgment of the jury, unbiased by the opinion of judges. Fechheimer-Kiefer Co. v. Kempner, supra. We have said that a judge should not even intimate an opinion as to the credibility of a witness. Sharp v. State, supra. This stricture applies not only to what judges tell juries in formal instructions but also to what they say in col-loquys in the jury’s hearing. Fuller v. State, supra. Even though we are confident that the judge in this case had no intention of invading the province of the jury in its evaluation of Stracener’s credibility and weighing his testimony, the question “How much were you paid to come up with this information?” could only have the effect of intimating that the trial judge believed the witness’ testimony was of questionable value.
Appellant’s counsel did not ask the court for an instruction admonishing the jury not to consider any remarks made by the trial judge as reflecting on whether a witness’ testimony should be believed. The failure to request such an instruction is not significant in this case because such an instruction could not have cured the prejudice to appellants.
We have held that the trial judge has wide discretion in granting or denying a motion for a mistrial, and that we will not reverse a judgment because of his action on such a motion in the absence of an abuse of discretion or manifest prejudice to the complaining party. Perez v. State, 249 Ark. 1111, 463 S.W. 2d 394; Shroeder v. Johnson, 234 Ark. 443, 352 S.W. 2d 570. While we recognize that no prejudice was intended, the question could only be calculated to damage appellants’ attempt to show that someone else might have committed the crime, therefore, the conviction must be reversed. The failure to grant appellants’ motion for a mistrial in this case did result in manifest prejudice to appellants because of the influential position occupied by the trial judge, and the virtual inevitability of the jury’s according great weight to the strong intimation by the judge that the credibility of Stracener was questionable.
Since this case will be remanded for a new trial, we deal with appellants’ other contentions, because they will probably again arise.
Appellants’ Point I is without merit. The state’s privilege to refuse to disclose the identity of informants, the so-called “informer’s privilege,” exists to further the public interest in effective law enforcement by preserving the anonymity of those citizens who provide law enforcement officials with information pertaining to criminal activity. Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957). The privilege is not an absolute one, but is rather qualified by the facts and circumstances of each particular case. Davis v. Kirby, Judge, 244 Ark. 142, 424 S.W. 2d 149. In a given situation there must be a balancing of the public interest in protecting sources of information against the individual’s right to adequately prepare his defense. Roviaro v. United States, supra. Among the factors to be considered in determining whether nondisclosure was erroneous are: the crime with which the defendant is charged, possible defenses, the possible significance of the informer’s testimony and other relevant factors. Rugendorf v. United States, 376 U.S. 528, 84 S. Ct. 825, 11 L. Ed. 2d 887 (1964); Roviaro v. United States, supra; Davis v. Kirby, Judge, supra.
Often, determination whether disclosure is required is ultimately made upon the basis of whether the informant was present or participated in the alleged illegal act with which the defendant is charged or whether the informer merely furnished information concerning criminal activity to law enforcement officers. Roviaro v. United States, supra. See Bennett v. State, 252 Ark. 128, 477 S.W. 2d 497. This distinction, which is not always conclusive, is important because the testimony of an informant who is also a witness may well be the sole means of amplification, modification or contradiction of the testimony of prosecution witnesses and is therefore essential to the preparation of an adequate defense. Officer Reeder of the Pulaski County Sheriff’s Department testified the infor mant in this case was not a participant or an eyewitness to the crime with which appellants are charged. The informant’s tip caused sheriff’s officers to have the victim and her companion view two photographic showups from which they identified appellants. There is no evidence that the informant possessed any knowledge of the crime which was vital to the preparation of appellants’ defense. Appellants’ failure to show the existence of any facts or circumstances which would require the identity of the person who supplied sheriff’s officers with the lead connecting appellants to this crime to be disclosed is fatal to their contention here. Rugendorf v. United States, supra; Roviaro v. United States, supra; Davis v. Kirby, Judge, supra.
We find no error in the trial court’s ruling challenged in Point II. Appellants do not challenge the validity of the photographic showup from which appellant Ronnie West’s picture was identified. Only the procedure used in showing the group of pictures containing Gary West’s photograph to the victim and her escort is challenged. Officer Reeder testified he showed pictures of twelve men to the victim’s male companion and later showed the same pictures to the victim and that both identified appellant Gary West. Reeder said two pictures of four individuals, including Gary West, appeared in the group. Appellant alleges the pictures of him were in sequence and contends the fact that his picture appeared twice made the showup patently unfair. We disagree. Neither the victim nor her companion was told that Gary West’s picture appeared twice. Two pictures of three other individuals appeared in the group. Thus, the showup group contained pictures of twelve men, four of whom were pictured twice. The only evidence regarding the sequence of pictures was the testimony of Officer Reeder that the pictures were not arranged in any particular manner. Furthermore, both the victim and her escort later identified Gary West in a police lineup and at the trial. When a photographic identification is followed by an eyewitness identification at trial, the conviction will be set aside only if the photographic showup was so suggestive as to create a substantial possibility of irreparable misidentification. King v. State, 253 Ark. 614, 487 S.W. 2d 596; Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). We do not find the procedure here impermissibly suggestive.
Appellants also contend there was no probable cause for the arrest of appellant Ronnie West with a warrant and for the arrest of appellant Gary West without a warrant. They allege the only probable cause was supplied by the "tip” of an unknown informer who had never before provided the sheriff’s office with any leads and that therefore there was not sufficient probable cause for the arrests. Appellant Gary West was already in custody on another charge at the time this charge was filed against him. He was not arrested without a warrant. Even if it may be conceded that the filing of charges against Gary West was tantamount to arrest, his contention is untenable.
Before charges were filed against Gary West there were four factors from which probable cause for charging him might be found, and there were three factors bearing upon probable cause for the issuance of a warrant for the arrest of Ronnie West. First, the victim and her escort had provided officers with a description of the two attackers which fit the Wests; second, the officers had received a tip that the Wests were connected with the crime; third, the victim and her companion identified both the Wests from photographic showups; and fourth, Gary West was identified in a lineup by the victim and her companion. Appellants’ contention that a lead coming from an informer who had never before provided officers with a tip cannot supply probable cause is without merit. Simply because the informant’s reliability could not be tested on the basis of his previous aid to officers, the sheriff’s office was not required to ignore any information the informant provided. Ford v. State, 249 Ark. 695, 460 S.W. 2d 749. The informant’s tip together with the description given to officers and the identification of both the Wests provided adequate probable cause for their arrest.
Even if appellants could establish that an illegal arrest had occurred, they stand to gain nothing. We have ruled that even if a person were arrested illegally, he is not entitled to release if he is guilty, and there is no assertion that any evidence obtained as a result of the illegal arrest was used against him. Cassady v. State, 249 Ark. 1040, 463 S.W. 2d 96; Perkins v. City of Little Rock, 232 Ark. 739, 339 S.W. 2d 859. Appellants here have been found guilty and have raised no contention that any evidence used against them resulted from the alleged illegal arrest, unless it was the lineup identification of Gary West, but, as we have pointed out, he was already in custody.
Appellants’ Point III contention is that the trial court erred in refusing to allow Officer Stracener to testify as to findings of his investigation concerning two other possible suspects. We find no error. Stracener testified without objection that a truck which matched the description given the sheriff’s officers belonged to Kenneth Smith, a relative of one of the possible suspects, that Smith had reported the truck as stolen, that the truck was later recovered in the possession of Raymond Raynard and Jerry Maxie, alleged possible suspects, and that charges against these two were later dropped because Smith said they had permission to use the truck. Thus all the evidence relating to the pickup truck was admitted.
Objections were made and sustained to further testimony by Stracener in an attempt to show that warrants had at one time been issued for Raynard and Maxie in connection with this charge and that his investigation had revealed other information about these two men. The trial court was correct in ruling that testimony relating to the warrants was not admissible, since there was no evidence that Raynard and Maxie were guilty of this crime, but only that they had been charged. Killiam v. State, 184 Ark. 239, 42 S.W. 2d 12. As to any other matters that Stracener’s investigation uncovered, there was no offer to show what his testimony would have been, and, consequently, we are unable to say that prejudicial error occurred. Hawkins v. State, 225 Ark. 519, 267 S.W. 2d 1; Wooten v. State, 220 Ark. 755, 249 S.W. 2d 968; Baldwin v. State, 119 Ark. 518, 178 S.W. 409.
The cause is reversed and remanded for a new trial. | [
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Lyle Brown, Justice.
A complaint was filed in the Lawrence County Chancery Court by Cleo Moody, County Judge, and David Hodges, Prosecuting Attorney, who are the appellees. By their complaint they sought to enjoin the appellant, Bill Wade, from interfering with the use of a road by the public. Appellant was so enjoined and hence this appeal. The issues joined on appeal concern (1) whether the court should have dismissed the complaint, (2) whether it was proper for the trial court to strike the testimony of one of the witnesses, (3) whether it was proved that the road was used by the public adversely to the rights of the landowner, and (4) whether the public had abandoned the use of the road.
The road in dispute was designated by the witnesses as Ridge Route Road. It runs roughly north and south and is said to be approximately three and one-half miles long. It is not a part of the county road system. It connects on each end with east and west roads which are a part of the county road system. A substantial portion of the road traverses lands owned by appellant. The record in this case consists of approximately 1000 pages of testimony introduced by 52 witnesses, and a multitude of maps and pictures. The abstract of the testimony consists of 119 pages. A recount in this opinion of the substance of all testimony of all witnesses will not be made for obvious reasons. We shall later refer to some of the evidence as we resolve those points wherein the evidence is relevant.
Appellant first contends that his motion to dismiss' the case should have been granted because it was not brought in the name of the State of Arkansas. He refers us to Ark. Stat. Ann. § 17-302 (Repl. 1968). It is there provided that actions by counties may be brought in the name of the state for the use of the county. The motion was oral and out of time. It was made on the morning of the trial and, of course, after the case had been set for trial. See Rule 2, Uniform Rules for Circuit and Chancery Courts, March 1, 1969. Furthermore, the court’s refusal to consider the oral and untimely motion suggests no prejudice to appellant; in fact the motion went to a matter of form rather than substance.
Appellant next contends the court erred in striking the testimony of Donna Lee Bacon. The case was tried intermittently over a period of months. The rule on the witnesses was invoked at the beginning of the trial. Mrs. Bacon was asked by appellant to come to the trial a week prior to her testimony. The court questioned the witness when her testimony was challenged on ¡ the ground that she had not been in the witness room. She conceded that she had been told by appellant and his wife, in general, what previous witnesses had testified, and more particularly that the appellees’ witnesses had testified that the old road had existed for many years. We have grave misgivings about the ruling of the court under the circumstances, however Mrs. Bacon’s testimony was placed in the record and it is very clear that it was cumulative to the testimony of a number of other appellant witnesses. It was particularly similar to the testimony of her father, Leland Kille-brew. We are unable to say the appellant was prejudiced.
The third of appellant’s contentions is that the trial court should have ruled as a matter of law that appellees had failed to prove that the road was used by the public adversely to the rights of appellant. One of our leading cases on this point is Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W. 2d 281 (1954). There it is stated: “All our opinions are in harmony on one point, viz.: Where there is usage of a passageway over land, whether it began by permission or otherwise, if that usage continues openly for seven years after the landowner has actual knowledge that the usage is adverse to his interest or where the usage continues for seven years after the facts and circumstances of the prior usage are such that the landowner would be presumed to know the usage was adverse, then such usage ripens into an absolute right”.
Witness Robert Taylof, 84 years of age, said he had lived on the south edge of Ridge Route Road for the past 60 years. He said the road went north to Woodrow Bratcher’s cabin, then on north to Gilbert Sand-ford’s home, thence further north to Virgil Brown’s home and there it joins an east and west public road; that the county grades Ridge Route Road and has done so since 1962; and that people have traveled the road over the past sixty years. He related that at one time there was a church on the road.
John Bratcher testified that his father owned the Wade lands before the latter bought them; that he was thoroughly familiar with Ridge Route Road and that it had been there for many years; that he bladed the road for the county in 1962; that the road was widened in 1965 by a man hired by the county; and that some twelve years ago appellant cut some trees across the road but the witness and some other men removed them within a week.
Robert Smith testified that he had been familiar with the road since the late thirdes and that it generally follows the same route as always. He said that sometimes he used the road two or three times a year and at other times he would skip four or five years before going back. He said sometimes a car could not use the road because of the weather.
Witness Ed Bilbrey, 63 years of age, said he had been familiar with the road for about 50 years; that he had used it from one to twenty times a year; that the public used the road unobstructed except for the short period when appellant constructed the gate.
Ed Bilbrey, Jr., said he had been familiar with the road since 1957 and since that time had traveled it two or three times a year.
Witness Dot Foley lives within a mile of Robert Taylor’s house. He said that for the most part the road was used by people fishing and hunting and by the few people living in the area of the road. He said the road was on approximately the same roadbed it was during the last fifty-four years.
Witness Bill Flippo is employed by the Game and Fish Commission and covers the area in question. He said he had traveled Ridge Route Road continuously for the past twenty-one years, mostly checking on hunters. He conceded that Mr. Brown had a cattle guard at his end of the road on the north but said he had never seen a gate at the north entrance. He said at one time there was a logging operation near the road and that fact made it difficult to get through with a car or truck.
Witness Leslie Clements said he first went over the road in 1923 and continued to travel it regularly until about 1950; that his travels since that time have been restricted to hunting. He said the road starts on the south at Mr. Taylor’s house and comes out on the north at Mr. Brown’s house and has been approximately in the same position, although slightly varied in spots.
Virgil Brown lives at the north end of the road and has known about Ridge Route Road since 1960. The public entered his unlocked gate to use the road. The ■road ended at Mr. Taylor’s house.
Cebe Burrough said he . had been familiar' with the road for the past seventeen years and used the road on an average of three times a year. “The road has always been passable and people went through there, but in the winter time it would get real bad where you couldn’t hardly get through there at all in a car.”
Witness Earl Rorex is 68 years of age and a game warden. “I have beep traveling Ridge Route Road for the last 25 or 30 years when I was a game warden and used the road so that I could check on hunters and fishermen in the area.”
We could continue to recite the testimony of a number of other witnesses who used the road. The other evidence of appellees’ witnesses, both on direct and then on rebuttal (eleven in number), follows generally along the lines of identification and use as related by the witnesses from whom we have recited. This does not mean that all the evidence favored appellees. In fact appellant produced some seventeen witnesses to sustain his position. However, we have weighed the evidence and we are unable to say that the finding of the chancellor was against the preponderance of the evidence. The point is, we conclude that the evidence preponderantly establishes public úse for such a time as to bring into play the rule enunciated by Fullen-wider, namely, that the usage was so. long as to ripen into an absolute right.
Finally, it is argued that there was insufficient evidence to support the court’s finding that the road had not been abandoned. Again, this is a fact question. We shall. not abstract the evidence on the point, some of which was concededly offered by both sides. The essential testimony which sustain^ the finding of the chancellor is that of Robert Taylor, who said people haye traveled Ridge Route Road “to the open road over the last sixty years”, and that the road has been under care of the county for eight years. There was evidence obstructions placed in the road by appellant had been shortly removed (even the gate had been taken down). Then there was the testimony of Woodrow Bratcher, who testified that since 1962 he had annually graded and dozed the road; and finally, there was evidence that some federal governmental agency had worked on part of the road. On the whole, we are unable to say the chancellor erred in finding no abandonment. Furthermore, the burden of establishing abandonment was on appellant. Once color of title was established by adverse possession, it became incumbent on appellant to show abandonment. Wilson v. Spring, 38 Ark. 181 (1881).
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MiNor W. Millwee, Justice.
Appellant, Bodcaw Oil Company, Inc., hereinafter called Bodcaw, is a corporation organized under the laws of Delaware; and appellee, Atlantic Refining Company, hereinafter called Atlantic, is also a foreign corporation organized under the laws of Pennsylvania. Bodcaw instituted this suit in the Lafayette Chancery Court against Atlantic to cancel a 1942 oil and gas lease, and also a 1943 contract covering the SW]4 of Sec. 32, Twp. 17 South, Range 23 West in Lafayette County, Arkansas. After an extensive hearing, the chan cellor entered a decree dismissing Bodcaw’s complaint for want of equity and quieting Atlantic’s title under the 1942 lease, as modified by the 1943 contract.
For many years prior to 1936 the Bodcaw Lumber Company of Louisiana, Inc., engaged extensively in the lumber and sawmill business, and owned large tracts of timbered lands in northern Louisiana and southwest Arkansas. On May 14, 1936, the lumber company sold its Arkansas timbered lands to Union Sawmill Company under a deed reserving the minerals in the grantor. In December, 1941, Bodcaw Lumber Company conveyed said minerals fo its stockholders.
When Bodcaw was organized in January, 1942, the stockholders of the lumber company conveyed the minerals reserved in the 1936 deed, including the minerals on the tract in controversy, to Bodcaw in consideration of the issuance to the grantors of 6,000 shares of stock in the new corporation. Thus, the stockholders of the lumber company became the stockholders of Bodcaw. J. A. Buchanan, who was one of the organizers of the lumber company and served as its president from 1922, was elected president of Bodcaw. H. N. Ferguson, who was secretary and a director of the lumber company, also became secretary of Bodcaw. B. S. Cook also continued as a director of the new corporation.
' In December, 1939, Bodcaw Lumber Co. executed to Atlantic an oil and gas lease on 1,120 acres in Lafayette County, Arkansas. This lease was executed on behalf of the lumber company by J. A. Buchanan, President, and was atttested by B. S. Cook, who was'then Secretary. In making the lease, the lumber company reserved one 40-acre tract out of each quarter-section. Acting under this lease, Atlantic drilled its Bodcaw No. 1 as the discovery well in the McKamie Field, sometimes referred to as McKamie-Patton Field.
The Arkansas Oil & Gras Commission, upon assuming jurisdiction over the new field, required that only one well be drilled on each quarter-section of land. This regulation required Atlantic to pool its three 40-acre tracts in each quarter-section, with the forty reserved by the lumber company. The pooling arrangement was accomplished by the execution of eight unitization and operating-agreements between the lumber company and Atlantic, under, which the former was to receive the normal %th royalty. In seven of the unitized areas the lumber company was to also own hi and Atlantic % of the %ths “working interest.” In the unitized area immediately north of the 160-acre tract in controversy the lumber company and Atlantic each own % of the %ths “working-interest.” Atlantic was the operator under the several instruments and eight of the nine wells drilled were producers. The eight unitization and operating agreements were executed on behalf of the lumber company by J. A. Buchanan, President, and H. N. Ferguson, Secretary, without prior specific authorization of the Board of Directors of the corporation..
On December 10, 1941, Bodcaw Lumber Co., through Buchanan and Ferguson, President and Secretary respectively, executed an oil and gas lease to Atlantic on the S% of SEi/4 of said Sec. 32. Atlantic was unable to agree upon a unitization with the owner of the minerals underlying the N% of said quarter-section; for that reason Bodcaw, which had become the successor in title to the mineral interests of the lumber company, on June 3, 1942, executed to Atlantic an oil and gas lease covering the 160-acre tract in controversy. This lease was executed on behalf of Bodcaw by J. A. Buchanan, President, and EL N. Ferguson, Secretary, without previous specific authorization by .the Board of Directors,. It was for a primary term of one year and required payment of %ths royalty to Bodcaw.
On October 19, 1942, Atlantic completed a producing well, known as Bodcaw No. 10, on the 160-acre tract. The well ceased producing- on December 10, 1942, having produced less than 2,500 barrels of oil. Atlantic commenced reworking operations on March 25,1943, in an unsuccessful effort to recomplete the well as a producer in the Smackover Lime formation. Further efforts to make a commercial producer in formations above the Smackover Lime were also unsuccessful.
Atlantic’s district superintendent of production, at Magnolia, Arkansas, was ordered by the general superintendent to plug and abandon-the well. Before this order was carried out, however, the district superintendent was advised to hold the matter in abeyance, as negotiations were pending with Bodcaw whereby the well might be converted to a salt water disposal well. Thereafter, the district superintendent was advised that such agreement had been reached with Bodcaw; and the well was completed as a salt water disposal well on April 21, 1943, at an expense to Atlantic of $2,388.15. Atlantic also left in the well 4,120 feet of 5%-inch casing which otherwise might have been recovered. No further work has been done on the well since its completion as a salt water disposal well. The total cost to Atlantic of the well was more than $98,000.
Bodcaw, as Lessor, and Atlantic, as Lessee, executed the agreement, dated April 27, 1943, which is the instrument primarily involved in this suit. The instrument was actually executed by Bodcaw on April 29,1943, which was eight days after the well had already been converted to a salt water disposal well; however, the testimony shows that an agreement had been reached as to its terms prior to conversion of the well.
The agreement recites the sale by Bodcaw Lumber Co. of certain described lands in Lafayette County to Union Sawmill Co. on May 14, 1936, under the deed reserving the minerals in the lumber company,- that certain of the lands were being operated by Atlantic for the production of oil and gas; that Bodcaw was the owner of all the interest of the lumber company in said lands, including the 160-acre tract in controversy, “which is now under lease to the Atlantic Refining Co., as evidenced by instrument dated June 3, 1942”; that Atlantic had obtained production from the well known as Bodcaw No. 10 on said tract, which production has ceased. The agreement continues:
“Whereas, the parties hereto now desire that said well above described be used as a salt water injection well in and through which may be injected into certain stra- turn or strata and horizon or horizons salt water produced from wells located or to be located upon the lands first herein described and the parties hereto desire further that the lease above referred to and recorded in Volume M-7 at Page 523 of the Records of Lafayette County, Arkansas, be reinstated and continue and remain in full force and effect as hereinafter provided.
“Now, therefore, for and in consideration of the premises and the mutual benefits to be derived by the parties hereto, LESSOR has granted, demised, leased and let and by these presents does grant, demise, lease and let unto LESSEE, its successors and assigns, the said southwest quarter (SW^) of section 32, township 17 south, range 23 west, Lafayette County, Arkansas, for the purpose of injecting, as hereinafter provided, in and through the well situated thereon and such wells hereafter drilled for that purpose, salt water produced from wells located or to be located upon the lands first herein described, together with all rights of whatever kind or nature, incident or necessary-to such salt water injection, and also for the purpose and upon the same terms and conditions as set out in the above described oil and gas lease recorded in Volume M-7 at Page 523 of the Records of Lafayette County, Arkansas, as the same is hereby amended. The right is hereby granted unto LESSEE to inject into the above mentioned well the above mentioned salt water in any formation or formations underlying said land as may, in the-judgment of LESSEE, most efficiently and economically dispose of the salt water produced from operations upon the lands first above described, with the full right in LESSEE to perform any .and all operations in and at said disposal well as may be necessary in connection with the operation thereof for the above mentioned purposes, which operations shall include (but shall not be limited to) the right to deepen such well or drill additional wells if, in the judgment of LESSEE, such deepening operations or additional wells are necessary for the disposal of the above mentioned salt water. This lease shall take effect at once and shall be and remain in full force and effect so long as oil and gas, or either of them, is being produced from the lands first hereinabove described, or any part of them, by LESSEE, its successors or assigns, under all or any one or more of the oil and gas leases and operating contracts, now existing and which máy hereafter be entered into, between LESSEE AND BODCAW LUMBER COMPANY OF LOUISIANA, INC., and BODCAW OIL COMPANY, INC., or either of them and so long as the above mentioned oil and gas leases and operating contracts, or any of them, together with any extensions or renewals thereof, shall remain in force and effect either in whole or in part.
“During the term hereof LESSEE shall not be obligated, either expressly or impliedly, to pay any delay rentals, produce any oil or gas from the southwest quarter (SW14) of section 32, township 17 south, range 23 west, Lafayette County, Arkansas, or drill any well or wells thereon for that purpose, in order to keep this lease in full force and effect, anything contained in the above mentioned oil and gas lease of June 3, 1942, recorded in Volume M-7 at Page 523 of the Records of Lafayette County, Arkansas, to the contrary notwithstanding . . . ”
The above-mentioned agreement was executed on behalf of Bodcaw by J. A. Buchanan, President, and H. N. Ferguson, Secretary, who were also. Directors, without previous specific authorization by the Board of Directors. The instrument was notarized by B. S. Cook, a third member of the five-member Board of Directors. At the time the agreement was executed the parties jointly owned the “working interest” in eight producing wells in the McKamie Field, located on lands adjoining the 160-acre tract in controversy on the north. One of these wells directly “offsets” the 160-acre tract. There were fifteen or twenty other producing wells in the field owned and operated by others.
It seems to be undisputed that in 1943 it was the belief of the operators, and their engineers, that the Mc-Kamie Field was what is known as a salt water driven field — that is, that the energy which produced the pressure came from a salt water drive. This is evidenced by the fact that Atlantic and Carter Oil Co., principal oper ators in the field, had constructed a $2,000,000 desulphur-ization plant to process and render marketable the “sour” gas produced in the field. It was also shown that if the operators had known that the field was in fact a gas driven field, instead of processing and marketing the gas, they would have reinjected it into the producing formation to maintain the pressure which caused the wells to flow. It was also shown that one of the modern methods of disposing of salt water produced in quantities was to reinject it into a salt water producing stratum by use of a disposal well.
In the latter part of 1945, or early part of 1946, it became obvious to the engineers that the McKamie Field had a gas drive, instead of a salt water drive; that the gas pressure was declining; and that it would be necessary to reinject th,e gas produced into the producing formation and unitize the whole producing area in order to maintain the gas pressure. A unitization agreement was finally reached by the operators and royalty owners in August, 1948, after this suit was filed on March 1,1948. The north 100 acres of the tract in controversy was included in the unit, and thus became one of the properties participating in the proceeds from the production of the whole unit. If the lease and contract under attack are invalidated, Bodcaw would thus be entitled to all of the production proceeds allotted to the tract, instead of the %ths royalty provided for in the 1942 lease, as amended by the 1943 contract.
J. A. Buchanan disposed of his Bodcaw stock some time prior to the April 2, 1945, meeting of stockholders and died in October, 1945. Dr. J. S. Seegers, who previously had been a director, was elected President at the 1945 meeting; and his son-in-law, John "W. O’Boyle, was also elected a director. H. N. Ferguson suffered a hunting accident in November, 1943, which rendered him mentally incapable of appearing as a witness at the trial. In August, 1946, James D. Heldt was elected Secretary and Treasurer of Bodcaw.
The present officers of Bodcaw testified that some time prior to the time that the necessity of unitization of the McKamie Field became apparent, they had concluded that the oil and gas lease on the tract in controversy had expired, and the lease and contract had been so marked. Atlantic had no notice of such claim until unitization negotiations were being conducted in 1947. On September 23, 1947, Bodcaw’s Secretary wrote Atlantic that the 1942 lease had expired and had been abandoned and forfeited by Atlantic; and that the 1943 agreement was void for lack of consideration.
After the dispute arose, the parties agreed that production proceeds allotted to the tract in controversy should be withheld, pending the outcome of this suit, without prejudice to the rights of either party; and it was so stipulated in the final unitization agreement. Bodcaw has made no effort to lease or further develop the 160 acres in controversy since 1943; and neither party has since that time considered it advisable or prudent to attempt further development of the tract for oil and g*as.
We have outlined the facts in considerable detail because we think a consideration of the surrounding circumstances and conditions important in determining the issues on this appeal.
Bodcaw first contends that the agreement of April 27, 1943, was invalid for lack of consideration and want of mutuality. It is argued that, although the contract grants Atlantic the right to use the tract of land and the salt water disposal well, the contract imposes no duty or obligation of any kind upon Atlantic; that the agreement does not recite the payment of any consideration and none was paid; and that the contract is, therefore, unilateral, without consideration and void.
Bodcaw relies on such cases as Grayling Lumber Co. v. Hemingway, 124 Ark. 354, 187 8. W. 327; and Harrison v. Kelly, 212 Ark. 447, 206 S. W. 2d 184, which state the elementary rule that an agreement entered into between parties to a contract must be mutual in order to be binding, and if it appears that the one party never was bound on his part to do the act which forms the consideration for the promise of the other, the agreement is void for want of mutuality. At the time the contract was executed the parties jointly owned the eight wells north of the tract in controversy which were then and are still being operated by Atlantic in the production of oil for the mutual benefit of the parties. It is also clear that at that time the parties thought the well which had failed as an oil producer would be useful in the disposal of salt water from the producing- lands, and they mutually agreed that it should be used for that purpose and for their mutual benefit and profit. This contemplated use of the well was thus specifically recited in the contract and was recognized by the parties in the contract as mutually beneficial.
The parties further specifically and mutually agreed to continue the oil and gas lease of June 3, 1942, as amended by the 1943 agreement, in full force and effect so long as oil and gas is being produced from the lands already in production. We hold that the mutual benefit thus recognized and contemplated by the parties by conversion and use of the well as a salt water disposal well afforded a sufficient consideration to support the 1943 agreement.
We have also held that where there is a mutual agreement to modify a contract the mutual promises of the parties constitute a sufficient consideration for a valid agreement. Elkins v. Aliceville, 170 Ark. 195, 279 S. W. 379; Afflick v. Lambert, 187 Ark. 416, 60 S. W. 2d 176.
If the 1943 agreement be considered as an original contract, and not amendatory to the 1942 lease, we conclude there was also sufficient consideration shown by Atlantic’s.expenditure of more than $2,300 in converting the well into a salt water disposal well and the leaving by Atlantic of valuable casing in the well which otherwise might have been removed and salvaged. We have frequently held that parol testimony is admissible for the purpose of showing the real consideration in a deed or other writing evidencing a contract where such testimony does not contradict the terms of the written instrument. Cox v. Smith, 99 Ark. 218, 138 S. W. 978. It is true that the well was converted to a salt water disposal well after an oral agreement had been reached by the parties and before the written agreement was actually signed, but it was done in contemplation of the written agreement. Evidence of these acts on the part of Atlantic acting under the oral agreement does not in any manner contradict the terms of the written contract, but on the contrary tends to explain and lend substance to said agreement.
It is true that the written contract does not contain an express agreement that Atlantic should forbear the exercise of its legal right to remove the casing from the well, but there are circumstances from which such agreement to forbear is clearly to be implied. Federal Compress & Warehouse Co. v. Hall, 209 Ark. 274, 189 S. W. 2d 922. Atlantic refrained from exercising, its legal right under the 1942 lease to salvage the casing upon abandoning the well as an oil producer and this was additional consideration for the 1943 agreement. We,'therefore, conclude that the 1943 contract is supported by sufficient consideration and that it is not lacking in mutuality.
It is next insisted that, if the April, 1943, agreement is valid, it revived the 1942 lease only until June 3, 1943. It is argued that the 1942 lease had already expired by its own terms when the agreement was executed on April 27, 1943, in view of a provision of the 1942 lease to the effect that it would not terminate if. lessee commenced drilling or reworking operations within 60 days after production should cease. The contention is that since reworking operations were not commenced until March 25, 1943, which was more than 60 days after production ceased on December 10, 1942, the 1942 lease had by its own terms expired prior to execution of the agreement of April 27, 1943.
There are other provisions of the 1942 lease which suggest a conclusion different from the one urged by appellant, but we find it unnecessary to discuss these in view of the plain and unambiguous provisions of the 1943 agreement. This agreement affirmatively recognizes the existence of the 1942 lease and specifically provides that it shall, ‘‘be reinstated and continue and remain in full force and effect,” as amended by the 1943 agreement, so long as oil and gas, or either of them, is being produced from the other lands described in the agreement, which include the wells the parties own jointly. The surrounding facts and circumstances, as well as the express and unambiguous provisions of the 1943 agreement, refute the proposition that the parties intended that the 1942 oil and gas lease should terminate only 36 days after the execution of the 1943 agreement.
The lease and 1943 agreement were prepared by attorneys for Atlantic. Bodcaw thus invokes the familiar rules that a contract should he construed most strongly against the party preparing it and that oil and gas leases are to be construed in favor of the lessor and against the lessee. We agree with the trial court’s finding that these rules are to he applied where the contract is susceptible to different interpretations, but should not be used to overturn the plain and unambiguous terms of the contract.
It is next contended that Atlantic has abandoned and forfeited its rights to producé oil and gas from the 160-acre tract in controversy. Many cases are cited which deal with the implied duty of the lessee to explore and develop the leased premises. It is insisted that the uncontradicted evidence conclusively shows that Atlantic long ago abandoned its right to produce oil and gas from the tract in controversy. We cannot agree with this contention. An implied covenant to explore and develop the leased premises is read into an oil and gas lease by the courts for the purpose of carrying out the intent of the parties to the contract, when it is necessary to attain the object and purpose of such contract. One of the leading cases in this state on abandonment and forfeiture is that of Ezzell v. Oil Associates, Inc., 180 Ark. 802, 22 S. W. 2d 1015. There the court approved the following rules stated by the textwriter in 11 L. R. A., N. S. 417: “Generally all leases of land for the exploration and development of minerals are executed by the lessor in the hope and upon the condition, either express or implied, that the land shall be developed for minerals; and it would be unjust and unreasonable, and contravene th'e nature and spirit of the lease, to allow the lessee to continue to hold under it any considerable length of time without making any effort at all to develop it according to the express or implied purpose of the lease; and, in general, while equity abhors a forfeiture,, yet, when such a forfeiture works equity, and is essential to public and private interests in the development of minerals in land, the landowner, as well as the public, will be protected from the laches of the lessee and the forfeiture of the lease allowed, where such forfeiture does not contravene plain and unambiguous stipulations in the lease. This principle will be more readily enforced and applied by the court as to gas and oil cases, because of the peculiar nature of those minerals, and the danger of entire loss to the lessor of oil or gas in his lands by reason of well drilling on adjacent lands.”
The court further said: “In Ann. Cas. 1917E, p. 1126, it is said: that in oil and gas leases, where the owner of the land leases the same for a nominal sum and the further consideration of a royalty or a percentage of the profits realized by the lessee in working and developing the land, in the absence of an express agreement, there is an implied covenant that the lessee will use reasonable diligence in commencing and continuing operations. Numerous cases are cited which support the rule.”
The question here is whether an implied covenant to further explore and develop the tract in controversy will be read into the 1943 agreement in the face of the last paragraph of the agreement hereinbefore quoted. It is true that Atlantic had abandoned the Bodcaw No. 10 well as a producer of oil prior to the execution of the 1943 contract, but this does not mean it had also abandoned the 1942 lease. The fact that the well itself had already been abandoned as a producer of oil and that neither party at that time believed that the drilling of another well was justified tends to explain the reasons for the terms of the 1943 agreement.
The question of abandonment is a mixed one of law and fact and each case must depend upon its own particular facts and circumstances, Millar v, Mauney, 150 Ark. 161, 234 S. W. 498; Essell v. Oil Associates, Inc., supra. If Bodcaw thought it advisable to further develop and drill the tract it has never so indicated by demanding performance or compliance with any alleged implied covenant to do so. Under the facts and circumstances presented in this record, we cannot say that it was either in the public interest or the interest of the parties to the contract that the tract in controversy should have been further developed and explored for gas and oil. To hold that an implied covenant to do so should be read into the lease, as amended by the 1943 agreement, would be in absolute contradition of the express terms of the agreement.
There are many cases from other jurisdictions which deny the existence of an implied covenant to explore and drill under somewhat similar circumstances. Some of these are Simms Oil Company v. Flewellen, 138 Tex. 63, 156 S. W. 2d 521; Shell Petroleum Corp. v. Shore, 72 Fed. 2d 193; Danciger Oil & Refining Co. v. Powell, 137 Tex. 484, 154 S. W. 2d 632, 137 A. L. R. 408. None of the Arkansas cases cited by Bodcaw involve contracts or leases which contain express stipulations to the effect that the lessee “shall not be obligated either expressly or impliedly to . . . produce any oil or gas ... or drill any well or wells thereon for that purpose in order to keep this lease in full force and effect.” Under the facts and circumstances here, we. do not feel warranted in reading into the lease and agreement an intention-directly opposite to that expressed by the parties.
Bodcaw next argues that the 1943 agreement is not binding upon it because J. A. Buchanan had neither actual nor apparent authority to execute it. In his findings the chancellor said: “At least one of the witnesses testifying for the plaintiff in this action stated that Mr. J. A. Buchanan, the president of plaintiff company, was indeed a very shrewd business man, and no doubt the members of the corporation, of which he was president, so regarded him; and from the facts and circumstances introduced in evidence in this case they relied on him to protect the interest of the corporation in all contracts executed by him as president; and neither the Board of Directors or the stockholders ever at any time questioned any contract signed by him as president of the corporation. . . .
“The court finds that the act of the president and secretary, in the execution of the contract, Exhibit ‘B’, was impliedly ratified by the Board of Directors by acquiescence in many other contracts of similar nature executed by said president and secretary without prior authority to do so; and that said Exhibit ‘B’ was ratified by implication by plaintiff’s long acquiescence in the obligations of said contract. ’ ’
We concur in this conclusion and hold that J. A. Buchanan acted within the scope of his implied authority in executing the 1943 agreement. As previously stated, the agreement was signed by J. A. Buchanan, president and general manager, and attested by H. N. Ferguson, Secretary. It was acknowledged before B. S. Cook, director, and executed with the knowledge of a fourth member of the five-member board of directors of Bodcaw. We have heretofore mentioned a few of the many contracts which J. A. Buchanan executed over the years as president of both Bodcaw Lumber Co. and appellant without prior authorization of the board of directors. The by-laws of Bodcaw made its president general manager of the corporation. As one director who had served with him over the years stated, Buchanan was the “big boss” of Bodcaw. ■ As president of Bodcaw, he continued to act for the new corporation in the execution of contracts and conveyances without prior authorization by the board of directors in the same manner that was done during the years that he was president of the lumber company. All of such acts were either acquiesced in by the corporation or readily ratified by the board of directors upon request and none of them were ever questioned except the contract in controversy here, and there has been no action by the board refusing to ratify it.
In Texarkana & Fort Smith Railway Co. v. Bemis Lumber Co., 67 Ark. 542, 55 S. W. 944, the president of a corporation had been accustomed to executing promis sory notes in the name of the corporation without express. authority of its board of directors, of which custom the board was cognizant. We held that the corporation was bound by a note so signed by the president and said: “The board of directors must be held, under the circumstances, to have acquiesced, and the corporation was bound for the same, as though the board of directors had, by formal action, conferred upon the president .express authority to make the note. Estes v. German National Bank, 62 Ark. 7, 34 S. W. 85; City Electric Ry. Co. v. First National Bank, 62 Ark. 33, 34 S. W. 89, 31 L. R. A. 535, 54 Am. St. Rep. 282; Mining Co. v. Anglo-Californian Bank, 104 U. S. 192, 26 L. Ed. 707.” See, also, Winer v. Bank of Blytheville, 89 Ark. 435, 117 S. W. 232, 131 Am. St. Rep. 102; International Life Insurance Co. v. Vaughn, 114 Ark. 26, 169 S. W. 330; 2 C. J. S., Agency, § 99. It is clear from the evidence in the case at bar that the board of directors of Bodcaw by its conduct and acquiescence depended and relied upon J. A. Buchanan in the negotiation and execution of all its contracts without previous authorization. Buchanan was thus clothed with the power and authority to execute the agreement in controversy as fully as if the board had formally and expressly granted such authority.
Bodcaw next argues that it could not validly grant Atlantic the right to inject salt water into the quarter-section of land in controversy and the 1943 agreement, therefore, fails. The contention is that Bod-caw disposed of the surface rights in the land in 1936; that disposal of salt water by use of a disposal well was unknown at that time and Bodcaw retained no such right of disposal by reservation of the minerals and, therefore, could not assign or transfer such right to Atlantic under our holding in Missouri Pacific Rd. Co. v. Strohacker, 202 Ark. 645, 152 S. W. 2d 557, and similar cases. We find it unnecessary to determine whether Bodcaw reserved the right to inject salt water into the ground under the deed. The owner of the surface rights is not a party to this suit and, insofar as the record here discloses, has made no claim to the right assigned by Bod-caw. It seems certain that both parties thought and supposed that Bodcaw had the right to assign the right of salt water disposal by injection into the ground at the time the 1943 agreement was entered into.
In discussing “Assignment of a supposed right as consideration” in Williston on Contracts (Rev. Ed.) Vol. I, § 137, the learned author says: “Somewhat-analogous to the surrender of a supposed claim as consideration for a promise is the assignment of a supposed right of another kind. Certainly if the parties confessedly bargain for the assignment of such right as the grantee may have, be it small or great, or none at all, the assignment in fact is sufficient consideration for a promise though it turns out that there is no right transferred. The only possible exception to such a rule is that, if no reasonable person could suppose the assigned chance was of any value, it might then be insufficient consideration. But even in such a case the execution of a quit claim deed or other desired paper would support a promise.” See, also, Restatement, Contracts, § 177; St. Francis Levee List. v. Cottonwood Lbr. Co., 86 Ark. 221, 110 S. W. 805; Jonesboro Hdwe. Co. v. Western Tie & Timber Co., 134 Ark. 543, 204 S. W. 418. The facts here do not bring the assumed right of salt water disposal within the “possible exception” to the rule thus stated; and the assignment of such supposed right is sufficient consideration for the 1943 agreement. Moreover, the record shows that the tract in controversy has materially increased in value since the north 100 acres was included in the 1948 unitization agreement and, insofar as Atlantic’s rights are concerned, it would be manifestly inequitable for Bodcaw to now be permitted to say that it was without authority to grant a right so clearly intended and for which Atlantic paid a valuable consideration.
Since we conclude that the 1943 agreement is valid and binding and not subject to cancellation by Bodcaw, it is unnecessary to determine whether the cause of action is barred by laches. The decree of the trial court is in all things correct and is, therefore, affirmed. | [
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Dunaway, J.
Appellants, Barnes and York, were convicted of the crime of grand larceny and their punishment was assessed at five years’ imprisonment in the State Penitentiary. This is the second appeal in this case. On the first appeal, Barnes and York v. State, 215 Ark. 781, 223 S. W. 2d 503, a similar judgment was reversed because of the introduction of prejudicial hearsay testimony, and the cause was remanded for a new trial.
These facts were established by the undisputed testimony: On the night of November 4, 1948, the store building of Moore Brothers, located on the outskirts of Blytheville, Arkansas, was forcibly entered and a metal safe containing in excess of $1,000 in cash and a number of checks was stolen. The safe was found in a Negro cemetery about one mile from town on Sunday, November 7. A large hole had been made in one side of the safe and the money taken. During the course of an investigation by the Blytheville police, an abandoned automobile was found on the highway running from Blytheville to Hayti, Missouri. In that car was a sales slip for merchandise purchased at the Moore Brothers’ Store, which slip of paper liad been in tlie safe the night of the crime. The investigation also disclosed that the night of the offense, several Negroes had hired a taxicab to take them to Hayti, Missouri.
As a result of information furnished to law enforcement officers in Hayti, appellants and another Negro, Wilton Austin, were apprehended as suspects. On November 19, in response to a call from the Hayti officers, the Sheriff of Mississippi County, one of his deputies and the Chief of Police of Blytheville went to Hayti where they talked to appellants and Austin. The suspects denied ever having been in Arkansas.
The Sheriff and others testified that appellants agreed to accompany them to Blytheville, with the understanding that if it developed that they were not the persons wanted for the commission of the offense under investigation, they would be returned to Hayti. Appellants ’ testimony was to the effect that they did not know they were being taken to Arkansas, but only agreed to go to another town and if not there “identified” as the criminals sought, they would be returned. They were taken by the officers to Blytheville, where they were placed in the county jail.
Upon their arrival there, appellants were questioned briefly and again denied ever having been in Arkansas before. Appellant York and Austin were then locked in the jail, while appellant Barnes was taken in an automobile by the Sheriff and his deputy, who drove past Moore Brothers’ Store and the cemetery where the stolen safe had been found. Barnes denied having seen either place before. The officers testified that Barnes was shown a “field,” and was not told by them that it was a cemetery; and that because of the darkness and high grass growing there it was impossible to see any tombstones to identify the place as a cemetery.
They then returned to the jail, where according to the officers, Barnes was questioned only a few minutes. The trip and questioning took approximately fifteen minutes, the officers testified. Barnes’ testimony was that he was taken to a cemetery, after which he was inter rogated for about three hours. Barnes was then locked in the jail for the night, still denying any knowledge of the affair.
The following morning about nine o’clock, the jailer informed the Sheriff, upon his arrival at the jail, that Barnes wanted to talk to him. Barnes was brought downstairs and asked that York be brought down too. Both appellants then made detailed statements in which they admitted their participation in the crime, and said they had each received $300 for acting as watchmen during the burglary and for assisting in removing the safe in an automobile, in company with two other men.
These oral confessions by appellants were not mentioned by the State, and no attempt was made to introduce them in evidence. It appears that before the trial commenced, on motion of the defense, the State was instructed by the trial court not to mention these oral confessions ; the ground being that a wire recording of the original oral confessions was so garbled as to be incomplete. Although this evidence was not presented to the jury, it further appeared from the pre-trial proceedings, that the garbled wire recording had been “erased” by the Sheriff after the first trial since it had been ruled inadmissible at that time because of its incompleteness.
On December 6, 1948, similar statements were made by appellants in the presence of the Sheriff, Prosecuting Attorney, Austin and Miss Eunice Brogdon, a deputy sheriff and collector. Appellants told in detail how the crime was committed and that the safe was left in the cemetery where the officers had found it. These statements were reduced to writing by Miss Brogdon. The testimony on the part of the State, by the Sheriff, Austin and Miss Brogdon was that Miss Brogdon took down in shorthand the statements as dictated by the Prosecuting Attorney; that the Prosecuting Attorney dictated the substance of what appellants were then relating as to the occurrence of the crime. The State’s witnesses said that prior to the writing down of these statements, the appellants were advised that they were not required to make any statement, and that any statements made could be used against them. Recital of these facts was made in the statements.
When the confessions were typed by Miss Brogdon, the Circuit Clerk, County Treasurer, and a local real estate dealer were called into the room to witness appellants’ signatures. These witnesses all testified that the statements were read to appellants in their presence, that appellants at that time said the statements were true, and affixed their signatures thereto. These three men then signed the statements as witnesses. Miss Brog-don signed the statements as Notary Public, having first sworn the appellants.
The written confessions of both appellants were submitted to the jury under appropriate instructions that they must have been freely and voluntarily made before any consideration could be given them. This was done over appellants’ objections, and after a preliminary hearing on the question of the voluntary nature of the confessions in- chambers out of hearing of the jury.
The defendants testified that the statements introduced were not true and insisted that the confessions had been made as a result of promises of suspended sentences by the Sheriff and fear of physical mistreatment. They did not testify that there had actually been any mistreatment at any time by anyone while they were in custody. They did not say there were any threats or promises at the time the written confessions were made. Their testimony was that the Sheriff had promised leniency before the initial oral confessions were made, and that they were afraid because at that time a deputy sheriff was present with a black-jack asking the Sheriff to let him see if he could make them talk. The officers flatly denied that any threats or promises had ever been made to induce appellants to make a confession. There was no testimony of constant interrogation over an extended period of time. The defendants did not say they had been questioned in the interim between the making of the oral confessions and the ones later reduced to writing.
It is appellants’ contention that the initial oral confessions were illegally obtained as a matter of law, and that the subsequent written confessions were the result of a continuing illegal inducement — fear and promised leniency — and consequently inadmissible.
The proper procedure to be followed when the voluntary nature of an alleged confession is questioned was well stated in the opinion written by Mr. Justice Frank G. Smith in Burton v. State, 204 Ark. 548, 163 S. W. 2d 160, where we said: “We have frequently defined the practice where it is contended that a confession offered in evidence was not freely made. This practice is for the court to hear, as a preliminary matter, in the absence of the jury, testimony as to the circumstances under which the confession was made, and to exclude it from the jury if it were not freely made. If, however, there is an issue of fact as to whether the confession were freely made, that question should be submitted to the jury after having heard the testimony as to the circumstances under which it was made, and the jury should be told to disregard the confession if it were found not to have been voluntarily made. ’ ’
That is exactly the procedure which was followed in the case at bar. Appellants insist, however, that in this case there are certain undisputed facts which render the . admission of the confessions violative of their rights under the 14th Amendment to the United States Constitution, and that the confessions should have been excluded as a matter of law. Two of these are: (1) Appellants were taken in custody without a warrant of arrest. (2) They were not taken forthwith before a committing magistrate as required by Ark. Stats. (1947) § 43-601. Our decision in State v. Browning, 206 Ark. 791, 178 S. W. 2d 77, settled these questions adversely to appellants’ contention. We reaffirmed the holding in the Browning case, that even though these facts be true a confession is admissible if voluntarilv made, in Palmer v. State, 213 Ark. 956, 214 S. W. 2d 372. In the Palmer case we reviewed the decisions of the U. S. Supreme Court (Ashcraft v. Tennessee, 322 U. S. 143, 64 S. Ct. 921, 88 L. Ed. 1192: Malinski v. Neto York, 324 U. S. 401, 65 S. Ct. 781, 89 L. Ed. 1029; Haley v. Ohio, 332 U. S. 596, 68 S. Ct. 302, 92 L. Ed. 224) which it was argued necessitated a change in our earlier decisions.
Appellants now urge that later U. S. Supreme Court decisions require us to say that the confessions introduced in this case were obtained under circumstances which rendered their admission a violation'of due process of law. See Watts v. Indiana, 338 U. S. 49, 69 S. Ct. 1347; Turner v. Pennsylvania, 338 U. S. 62, 69 S. Ct. 1352; Harris v. South Carolina, 338 U. S. 68, 69 S. Ct. 1354. All of these cases are easily distinguishable from the case at bar. In each instance the undisputed proof was that the accused had been over a period of several days interrogated by relays of officers for hours at a time, day and night, and had not been advised as to his constitutional rights.
In Watts v. Indiana, supra, the Supreme Court said: “On review here of State convictions, all those matters which are usually termed issues of fact are for conclusive determination by the State courts and are not open for reconsideration by this Court. Observance of this restriction in our review of State courts calls for the utmost scruple. But ‘issue of fact’ is a coat of many colors. It does not cover a conclusion drawn from un-eontroverted happenings, when that conclusion incorporates standards of conduct or criteria for judgment which in themselves are decisive of constitutional rights. Such standards and criteria, measured against the requirements drawn from constitutional provisions, and their proper applications, are issues for this Court’s adjudication. . . .
“In the application of so embracing a constitutional concept as ‘ due process, ’ it would be idle to expect at all times unanimity of views. Nevertheless, in all the cases that have come here during the last decade from the courts of the various states in which it was claimed that the admission of coerced confessions vitiated convictions for murder, there has been complete agreement that any conflict in testimony as to what actually led to a contested confession is not this Court’s concern. Such con flict comes here authoritatively resolved by the State’s adjudication. Therefore only those elements of the events and circumstances in which a confession was involved that are unquestioned in the State’s version of what happened are relevant to the constitutional issue here. But if force has been applied, this Court does not leave to local determination whether or not the confession was voluntary. There is torture of mind as well as body; the will is as much affected by fear as by force. ’ ’
There is no conflict between that decision and the decisions of this court. If the undisputed testimony showed that the confessions had been extorted by threats of harm, promises of favor or benefit, inflictions of pain, a show of violence, or interrogation of the accused “by a continuous inquisition persisted in to the extent of exhausting him physically and mentally and overcoming his will,” such confessions would be inadmissible. See Needham v. State, 215 Ark. 935, 224 S. W. 2d 785, and cases therein cited. Here, however, all the witnesses for the State testified that no sucli elements were present. Appellants testified that they were. An issue of fact was thus presented, which was submitted to the jury under proper instructions.
Just as a conflict in the testimony regarding the circumstances under which a confession is made, is “authoritatively resolved by the State’s adjudication” upon review by the IT. S. Supreme Court, so on our review of the issue is the presence or absence of facts claimed to render the making of a confession involuntary concluded by the jury’s determination when that question is submitted upon substantial conflicting testimony. The confessions were properly admitted in evidence.
Appellants also argue that the evidence is insufficient to warrant their conviction even if the confessions were admissible. The commission by someone of the crime of grand larceny was definitely proved by the testimony of the owner of the store and the officers who found the chopped-open safe. In addition, "Wilton Austin, who was with appellants when they were taken in custody, testified that shortly prior to that time w;hile on a trip to Kentucky with them, appellants told him they had “pulled a job” in Arkansas. The law is that the extrajudicial confession of a defendant accompanied by proof that the offense was actually committed by someone will warrant a conviction. Melton v. State, 43 Ark. 367; Burrow v. State, 109 Ark. 365, 159 S. W. 1123; Ezell v. State, ante, p. 94, 229 S. W. 2d 32. The evidence was sufficient to sustain the verdict of guilty.
We do not discuss all the points raised by appellants’ thirty-seven assignments of error in their motion for new trial. Our conclusion from a study of the record is that no error was committed in the trial of this case. Contrary to appellants ’ argument, the lengthy record in this case shows that the trial was conducted in an eminently fair and impartial manner by the learned trial judge.
The judgment is affirmed. | [
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Lyle Brown, Justice.
Appellant’s petition for a divorce was denied. We affirm because the appellant failed to meet the requirement of corroboration.
The parties were intermarried in 1954 and lived together until March 11, 1972. For several years prior to the separation they lived in Memphis where appellee still resides. At the time of separation appellant moved to El Dorado. The divorce petition alleged general indignities. Appellee denied the allegation and alleged in substance that the separation resulted from appellant having an affair with a woman in El Dorado. In addition to denying appellant’s prayer for divorce the court awarded custody of the minor child to appellee; ordered appellant to pay $300 per month for support of the wife and minor child; and gave possession of household furnishings and an automobile to appellee. The latter did not ask for a divorce.
Appellant testified at length relating that appellee was in the habit of drinking, committing acts of hysteria, consistently spending money beyond their income, em-barrasing appellant, and committing acts of violence toward appellant. He denied having an affair with another woman but in oral argument the incident was admitted.
In the absence of collusion in a contested divorce comparatively slight evidence of corroboration is sufficient. Anderson v. Anderson, 234 Ark. 379, 352 S.W. 2d 369 (1961). Witness R. A. Chapel resides in El Dorado and has business dealings with appellant. The witness testified that in February 1972 he received a telephone call from appellee trying to locate appellant; that “she got kind of loud’ ’ and wanted to know if the witness knew a woman named Bobbie; that appellee used some profane language and said “This is some more that is going to pay for this”. Mrs. Chapel was called as a witness. She testified that when appellant moved to El Dorado he had a black eye; that she inquired of the cause and appellant attributed it to an accident. Appellee was called as a hostile witness. She said the parties scuffled on the evening of March 11, 1972, the date of the separation; that in the same encounter she threw a glass at appellant and in the same confrontation she tore his shirt. She said she was incensed because of “the other woman” and by having learned that appellant had lied about his whereabouts on a previous night which was spent away from home. Summarizing, appellant’s corroboration related to a telephone call inquiring about another woman; a black eye which appellant attributed to an accident; and a physical encounter with appellee on March 11. Appellant refers us to the testimony of several witnesses called by appellee and urges that their testimony corroborates appellant’s testimony. Sharon Cook said she heard the couple argue about bills which the witness did not consider uncommon among married couples. Dorene Dundas said she had heard the Morlans fuss about appellant not spending more time with his young son. Charlene Ulander said she had heard appellee use abusive language towards appellant. Mark Morlan, the seventeen year old son of the parties, said he “got between” the couple one night when they were arguing. None of those witnesses related how often they witnessed the described events, neither is it clear who was the aggressor, nor is it revealed when the incidents occurred.
To sustain a divorce on grounds of indignities it must be shown that the misconduct of the offending spouse was conducted habitually and continued for such a period of tíme as to make the married life intolerable for the other spouse. Preas v. Preas, 188 Ark. 854, 67 S.W. 2d 1013 (1934). “Indignities may mean a number of things in various circumstances but in order to constitute the grounds for divorce they must be constantly and persistently pursued with the object and effect of rendering the situation of the opposing party intolerable.” Gibson v. Gibson, 234 Ark. 954, 356 S.W. 2d 728 (1962); see Welch v. Welch, 254 Ark. 84, 491 S.W. 2d 598 (1973). In view of the recited requirement of the law, and in further view of the fact that the chancellor saw and heard the witnesses and with the right to judge their credibility, we are unable to say his finding was against the preponderance of the evidence.
Appellant does not argue that the property division or support money was improvident; at least they do not brief the questions. Be that as it may, we are unable to say that the awards made in those areas, along with an attorney’s fee, were improper.
In addition to judgment for costs in favor of appel-lee, she is awarded an attorney’s fee of $500 for appeal to this court. In fixing a rather modest fee we note that appellant has not accumulated any savings; his annual salary is around $9000; he has a son in a private school and is paying appellee $300 a month.
Affirmed.
Harris, C.J., not participating. | [
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Holt, J.
Appellant, Owen- Eevis, a resident and taxpayer of Clarksville, a city of the second class, for himself and others similarly situated, brought this action in equity, alleging in his complaint, in effect, that ap-pellee, Sam Harris, while the Mayor of Clarksville and a member of its City Council, was, by an ordinance on • July 17, 1947, ‘‘constituted, appointed, and elected to serve as Municipal Judge until the next regular election. ”
He further alleged that Harris served as such Municipal Judge from July 18, 1947, to April 8, 1948, receiving therefor a salary of $200 per month, or a total of $1,733.33. That “J. W. Thompson by appointment by the City Council on January 10, 1949, is assistant treasurer, to treasurer, P. J. Haynes, to handle sewer funds exclusively * * That “Sam Harris was illegally and unlawfully paid of the funds of the treasurers of the city of Clarksville and Johnson County, Arkansas, and for reason Act 128 of the Acts of 1947, did not apply to the city of Clarksville, and for the further reason that he being mayor and member of the City Council is and was prohibited by law to be appointed to a Municipal Office which is created during the term for which he is and was elected; that said ordinance was void and of no effect, and the said City Council was without authority of law, and beyond their power to pass said ordinance, or to make such appointment, and for said reasons the said Sam Harris, was not entitled to hold said office as Municipal Judge as provided by said ordinance and was holding said office without any right and without any authority of law, which ordinance has been so declared to he unconstitutional by our State Supreme Court, and the said Sam Harris was not entitled to be paid any sum or sums out of the taxpayers’ money, and were illegal exactions, and this plaintiff in behalf of himself and all others interested are entitled to recover judgment against the defendant, Sam Harris, for said sum as aforesaid, for the use and benefit of the city of Clarksville, and of Johnson County, Arkansas.
“That the defendant, Sam Harris, is and has been since he acted as Municipal Judge, continuing to make illegal exactions against the inhabitants of the said city of Clarksville, by being interested directly or indirectly in the profits of contracts of jobs for work or services performed for the city of Clarksville, Arkansas, by making contracts with and accepting employment by the defendant, J. W. Thompson, manager for the board of commissioners of the Municipality-owned Light, Water and Sewer System plants of the city of Clarksville, Arkansas, and being paid by the said J. W. Thompson for such contracts for work or jobs for his services performed for said Municipality-owned Light, Water and Sewer System plants of the city of Clarksville, Arkansas, and is also accepting appointments for profits and being appointed by the said City Council. * * *
“That on January 10, 1949, said City Council met and appointed this defendant, Sam Harris, as sewer (or plumbing) inspector of the said city of Clarksville. * * * That such appointment * * * was illegally and unlawfully made, and Sam Harris is not qualified as provided by law and he is ineligible to be appointed as such inspector, for the further reason he being mayor at the time said ordinance was established is prohibited by law to be appointed as such inspector and is not entitled to serve as such inspector or to receive any pay for his services as such inspector. * * * That plaintiff has no adequate remedy at law,”
He further alleged that Harris while Mayor and -a member of the City Council, as indicated, had unlawfully entered into certain contracts with the Municipality-owned Light and Water System of Clarksville; to perform certain work for which he was paid from city funds illegally.
His prayer was that “Sam Harris be enjoined and restrained from further contracting' with or accepting employment for jobs for profit, for services performed for said City of Clarksville, and that he be further enjoined and restrained from further performing any services as Plumbing Inspector and as further performing any further services as member of the Clarksville Plumbing Board of. Examiners; that the defendant, J. W. Thompson, be enjoined and restrained from further contracting and employing the defendant, Sam Harris, and he be enjoined and restrained from further paying the defendant, Sam Harris, for any services performed for contract, for work and as Plumbing Inspector and as member of the Clarksville Plumbing Board,” and that he have judgment against Harris for $1,733.33, the amount paid Harris as salary while acting as Municipal Judge, and that he recover in addition from Harris, for any other sums, illegally paid to Harris as alleged.
Harris filed “Motion to Dismiss Complaint,” in effect a Demurrer. The Court treated this Motion as one to strike and decreed as follows: “That all that part of plaintiff’s complaint and prayer seeking judgment against the defendant, Sam Harris, for amounts alleged paid to him while acting as Municipal Judge, and sums heretofore alleged to have been paid to him by J. W. Thompsoii, assistant treasurer, to P. J. Haynes, be and the same are hereby stricken, and to that extent defendant’s motion is dismissed for lack of jurisdiction, and improper joinder of causes of action. It is further ordered and decreed that as to that portion of said complaint seeking injunctive relief, as to further payment, defendant’s motion is overruled. Plaintiff excepted and declined to plead further, standing on his complaint, and that the complaint as a whole is dismissed for want of equity. ’ ’
This appeal followed.
There was error in so much of the decree holding, in effect, that appellant was not a proper party to bring the suit and that the Court lacked jurisdiction.
Our holding in the recent case of Sitton v. Burnett, 216 Ark. 574, 226 S. W. 2d 544, opinion delivered February 6, 1950, is controlling here.
In that case, Burnett, a citizen and taxpayer, brought suit to recover salary illegally paid Sitton by the second class City of Clinton, while serving as a de facto marshal. There it was alleged Burnett was not a proper party to bring the suit and that equity was without jurisdiction. We there held that Burnett, as a resident and taxpayer, was a proper party to bring this suit since taxpayers are the equitable owners of public funds and may sue to prevent any illegal exactions whatever, within the meaning of Art. 16, § 13, of our Constitution.
So here, if appellant’s allegations in his complaint to the effect that appellee had been paid sums of money illegally by the City of Clarksville while acting as Municipal Judge, and for other services, without right or authority of law, were true, appellant stated a cause of action and was a proper party to initiate the suit.
Chancery had jurisdiction and the power to grant affirmative as well as injunctive relief in the circumstances. Grooms v. Bartlett, 123 Ark. 255, 185 S. W. 282.
We said in Conner v. Heaton, 205 Ark. 269,168 S. W. 2d 399: “In the case of Horstmann v. LaFargue, 140 Ark. 558, 215 S. W. 729, this court, quoting with approval from Pomeroy Eq. Jur., § 181, said: 'If the controversy contains any equitable features, or requires any purely equitable relief, which would belong to the exclusive jurisdiction, by means of which a court of equity would acquire, as it were, a partial cognizance of it, the court may go on to a complete adjudication, and may thus establish purely legal rights, and grant legal remedies, which would otherwise be beyond the scope of its authority,’ and in 8 R. C. L. 911, § 37, the author says: ‘Inasmuch as a court of equity has jurisdiction of all matters which savor of trusts, it is the proper tribunal in which to seek to enforce or preserve the beneficial interest of the public obtained through a dedication,’ and the rule is well settled that ‘when equity acquires jurisdiction of a cause for one purpose under bona fide allegations, all matters at issue will be adjudicated and complete relief afforded.’ ” Reaffirmed in Goodman v. Powell, 210 Ark. 963, 198 S. W. 2d 199.
Accordingly, the decree is reversed and the cause remanded for further proceedings consistent with this opinion. | [
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Carleton Harris, Chief Justice.
On December 19, 1967, appellees Garner and Mildred Carter, husband and wife, executed a deed to appellant Hervey Mizell and his wife to a tract of land purporting to convey 10.38 acres, which deed was thereafter duly recorded on January 10, 1968. On April 25, 1972, the Carters executed a deed to Wanda Hyatt, one of the appellees herein, to the northerly 3 1/2 acres of the land which had been deeded to Mizell, this deed being subsequently recorded. Thereafter, at various times, Mrs. Hyatt’s husband took a dozer upon this 3 1/2 acre tract, removing vegetation and rock, and constructed a road across a portion of the land connecting up with an earlier road that had been constructed before Mizell ever purchased the property. In the first part of July, appellant complained to Hyatt, at which time both parties apparently learned that the other (actually Hyatt’s wife) had a deed to the same 3 1/2 acres. Mizell instituted suit on July 13, 1972, against the Carters, the Hyatts, and Harry C. Hall and wife, the Hyatts having sold the property to the Halls, but no deed being recorded since the property had not been completely paid for, seeking judgment against the Carters and Hyatts for $2,500 damages, asking that the deed from the Carters to Hyatts be cancelled and set aside, and seeking an injunction against all defendants from trespassing on the property in any manner.
The Hyatts and Halls answered, pleading laches, es-toppel and unjust enrichment as a defense and the former further prayed judgment against the Carters for breach of warranty in case judgment was entered against them. By separate answer, the Carters asserted that the deed should be reformed because of mutual mistake, or a mistake by the Carters and fraud by Mizell, and stated that they were not aware that any of the property conveyed to Wanda Hyatt included land which had previously been deeded to the Mizells.
On trial, the court held that there was no question but what the parties had agreed upon a price of $100.00 per acre for the land and that appellant had paid at that rate for 10.38 acres. But the court held that the parties knew that the land which was to be purchased “was that land up to the first bluff upon which the plaintiff has his house trailer and that the lands below the bluff and fronting on the creek were the lands of the Carters to be specifically retained by them”, and that a mutual mistake had been made as to the exact description of the land. The court held that Mizell should have received 3.9 acres as the agreed conveyance from the Carters and it thereupon ordered the deed reformed to that effect and held that Mizell should be reimbursed for the additional amount he had paid for the ten plus acreage together with interest from the date of the initial payment to the Carters until the conclusion of the trial. The court also found that Mizell was entitled to no damages against any of the defendants; further, that the work done by appellee Hyatt on the stream or creek property was done upon property belonging to Hyatt and others upstream from the land in controversy and that this work did not damage any lands of Mizell or anyone else. In accordance with these views, the court ordered reformation of the deed from the Carters to the Mizells as set out in this paragraph and denied damages. From the decree so entered, appellants bring this appeal. Several points are urged for reversal, but the litigation can be disposed of without a discussion of each.
Let it first be remembered that we have clearly stated many, many, times that parol evidence of a mistake must be clear and convincing before reformation is justified. In Mitchell v. Martindill, 209 Ark. 66, 189 S.W. 2d 662, quoting an earlier case , the court said:
“The authorities all require that the parol evidence of the mistake, and of the alleged modification, must be most clear and convincing, ... or else the mistake must be admitted by the opposite party; the resulting proof must be established beyond a reasonable doubt. Courts of equity do not grant the high remedy of reformation upon a probability, nor even upon a mere preponderance of the evidence, but only upon a certainty of the error.”
In Hicks, Special Administratrix v. Rankin, 214 Ark. 77, 214 S.W. 2d 490, this court said:
“Appellant’s answer filed in the trial court, plead the statute of limitations, laches and estoppel, but we deem it unnecessary to discuss these pleas, for, on the whole, the evidence in this case is not sufficient to meet the rule early adopted and long followed by this court and well expressed in the case of Goodrum v. Merchants & Planters Bank, 102 Ark. 326, 144 S.W. 198, 202 Ann. Cas. 1914A, 511: ‘It is true that this is a suit instituted in a court of chancery, and is to be determined by principles enforceable in such court, and that equity will reform a written contract on the ground of mistake. But, to entitle a party to reform a written instrument upon the ground of mistake, it is essential that the mistake be mutual and common to both parties; in other words, it must be found from the testimony that the instrument as written does not express the contract of either of the parties thereto. It is also necessary to prove such mutual mistake by testimony which is clear and decisive before a court of equity will add to or change by reformation the solemn terms of a written instrument.” ***
“The evidence necessary to impeach the solemn recitations of the deed must be clear and convincing. As was said in Bevens v. Brown (196 Ark. 1177), 120 S. W. 2d 574, such evidence ‘must be so clear that reasonable minds will have no doubt that such an agreement was executed. It must be so convincing that serious argument cannot be urged against it by reasonable people.’ ”
We think the proof in the case before us falls far short of the quantum of proof required for reformation. The evidence shows that the deed conveyed 10.38 acres of land, being a part of two 40 acre tracts. Undisputedly, neither man, when the oral agreement to sell was made, knew just how much acreage was involved, but it is also undisputed that their agreement was that, following a survey, Mizell would pay $100.00 per acre.
The surveyor was obtained by Mizell, and although Carter was not present when the survey was made, he had every opportunity to be present, but voluntarily chose not to go. He said he saw them (Mizell and surveyor) out surveying the property that was to be sold, but didn’t go up to where the survey was taking place. The finding of 10.38 acres was not disputed and Carter and wife executed the deed and received the sum of $1,038 in payment therefor. Within two months, and over four years before Hyatt obtained the land from Carter, the Mizells recorded their deed.
Of course, under the provisions of Ark. Stat. Ann. § 16-114 (Repl. 1968), the recording of a deed is constructive notice to all persons from the time it is filed for record in the office of the recorder of the proper county, and it thus appears that the Mizells did all that was required to protect their title. The deed itself waá prepared at the instance of Mizell, but by Carter’s then attorney, and Carter testified that he might have suggested that Mizell go to that particular lawyer. Not only that, but Carter testified that he had in the past done some surveying in rough territory, and it is extremely difficult to understand how one, who had lived in the area for 12 or 13 years, and who had experience in surveying, would not be able to know the difference between 3 1/2 acres and 10 1/2 acres; in fact, Carter testified that he did know the difference.
As to the Hyatts, the testimony reflects that no attorney examined the title, no abstract was obtained covering the property, nor was any check made of records at the courthouse.
With the matters which we have herein set out, it would not appear there is much further need to discuss the evidence. Carter testified that he had walked over the property with Mizell that was to be sold at various times in the past, although Mizell testified that they walked over the area which he actually purchased.
There was also disputed testimony as to which had possession of the property during the approximately four-year period from the time of the purchase by Mizell to the time of the purchase by Hyatt. The Carters testified that they used the property for a cow and calf to graze, but Mizell testified that this was with his permission. Mizell also testified that he used the land to raise oats and graze his horse, which Carter admitted, but the latter said that this was with his permission.
Fred Millican testified that he was acquainted with the property, didn’t know the exact boundary lines, but had walked over it with Mizell many times during the last four years, the two hunting and fishing together. He said that no one objected to their being on the property and he knew that Mizell had claimed up to, and across, the creek , which was a portion of the property here in dispute.
Summarizing, Mizell received a deed to 10.38 acres of land, paid for that amount of acreage at an agreed price per acre , the purchase being made from an individual familiar with land surveys, recorded his deed about four years before the purchase by Hyatt, the latter making no effort to ascertain the status of the title. We certainly cannot agree that the evidence was clear, cogent and convincing that a mutual mistake was made, nor did the evidence establish fraud on the part of Mizell.
As far as damages are concerned, we find no preponderance of evidence that would enable us to say the chancellor was incorrect in that finding.
Reversed as to the title of the property; affirmed as to the failure to award damages. The decree is thus reversed, and the cause remanded to the chancery court for further proceedings not inconsistent with this opinion.
It is so ordered.
Fogleman, J., concurs.
The record is not clear why the deed was made to Wanda Hyatt. Carter testified that he sold and conveyed to Hyatt and wife, the consideration being work done by Hyatt on Carter’s property.
In addition to the other allegations, claim for damages was also based on a contention that a dam which had been constructed by Hyatt on Hyatt’s own property had caused a creek on the 3 1/2 acres in dispute to fill up with dirt and further, had caused an erosion of the creek bank. The contention was really that the damage occurred because Hyatt had failed to properly maintain his dam.
Sewell v. Umsted, 169 Ark. 1102, 278 S.W. 36.
Ron Hatfield testified on behalt of Hyatt, but his testimony dealt with damages.
From the evidence of Mrs. Carter:
“Q. He did pay you $100.00 an acre I believe for that land?
A. Yes, for 10 3/4 acres.
Q. And you want him to have this 10 3/4 acres?
A. I certainly do.” | [
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George Rose Smith, Justice.
The three appellants, Daniel Ingram, Jr., Raymond Pruitt, and Willie Stovall, were tried jointly, convicted of rape, and sentenced to thirty years imprisonment. We find no merit in their four contentions for reversal.
On the night of July 18, 1972, Mr. and Mrs. Danny McCulley, both 19 years old, were hitchhiking in Pulaski county on their way back to their home in Florida. They were picked up by the three appellants, residents of Pulaski county, who promised to take the McCulleys to Memphis. Instead, the appellants drove to an isolated spot outside North Little Rock, where they locked Mc-Culley. in the trunk,of the car and successively raped Mrs. McCulley. Upon releasing McCulley the appellants took his watch, which was a Seiko “week-dating” watch with a cracked crystal. When the appellants drove off, the Mc-Culleys made their way to a farmhouse and called the police.
Within a day or two the sheriff’s department, apparently acting upon the McCulleys’ description of the appellants’ car, arrested the three appellants. All three men signed confessions, which the trial judge, after a Denno hearing, found to have been voluntary. The McCulleys identified the three men. The McCulleys also testified that when the appellants first stopped their car at the scene of the crime and pretended to be looking for some sort of mechanical trouble, the McCulleys handed them a book of matches. The officers found in the appellants’ car a book of matches advertising the McCulleys’ bank in Florida. The defendant Stovall led the officers to the place where he had thrown McCulley’,s watch, which was recovered. The McCulleys identified the matches and the watch.
The appellants first argue that the trial court should not have allowed the State to prove that the appellants robbed McCulley of his watch, it being contended that the robbery was a separate crime having no bearing upon the charge of rape. The testimony about the robbery, however, must be considered along with the proof that Stovall assisted the officers in finding the watch. The proof was clearly relevant, as tending to show that the appellants were the perpetrators of the rapes. Stone v. State, 162 Ark. 154, 258 S.W. 116 (1924).
The appellants’ second and third points have to do with the prosecuting attorney’s use of Ingram’s confession in the course of cross-examining Ingram himself. This is the background for the appellants’ present contentions: The three confessions had been introduced by the State as part of its case in chief, but in each confession all references to the other defendants by name had been deleted in an effort by the State to comply with our holding in Mosby v. State, 246 Ark. 963, 440 S.W. 2d 230 (1969). Later on each defendant took the stand and testified in his own defense. Each one denied his participation in the rapes and, with supporting witnesses, testified that he was somewhere else at the time the offenses were supposedly committed. Each defendant also testified that his own confession, although admittedly signed by him, had been obtained by police brutality and was not true.
The prosecuting attorney, in cross-examining Ingram, was permitted to read from Ingram’s original confession rather than from the modified version in which the names of Pruitt and Stovall had been deleted. The trial judge, in allowing that procedure, instructed the jury that the confession was to be considered only with respect to Ingram’s credibility and was not to be considered as evidence against the other two defendants.
We find no error. The original unexpurgated confessions were at first inadmissible only because they were evidence implicating the codefendants without affording the latter their constitutional right of cross-examination. But that objection disappeared when all the defendants elected to testify, submitting themselves to cross-examination. Jackson v. State, 253 Ark. 1116, 491 S.W. 2d 581 (1973). We are not impressed by the appellants’ insistence that the Jackson case is to be distinguished on the ground that there the codefendant testified favorably to the complaining appellant, while here the codefendants testified favorably only to themselves. In effect each appellant stated on oath that the McCulleys and the police officers had all testified falsely. We fail to see how that testimony can be regarded as being either unfavorable to the codefen-dants or restrictive of their right of cross-examination.
The appellants also argue, without citation of authority, that the prosecuting attorney should not have been allowed to use Ingram’s original confession for impeachment purposes, because it was not introduced in evidence. A complete answer to that argument is that Ingram’s confession, as we have said, became admissible when he took the stand. Had there been any request by the defendants that it then be introduced in evidence, that request would doubtless have been granted. There was no such request, nor is there any indication that the court’s procedure was prejudicial to the defendants.
Finally, the appellants contend that the trial court should have granted their motions for separate trials. Whether the defendants in a non-capital case (as this one now is) are entitled to a severance rests in the sound discretion of the trial court. Perkins v. State, 217 Ark. 252, 230 S.W. 2d 1 (1950). Inasmuch as all three of the appellants denied their participation in the offenses and sought to establish alibis, there was no essential conflict in their defenses. We are unable to say that the trial judge abused his discretion in requiring the appellants to be tried together.
Affirmed. | [
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Minor W. Millwee, Justice.
This is a suit by Ernest Sanders, Jr. to quiet title to a strip of land 50 feet wide and 350 feet long on the west side of Frl. Block 22 of Maxfield’s Second Eastern Addition to the City of Batesville, Arkansas, and to cancel a deed of said lands from Alph Shirley and wife. to appellee, Leona Baker. Appellant asserted ownership of the disputed strip by adverse possession since November 3,1938, when he purchased four lots in Frl. Block 22 adjoining the land in controversy on the east from Claude Hill and wife. All of Frl. Block 22 was formerly owned by Theodore Maxfield, who conveyed the four lots now owned by appellant to the latter’s predecessor in title about 1905. On December 12, 1947, the executors of the Maxfield estate conveyed lots 1 and 6 in Frl. Block 22 to Alph Shirley and wife who conveyed to appellee on April 2, 1948.
After a hearing the chancellor made the following findings: “The Court in this case is of the opinion that Mrs. Baker’s title to Lots One and Six of Fractional Block 22, Maxfield’s Second Eastern Addition, or the strip of ground 50 feet by 350 feet lying on the east side of 23rd Street is good as against the claimant Ernest Sanders, under the facts and circumstances and for reasons as follows:
“The Court is of the opinion that Mr. Sanders under the evidence has almost a perfect case of adverse possession except for one element which is the element of intent, and the facts and evidence touching on the acts of intent, as the Court sees it, are about as follows.
“First, in favor of Mr. Sanders, the evidence shows that he built a house on his own land adjacent to the. strip and during the period of occupancy had some truck patches on the strip in question, and at one time rented a portion of the strip to another party. That on another occasion when a couple of neighbors were out talking to him he told them that he owned all the land. The evidence also shows that at the time Mr. Sanders bought it and moved on the land and during the whole period of occupancy the entire piece of land was under fence and inclosed.
“On the other hand, the following, in the opinion of the Court, indicate that perhaps Mr. Sanders did not have the intent to hold the land as his own and adversely. In the first place, the Court notes that the fence was not erected by Mr. Sanders but was already there when he moved on the ground. In the second place, the block of ground in question which is Block 22 of Maxfield’s Second Eastern Addition as shown on the recorded plat is not lotted, but the plat shows that other blocks adjacent to this block were lotted and in such a manner that Lots One and Six would have comprised the strip of ground in question had Block 22 been lotted. In the third place, the deed that Mr. Sanders received from Mr. Hill to the land described his land as Lots Two, Three, Four and Five of said Block 22, which may have been some indication to Mr. Sanders and others that it was not the intention of the grantors to convey him the entire block of ground since Lots One and Six were not mentioned. All of the above facts and circumstances are to be considered with the following: In the fourth place, after the period of occupancy, one Shirley who had obtained a deed from Maxfields to Lots One and Six entered upon the land and erected a fence around the ground in question or rather on the east side of the disputed strip; that he did this apparently in the presence of and close to the home of Mr. Sanders, and it appears that Mr. Sanders at the time and at no immediate time thereafter made objection, but, on the other hand, Mr. Sanders went to Mr. Shirley, the grantor, later on to Mrs. Baker, and made an effort to purchase from him Lots One and Six, and at no time made any claim that he owned Lots One and Six. And in the next place, and to the Court’s mind the strong est circumstance was that later Mr. Sanders went to the defendant, Mrs. Baker, who had purchased from Mr. Shirley, and attempted to buy the lots from her; that according to the undisputed testimony of Mrs. Baker and without Mrs. Baker requesting it, Mr. Sanders went to her seven or eight times in an effort to buy the two lots, and during these conversations trades were discussed back and forth, and prices were discussed indicating trading on the face value of the lots, and at no time did Mr. Sanders indicate to her that he was claiming any interest or had ever claimed any interest in the lots in question. And the Court is of the opinion that during the period of occupancy that it was not the intent of Mr. Sanders to claim title to this strip of land.” A decree was accordingly entered dismissing appellant’s complaint and quieting' title to the land in controversy in appellee.
For reversal it is earnestly insisted that the chancellor’s conclusion that appellant did not intend to hold the lands adversely is against the preponderance of the evidence. It is well settled that the intention to hold adversely is an indispensable element of adverse possession. Moir v. Bailey, 146 Ark. 347, 225 S. W. 618. Appellant argues that no weight can be attached to his conversations and negotiations with appellee and others in which he sought to purchase the disputed tract and made no contention at the time that he was claiming title thereto. It is insisted that when these negotiations took place appellant’s title by adverse possession had already vested and could not be divested by parol abandonment under the rule recognized in Stroud v. Snow, 186 Ark. 550, 54 S. W. 2d 693, and Hart v. Sternberg, 205 Ark. 929, 171 S. W. 2d 475. In Deweese v. Logue, 208 Ark. 79, 185 S. W. 2d 85, we said: “It is true, admissions and declarations made by claimant after a title has been acquired by adverse possession cannot operate to defeat it, but they are nevertheless admissible to show the character of possession prior to the lapse of time necessaiy to give title and bear on the question whether claimant’s possession was in fact hostile. See 2 C. J. 272; Hutt v. Smith, 118 Ark. 10, 175 S. W. 399. In the case of Russell v. Webb, 96 Ark. 190, 131 S. W. 456, this court upon rehearing said: ‘Any act or conversation recognizing the claim of the original owner after the seven years’ occupancy would tend to show that the possession held during the statutory period was not adverse. Though such testimony is not admissible for the purpose of divesting title out of the adverse occupant and revesting it in the original owner, it is perfectly admissible for the purpose of showing that the possession of the occupant was not adverse, and that the occupant did not acquire title by the possession, which was only permissive. Shirey v. Whitlow, 80 Ark. 444, 97 S. W. 444; Hudson v. Stilwell, 80 Ark. 575, 98 S. W. 356.’ ” See, also, Sloan v. Ayers, 209 Ark. 119, 189 S. W. 2d 653; Lowe v. Cox, 210 Ark. 169, 194 S. W. 2d 892.
Appellant did not specifically deny the conversations and negotiations with appellee and others relative to his offer to purchase the property nor did he assert that such offers were made for the purpose of buying his peace and avoiding litigation. As reflected by the chancellor’s findings, the question whether appellant occupied the property in dispute with the intent to claim adversely is sharply disputed. In view of the chancellor’s favored position in passing on the credibility of the various witnesses, we cannot say that his determination of this factual issue is against the preponderance of the evidence.
Appellant also contends that the deed to appellee from Alph Shirley and wife is defective in that it describes lands which cannot be located by reference to the official plat of Block 22. The recorded plat shows Frl. Block 22 to be 350 feet long running north and south along the east line of 23rd St. between Boswell and Porter Streets. The deed to appellee contains the following description: “Lots One (1) and Six (6) in Frl. Block Twenty-two (22) of Maxfield’s Second Eastern Addition to the City of Batesville, Arkansas. Said Lots are 50 feet on Boswell and 50 feet on Porter Street, and 350 feet on line of 23rd Street, and are on intersection of Boswell and 23rd Streets and Porter and 23rd Streets. ” ¥e have said that the office of the description in a deed is not to identify tlie land, bnt to furnish the means of identification. American Investigation Co. v. Gleason, 181 Ark. 739, 28 S. W. 2d 70. It is true that Frl. Block 22 is not subdivided into lots on the official plat but, as pointed out by the chancellor, other blocks in the addition are subdivided in such manner that Lots 1 and 6 would have comprised the property in controversy had Frl. Block 22 been subdivided. The property in controversy may readily be identified by reference to the official plat from the description used in the deed to appellee.
Moreover, we have repeatedly held that in suits to quiet title the plaintiff must succeed, if at all, as in actions of ejectment, upon the strength of his own title, and cannot rely upon the weakness of his adversary’s title. Bullock v. Duerson, 95 Ark. 445, 129 S. W. 1083; Chavis v. Henry, 205 Ark. 163, 168 S. W. 2d 610. Appellant had no record title to the land in controversy. Since we have concluded that the chancellor’s finding on the issue of adverse possession is not against the preponderance of the testimony, it follows that the decree must be affirmed. | [
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Mehaeey, J.
This suit was brought in the Union Chancery Court by Mrs. Bettie Graves against her husband, Buchanan Graves, Jr., the B. H. So M. Oil Company and others to impound a sufficient portion of the proceeds of future runs of oil accruing to the one-twenty-fourth interest formerly owned by her husband in the property described in her complaint, to the end that her inchoate right of dower in said property may be protected. Buchanan Graves, Sr., is the owner of the west half of southeast quarter and the southeast quarter of the southwest quarter of section 3, township 16 south, range 15 west, in Union County, Arkansas. In 1922 Buchanan Graves, Sr., and his wife, Jinnie Graves, executed an oil and gas lease covering said lands to W. G. Sanford and Crawford and Sabastian, who went upon the land and drilled a number of commercial oil wells in 1922 and 1923, and said wells are still producing large quantities of oil and will continue to do so for some time to come. On February 1, 1924, Buchanan Graves, Sr., and Jinnie Graves, his wife, conveyed by warranty deed a one-twenty-fourth undivided interest in and to all the oil and gas and other minerals under the above described land to Buchanan Graves, Jr. Appellee and Buchanan Graves, Jr., were married in October, 1926. On January 7, 1927, Buchanan Graves, Jr., conveyed as a single person to the B. H. So M. Oil Company the same property that Buchanan Graves, Sr., had conveyed to him. Bettie Graves was the wife of Buchanan Graves, Jr., at the time he conveyed said property as a single person, and she is still his wife. The land has no value except the oil and gas, and is being depleted rapidly and will in a few years become entirely depleted and valueless. Appellee is 26 years old, in good health and lives in Calhoun County on a farm. Her husband is 32 years old, and it is alleged that he is addicted to strong drink; that he often becomes intoxicated and is vicious. He lives at Smack-over, and they have been separated since May 1, 1929. Buchanan Graves, Jr., does not own any interest in land and never has except as above described. Appellant filed a demurrer which the court overruled, appellant declined to plead further, and the court rendered a decreé in favor of appellee,- ordering appellant to pay into the registry of the court one-third of the proceeds of the royalties accruing to it from the filing of the complaint and to continue to pay into the registry of the court one-third of the royalties accruing thereafter, which sums are to be impounded for the protection-of appellee’s inchoate right of dower. Appellant prosecutes this appeal to reverse said decree, and appellee prosecutes a cross-appeal alleging that she is entitled to have one-half impounded instead of one-third.
Appellant states that the case of Tatum v. Tatum, 174 Ark. 110, 295 S. W. 720, does not support the contention of appellee in this case, because in the Tatum case the plaintiff’s husband was the owner of the land and refused to execute the deed and relinquish her dower. We said in the Tatum case, quoting from an earlier case, “The old books are full of intimations that dower was a favorite of the common law. In Lily’s Abr. 666 (Chilton’s Probate Court Law and Prac.'372), it is said that dower is favored in law to a high degree and is held sacred only next, to life and liberty,” and immediately after quoting the above, we said: “After a careful consideration of the whole matter, the majority of us are of the opinion that the inchoate right of dower is more nearly like the interest of a contingent remainderman,' who may be protected by impounding the funds in cases like this as was done in the case of Watson v. Wolf-Goldman Realty Co., 95 Ark. 18, 128 S. W. 581 ; Ann. Cas. 1912A, 540.” It is settled by the decision in the Tatum case that the wife’s inchoate right of dower may be protected by impounding the proceeds of the sale as was done in that case. Numerous authorities’ were cited and reviewed in that case, and it is not necessary to cite them and comment on them here. The decision in the Tatum case settles this case unless it may be distinguished, because in the Tatum case the husband was the owner of the land and in this case he is not. We think, however, the same principle applies because it is settled by the decisions of this court that the rights granted to a lessee are not a mere license but an interest and easement in the land itself. If the interest involved here or the property owned by the husband is an interest in land, then the same rule applies as was applied in the Tatum case, and under our decisions the property of the husband in this case was an interest in the land. State ex rel. Atty. Gen. v. Ark. Fuel Oil Co., 179 Ark. 848, 18 S. W. 906 ; Standard Oil Co. of La. v. Oil Well Salvage Co., 170 Ark. 729, 281 S. W. 360 ; Stewart v. Robinson, 289 Fed. 689 ; Smith v. McCulloch, 285 Fed. 689 ; Rich v. Donaghey, 71 Okla. 204, 177 Pac. 76 ; Barnsdall v. Gas Co., 225 Pa. 238, 74 Atl. 207 ; Blair v. Clear Creek Oil & Gas Co., 148 Ark. 310, 230 S. W. 286.
The record in this case shows conclusively that the land is practically worthless except for the gas and oil. Therefore, if the husband is permitted to sell the oil and gas, he can thereby deprive the wife of all the value of the land. Where agricultural land or any ordinary land is sold, and the wife does not sign the deed, she still has her dower in the land and she cannot maintain a suit for it because there is no possibility of it getting away or being put beyond her reach, but in the instant case, the only value the land has is the gas and oil, and if that is permitted to be disposed of by the husband without protecting the inchoate dower right of the wife, she would thereby be deprived of the entire value of the land against her will. The decision in the Tatum case is controlling here, and the chancellor’s decree impounding a part of the proceeds is correct.
The appellee prosecutes a cross-appeal and contends that there should be one-half of the money impounded in stead of one-third. The statute provides that if one dies without children, the widow shall be endowed with one-half of the real estate against collateral heirs, but only one-third against creditors. Section 3526, Crawford & Moses’ Digest. It is also provided that where a husband owns land and the wife is adjudged insane, he may be permitted to sell the land by depositing in court one-third of the purchase price. Section 3563, Crawford & Moses’ Digest. Construing the two sections of the digest together, we have reached the conclusion that only one-third should be deposited. She is in no event entitled to more than one-third against creditors, and we therefore think the chancellor’s finding and requiring a deposit of one-third is correct.
The decree is therefore affirmed both on appeal and cross-appeal.
Smith and Kirby, JJ., dissent. | [
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Mehaeey, J.
This appeal is prosecuted to reverse a decree of the Jefferson Chancery Court. The appellant is a corporation organized for the purpose, among other things, to purchase and sell cotton and to engage in and carry on the business of buying and selling cotton. It had been engaged in the business in Pine Bluff many, years prior to 1926. 'Charles White was its local manager, and C. E. Shank was auditor and assistant manager. The Merchants’ & Planters’ Bank, the appellee, was engaged in the banking business and in advancing money to various cotton buyers in Pine Bluff. A short time prior to September 9, 1925, Charles White and C. E. Shank went to the cashier of the Merchants’ & Planters’ Bank and told him, that they wanted to move the R. L. Willun-s & Company cotton account from the Simmons National Bank to the Merchants ’ & Planters ’ Bank, and wanted the Merchants’ & Planters’ Bank to pay the checks of R. L. Wilkins & Company, and that the Lesser-Goldman Cotton Company would guarantee the account to them. They told the cashier that Wilkins would buy ootton for them for that year for the Lesser-Goldman Cotton Company, and that the checks in payment of the ootton would be signed 'R. L. Wilkins & Company, but they would guarantee the payment of the checks. The agreement was verbal. The first money advanced under this agreement to Wilkins & Company was on September 9,1925. During the year of 1925 the bank advanced as high as $110,000 at one time on this account. ' From September 9 to December 3, 1925, the bank paid for over thirty lots of ootton ranging in sums from $232.40 to in excess of $10,000. White’s- signature and Shank’s and R. L. Wilkins’ were all authorized -on the account. So far as the cashier knew, Wilkins bought cotton for the Lesser-Goldman Cotton Company. R. L. Wilkins had been buying cotton for Lesser-Goldman, and the cashier was told that he would buy that year for Lesser-Goldman. All the accounts of R. L. Wilkins & Company were paid by Lesser-Goldman Cotton Company except the amount sued for herein. The cotton, which was purchased and not paid for by the Lesser-Goldman Company, is called the Gocio cotton. The practice was for Wilkins to advise the office of the class of the cotton, and the St. Louis office would then fix the price. As to the Gocio cotton, the St. Louis office fixed a price of 17 cents and Wilkins paid 18 cents, but he testified that he was directed by Shank, who was in charge of the office at Pine Bluff, not to let this cotton get away, but to buy it, and he- had to pay 18 cents to get it. Wilkins was at this time, and had been for a long while, buying cotton for Lesser-Goldman Cotton Company on a commission. When Wilkins bought cotton, the Merchants’ & Planters’ Bank would pay his checks and thereafter the bank would be paid by Lesser-Goldman Cotton Company.
Several witnesses testified, and the evidence is quite lengthy, but the above statement of facts, together with such evidence as may be mentioned in the opinion, will be sufficient without copying all the evidence.
The agreement referred to between the agents of the Lesser-Goldman Cotton Company and the bank was verbal. However, it is contended that, as to every other lot of cotton except the Gocio cotton, there was a letter written by the Lesser-Goldman Cotton Company, and that there was no letter written with this, and appellant’s first contention is that there was no proof that appellee had any letter from Lesser-Goldman, Cotton Company covering the Gocio cotton.
Jim McLellan, cashier of the bank, testified that to the best of his recollection a letter was given in the Gocio purchase. It is, however, immaterial whether a letter was given with this purchase or not. The Lesser-Goldman Cotton Company was authorized by its charter to engage in the cotton business, and had been engaged in this business in Pine Bluff for many years. Charles White was its local manager at Pine Bluff, and C. E. Shank was auditor and assistant manager,. The Merchants’ & Planters’ Bank was engaged in advancing money to various cotton buyers in Pine Bluff. The cashier of the bank had known the management of the Lesser-Goldman Cotton Company (by reputation prior to September 25, 1925. A short time prior to 'September 9', 1925, Charles White and C. E. Shank went to the bank and told the cashier that they wanted to move the R. L. Wilkins Company account from the Simmons National Bank to the Merchants’ & Planters’ Bank. They wanted the bank to pay the checks of R. L. Wilkins & Company, and they stated that the Lesser-Goldman Cotton Company would guarantee the account. White and Shank told the cashier that Wilkins would buy cotton for them that year for the Lesser-Goldman Cotton Company. During the year large amounts had been advanced by the bank, and the bank was afterwards paid by the Lesser-Goldman Cotton Company. The first advance was made September 9, and the last December 3,1925.
It is contended by appellant that, because there was no letter with this purchase, the Lesser-Goldman Cotton Company was not liable because it was an attempt to charge the appellant upon a specific promise to pay the debt of another, and that, unless there was an agreement in writing, this promise under the statute of frauds was not binding. We do not agree with appellant in this contention. In the first place, the purpose of the provision in the statute of frauds forbidding the bringing of any action to charge any person upon any specific promise to answer for the debt, default or miscarriage of another was not to effectuate a fraud or wrong but its purpose was to prevent fraud. It has never been held to apply to promises in respect to debts created at the instance and for the benefit of the promisor, ,but only to those by which the debt of one party is sought to be charged upon and collected from another. In the instant ease, this was not a promise to pay the debt of another, was not a guarantee to pay the debt of another, it was a promise of appellant to pay its own debt created by its agent that it had at least clothed with apparent authority to make the contract. The business of the Lesser-Goldman Cotton Company was to buy and sell cotton. The agents in charge of its business at Pine Bluff stated to the bank that Wilkins was buying cotton that year for the Lesser-Goldman Cotton Company. The only way Lesser-Goldman Cotton Company could buy cotton was through an agent. Therefore, when this arrangement was made with the bank, it was an agreement to pay the checks drawn by appellant’s agent for cotton purchased for appellant, and the statute of frauds has no application. Davis v. Patrick, 141 U. S. 479, 12 S. Ct. 58. This arrangement was made with the bank in the interest and for the benefit of the Lesser-Goldman Cotton Company through appellant’s agent. 27 C. J., p. 136; Robinson & Son Contracting Co. v. Twin City Bank, 103 Ark. 219, 146 S. W. 523 ; United Walnut Co. v. Courtney, 96 Ark. 46, 130 S. W. 566, Ann. Cas. 1912B, 443 ; Brown v. Morrow, 124 Ark. 480, 187 S. W. 449 ; Hinson v. Gillespie, 131 Ark. 240, 199 S. W. 97 ; Colbath v. E. D. Clark Seed Co., 112 Me. 277, 91, Atl. 1007 ; Kelly Handle Co. v. Crawford Plumbing & Mill Supply Co., 171 N. C. 495, 88 S. E. 514 ; Cascaden v. Bell, 257 Fed. 926 ; Cincinnati Traction Co. v. Cole, 258 Fed. 169.
It is said, however, that "White and Shank did not have authority to borrow money or guarantee the accounts of others. It is conceded that they did have authority to buy cotton for Lesser-Goldman Cotton .Company; they had been doing this for years, and the Lesser-Goldman Cotton Company had been paying the accounts, and there is no question in this case of guaranteeing the accounts of others. It is merely a question of paying for the cotton bought for the appellant by its agent, and therefore the question of ultra vires argued by appellant has no application here. We therefore conclude that the Lesser-Goldman Cotton Company was liable for the accounts made because of the purchase of cotton by its agent, whether there was any letter written or not.
Appellant also contends that lit was unlawful to charge it with 8 per cent, interest compounded monthly, and in this contention we agree with appellant. Mr. H. M. Bennett, a witness for appellant, testified with reference to the account that, ignoring the credit balance of November 23, and taking the two lots of cotton account and figuring the interest at 8 per cent, per annum, there would be a balance due the bank of $879.67 as of October 6, 3927. This calculation by Mr. .Bennett appears to us to be correct, and the appellee is entitled to recover $879.67 with interest from October 6, 1927, at 6 per cent, per annum. The decree of the chancery court is therefore modified and a decree entered here for $879.67 with interest from October 6,1927. It is so ordered. | [
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MiNOR W. Millwee, Justice.
Appellant was convicted of the crime of sodomy and his punishment fixed at 5 years in the penitentiary. The victim of appellant’s alleged perverted lust was a ten-year-old boy.
The first five assignments in the motion for new trial challenge the sufficiency of the evidence to support the verdict and judgment, and allege error in the overruling of appellant’s motion for a directed verdict at the conclusion of the State’s testimony.
The evidence on behalf of the state is briefly as follows : On the night of October 7,1949, Jimmy, the 10-year-old lad, a 13-year-old brother and a neighbor boy attended a carnival in the City of Van Burén, Arkansas. Jimmy was fascinated by the “little ponies” and the employee in charge of the animals permitted the lad to assist him. A “little car” attraction and a merry-go-round were nearby. Appellant who was in charge of the cars, asked the employee in charge of the ponies if Jimmy had been paid for his work. The lad stated that he wanted no pay. Later, appellant said to the boy: “Come around later when nobody is around I will give you some free passes. ” The boy returned later in the evening when the carnival grounds were practically deserted. A circular curtain had been placed about the merry-go-round which was closed for the night. Appellant enticed the boy into the merry-go-round on the pretext of obtaining the promised passes. The unsuspecting lad was there restrained and the unnatural act perpetrated against his will. During the course of the bestial transaction appellant bit tbe boy’s penis. Jimmy “hollered” and appellant “let go,” whereupon the frightened and injured boy ran home and tearfully told his grandmother: “Oh, the carnival man . . . he ruptured me.” The boy’s bloodstained underwear was removed and germicides were applied to the broken and bleeding foreskin. Officers were summoned who accompanied Jimmy to the carnival grounds where appellant was identified and taken into custody. The next day a physician found the boy’s penis discolored and bruised. The bloody underwear was introduced in evidence at the trial.
Appellant argues that the 10-year-old boy is an accomplice whose testimony is not sufficiently corroborated, under Ark. Stats. (1947), § 43-2116, to support the verdict. We have approved the following test generally applied to determine whether one is an accomplice: “Could the person charged (as an accomplice) be convicted as a principal, or an accessory before the fact, or an aider and abetter upon the evidence? If a judgment of conviction could be sustained, then the person may be said to be an accomplice; but, unless a judgment of conviction could be had, he is not an accomplice. ’ ’ Simon v. State, 149 Ark. 609, 233 S. W. 917; Henderson v. State, 174 Ark. 835, 297 S. W. 836. Under Ark. Stats. (1947), § 41-112, an infant under 12 years of age cannot be convicted of any crime or misdemeanor. Since a 10-year-old child could not be convicted of sodomy, he cannot be said to be an accomplice. Moreover, the evidence here is that the infant did not voluntarily participate in the unnatural act and did not consent thereto. Hence, his uncorroborated testimony would support a conviction. Woolford v. State, 202 Ark. 1010, 155 S. W. 2d 339; Hummel v. State, 210 Ark. 471, 196 S. W. 2d 594.
As judges of the credibility of the witnesses, the jury believed the testimony offered by the state and rejected appellant’s denial of the truthfulness of such testimony. The evidence was sufficient to convict and the trial court correctly overruled appellant’s motion for a directed verdict of not guilty.
The sixth assignment of error is that the court erred in allowing* the introduction in evidence of certain pictures without being properly identified and without a proper foundation being laid. Tommy Wilbanks, one of the investigating officers, testified on cross-examination by counsel for appellant that he found several pictures of young boys in appellant’s billfold when the latter was arrested. Appellant testified that he had no pictures in his possession and denied that he placed them in a letter to be mailed to a person in another state. Vergil Goff, the other arresting officer, then testified that he was present when a letter written by appellant to someone in another state was opened bjr the chief of police and the pictures removed, and that he read the letter. Appellant objected to testimony concerning the letter on the ground that the letter itself would be the best evidence. The court sustained the objection. The witness then testified that the letter, with the pictures removed, was forwarded to the addressee in another state. Appellant then objected to introduction of the pictures in evidence, “unless Mr. Goff was present when the pictures were taken out of the letter, and can testify to this jury that they came out of that letter.” The witness again stated that he saw the pictures removed from the letter but was not present when the letter was actually intercepted by the chief of police. Appellant renewed his objection on the ground that there was no proof connecting him with the pictures. After the objection was overruled, the contents of the letter were for the first time fully developed by appellant’s cross-examination of the officer, who testified that the letter stated that appellant was in trouble and that he wanted the pictures “taken care of.”.
We conclude that the pictures were sufficiently identified as being in appellant’s possession and that a proper foundation was laid for their introduction in evidence. Evidence of the contents of the letter, other than the pictures, was brought out by appellant and not the state. Since the letter was sent outside the state and beyond the court’s jurisdiction, secondary evidence was admissible to prove its contents. Ritter v. State, 70 Ark. 472, 69 S. W. 262; Knego v. State, 171 Ark. 58, 283 S. W. 27; Underhill’s Criminal Evidence (4th Ed.), § 104. Introduction of the six “snapshots” was not objected to as an attempt to impeach appellant’s testimony on a collateral matter, and that the photographs were not inadmissible on the grounds urged. Again, it was appellant who first developed the facts relative to possession of the photographs on the cross-examination of officer Wilbanks. There is nothing inflammatory or of a prejudicial nature in the appearance of the photographs and the fact that the minimum punishment was assessed tends to negative any prejudicial effect on the jury.
The seventh and last assignment of error in the motion for new trial is that the court in an instruction invaded the province of the jury by commenting on the weight and sufficiency of the evidence. Neither the state nor the appellant requested the giving of any instructions. After the court had fully instructed the jury on its own motion, appellant objected to the following sentence in an instruction given: “Gentlemen, whether the child’s penis was bruised or bleeding or not, that would be immaterial, except that the prosecuting attorney has offered that as evidence that the defendant did take it into his mouth.” We cannot agree.with appellant’s contention that the court’s statement amounted to a demand that the jury bring in a verdict of guilty, or that it constituted prejudicial comment on the weight of the evidence. In the lengthy instruction from which the sentence is taken the trial court read to the jury Ark. Stats. (1947), §§ 41-813 and 814. The latter section requires proof of actual penetration to sustain the charge. Proof of the bo}r’s injured condition was certainly admissible to establish penetration and the court’s limitation of the jury’s consideration of such proof was favorable, rather than prejudicial, to appellant. If counsel for appellant thought the verbiage used subject to criticism, he should have prepared a request in more appropriate language. Redd v. State, 65 Ark. 475, 47 S. W. 119,
Other alleged errors are argued but were not brought forward in tbe motion for new trial and must be regarded as having been waived. Collier v. The State, 20 Ark. 36.
Tbe judgment is affirmed. | [
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McHaney, J.
Appellee, Phillips, a merchant of Camden, Arkansas, took out a policy of fire insurance with appellant on his stock of merchandise for $2,500, dated March '22, 1928. Thereafter on May 31, 1928, Phillips sold and assigned the insured property to appellee Barton, as trustee, and appellant’s agent, Benson, made the following indorsement on the policy: “The interest of Prank Phillips, as owner of the property insured under this policy, is hereby transferred to C. L. Barton, as trustee, purchaser, P. P. Benson, agent.” Barton took possession and employed Phillips and other salesmen to conduct the business. On July 12, 1928, Benson secured possession of the policy in question from Phillips for the purpose, according to Phillips of looking it over. He took it to his office, and, without notice either to Phillips or Barton, made this indorsement thereon: “Cancelled 7-12-28, rate pro-rated by the company, return premium $22.40,” and sent same to appellant’s general agents in Dallas, Texas. On July 21, 1928, the building and contents were totally destroyed by fire originating in a property nearby. Proper proof of loss was made in apt time, but appellant refused the claim on the ground that the policy had been canceled. ' This suit followed, resulting in a verdict and judgment for appellees for $2,500, penalty and attorney’s fees. .
Appellants first contention for a reversal of. the case is that the court erred in refusing its request for a peremptory instruction - in its favor for the following reasons:
1. That the total concurrent insurance permitted, including the policy in question, was $12,000, and that the insured had $12,750. It is true that only said sum was permitted, and that at the time this policy was issued, it together with other policies exceeded this amount. But •the proof shows that Mr. Benson had canceled $3,250 of insurance other than the attempted cancellation of this policy, prior to the loss, which reduced the amount of insurance far below the total permitted. .Such being the case, the rule announced in the recent case of North River Ins. Co.v. Loyd, 180 Ark. 1030, 23 S. W. (2d) 988, applies, and this policy was not void because of over insurance. It therefore becomes necessary to discuss the question of waiver on account of the knowledge of Benson of such over’ insurance.
2. That the record warranty clause was violated . in three particulars, to-wit: (1) That no inventory was taken; (2) that no adequate set of books were kept; and (3) that the records were not kept in a fireproof safe. Section 1 of the record warranty clause of the policy provides that the assured must take a complete itemized inventory of his stock at least once each year, “and within twelve months of the last preceding inventory, if such has been taken.” If no inventory has been taken in twelve months prior to the date of policy, “and together with a set of books showing a complete record of business transacted since the taking of such inventory, is on hand at the date of this policy, one shall be taken within thirty days, ’ ’ or the policy shall be void. The undisputed proof is that an inventory was taken in January, 1928, less than 90 days before the policy was issued. The proof further shows that a set of books, such as the ordinary merchant usually keeps, was kept. A substantial compliance with the record warranty clause is all that is required, and we are of the opinion appellees substan tially complied therewith. Queen of Ark. Ins. Co. v. Malone, 111 Ark. 229, 163 S. W. 771 ; § 6148, C. & M. Digest. Section 2 of the same clause requires the assured to keep a set of books showing a complete record of the ¡business done, including purchases, sales and shipments, both for cash and on credit, and it is claimed this was not done. But the proof contradicts appellant. It shows that a complete record of the business done was made, and while it is true some of the invoices were destroyed, duplicates were obtained from wholesale houses and substituted. This likewise was a substantial compliance. As to the failure to comply with the 3d section of this clause, the facts are that the books and records were preserved and not destroyed, except some invoices. Appellant did not ask to see the books. It denied liability and declined to pay the loss before suit on the gro’und that the policy had been canceled. All these matters regarding violation of the record warranty clause were considered and determined adversely to the contention of appellant in Royal Ins. Co. of Liverpool v. Morgan, 122 Ark. 243, 183 S. W. 198.
3. That Barton had completed his trust and should have been discharged; that he had no further interest in the suit. We cannot agree with appellant in this regard. While it is true that the major portion of the object of the trusteeship has been accomplished, it is not all completed. Considerable litigation with insurance companies has necessitated the employment of counsel and an adjuster, who have not been paid for their services, nor has appellee been paid for his services as trustee.
Other questions are argued by counsel for a reversal of the case—that the court erred in refusing to transfer the cause to equity on its motion, that the value of the property destroyed was not proved, and error in the admission of certain testimony—all of which we have carefully considered and find the points not well taken. We think it would serve no purpose to discuss them in detail.
We find no error, and the judgment is affirmed. | [
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Frank Holt, Justice.
Appellee sued appellant for breach of an oral contract for the purchase and installation of certain materials during the construction of appellant’s house. Appellee was awarded $5,000 by a jury. For reversal of the judgment appellant asserts the jury’s award of damages was based upon speculation and conjecture. We must agree that appellee did not sufficiently prove his damages or loss of potential profits with reasonable certainty.
The proof of lost profits must be shown by evidence which makes it “reasonably certain” what the plaintiff would have made. Farmers Cooperative Assn. v. Phillips, 241 Ark. 28, 405 S.W. 2d 939 (1966), Black v. Hogsett, 145 Ark. 178, 224 S.W. 439 (1920). The plaintiff must produce a “reasonably complete set of figures, and not leave the jury to speculate as to whether there would have been any profits.” Sumlin v. Woodson, 211 Ark. 214, 199 S.W. 2d 936 (1947). The proof must be sufficient to remove the question of profits from the realm of speculation and conjecture. Reed v. Williams, 247 Ark. 314, 445 S.W. 2d 90 (1969). The value of appellee’s own services in completing the contract is a necessary element in computing the cost of performance. Gibney v. Turner, 52 Ark. 117, 12 S.W. 201 (1889). See also Columbus Mining Co. v. Ross, 218 Ky. 58, 290 S.W. 1052 (1927, and Jowers v. Bysard Construction Co., 113 S.C. 84, 100 S.E. 892 (1919). In the case at bar, the defect in appellee’s proof is his failure to offer evidence as to the value of his own services in the performance of the construction contract.
Lost profits, which are the basis for the award of damages here, are determined by the formula: contract price minus cost of performance equals profit. The profit in this case, a cost plus contract, rests upon 15% of certain materials purchased and whatever profit ap-pellee would make on the $12 per hour labor for installation.
The actual labor cost consists of the cost of a tile setter and helper. The helper was to be paid at the rate of $2.75 per hour, leaving $9.25 per hour in labor cost. Appellee was to be the tile setter and there is no testimony as to what his hourly wage was worth. Without evidence as to the value of appellee’s individual time, we have no way of ascertaining how much profit was to be made on the remaining $9.25 an hour of labor cost. Without that figure, damages are speculative.
Appellant next contends that appellee failed to prove a contract. The uncontradicted testimony of appellee (appellant did not testify) is that when he asked appellant if $12 per hour for labor plus 15% of the cost of certain materials would be satisfactory, appellant said “yes.” Ap-pellee also testified that when they completed their negotiations appellant said “[V]ery good, this is the way we will do the job.” There was also an understanding as to the time and method of payment. A factual dispute as to the existence of a contract properly presents a question for the jury. Bush v. Wofford, 139 Ark. 330, 213 S.W. 751 (1919), Honey v. Caldwell, 35 Ark. 156 (1879). The evidence in the instant case was certainly sufficient to create a question of fact for the jury as to the existence of a contract.
Appellant next contends that the contract would be prohibited by the statute of frauds, Ark. Stat. Ann. § 38-101 (Repl. 1962), since it could not be performed within one year. However, there was evidence that by employing additional help, appellee could have completed the job in six months. Since the contract was capable of performance within one year, it was not prohibited by the statute of frauds. Frieder v. Schleuter, 105 Ark. 580, 151 S.W. 696 (1912).
Appellant next cites Ark. Stat. Ann. § 85-2-201 (Add. 1961) which renders unenforceable an agreement for sale of goods in excess of $500 absent some writing. The cost of the materials appellee was to furnish exceeded $15,000. § 85-2-201 deals with the “sale of goods” and is inapplicable to personal service contracts. Even though it be said that the material appellee was to purchase and furnished constitutes goods within the definition of § 85-2-105 and part of appellee’s profit is to be gained on cost plus 15% on the material, nevertheless, the essence of the agreement is a service contract for appellee to install tile in appellant’s home. Unless the principal object of the agreement is for sale of goods, then § 85-2-201 is inapplicable. See Huyler Paper Stock Co. v. Information Supplier Corp., 117 N.J. Super. 353, 284 A. 2d 568 (1971).
Appellant’s final contention for a directed verdict is that “the damages alleged by the appellee could not have been in contemplation of the parties at the time the contract was made, or that such damages were the proximate result of appellant’s wrongs.” This contention is meritless. In the case at bar, loss of profits is naturally the proximate result of a breach of contract. Appellee’s loss of profits is also the type of a foreseeable loss that would be within the reasonable contemplation of the parties at the making of the contract.
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Conley Byrd, Justice.
Appellant Sidney Howard Gipson was convicted by a jury of being an accessory to felony murder. At his trial he was represented by employed counsel, the Honorable Bon McCourtney. No appeal was taken from that conviction. Pursuant to Criminal Procedure Rule No. 1, appellant filed a petition for post-conviction relief citing eight different reasons why he should be granted relief — among those reasons were that his attorney was inadequate and that he wanted to appeal his case but his attorney would not take the appeal because appellant did not have $2,700.
Upon appellant’s allegation that he was a pauper, the trial court appointed the Honorable Sam Highsmith to represent him in the post conviction proceeding. Thereafter, the allegations of inadequacy of counsel and the failure of counsel to take an appeal were struck from the petition upon motion of appellant, and he was granted time to file an amended petition. The petition was then amended to allege only that the State suppressed evidence favorable to appellant. By stipulation and with the knowledge and approval of appellant that was the only issue before the court at the post-conviction hearing. To reverse the trial court’s denial of post-conviction relief, appellant, now appearing by different counsel, contends:
“I. Appellant was denied effective assistance of counsel in presenting his Motion to Vacate Sentence Under Criminal Procedure Rule No. I as provided by the Sixth and Fourteenth Amendments to the United States Constitution.
II. Appellant did not make an intelligent waiver of the points raised in his pro se petition for post-conviction relief.”
Since the contentions now made were not at issue in the trial court, the record obviously does not show any facts from which one could arrive at any conclusions. We have a long standing rule that we will not consider on appeal an issue not first raised in the trial court. For that reason we hold that the contentions now made are without merit.
Affirmed. | [
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Mehaffy, J.
Wood Phillips, appellee, commenced this suit to annul the marriage contract entered into with appellant, Crete Phillips, alleging that he was forced to marry her by threats and duress. The appellee is 48 years old, and the appellant is 35 years old. They had been acquainted more than twenty years. When the appellant was about 16 years of age, she married Jasper Culwell and one child was born to them, a girl, who is now about 13 years of age. Tbe appellee during all this time was a married man, and the father of three children. Soon after the appellant and Oulwell were married, appellee began to have illicit relations with appellant, and this continued up to the time of the marriage of appellant and appellee. This relation between appellee and appellant brought about a separation and divorce of appellant from her first husband, and she thereafter married J. W. Hensley. During the time appellant lived with Hensley the illicit intercourse between appellee and appellant continued, and this brought about a separation and divorce from her second husband. After appellant married Hensley, she lived in Conway, Arkansas, and appellee wired her to come back to her home, which was near where he lived, and she came back. Appellee’s wife died on September 29, 1929, her death being caused by cancer, from which she had suffered a long while. The illicit intercourse between appellee and appellant continued during the sickness of appellee’s wife. Appellee’s wife died on Sunday, was buried on Monday, and on the following Thursday appellee and appellant went to Eureka Springs and were married. They met at Hinds-ville, according to agreement, and drove to Eureka Springs, procured license, and were married by a justice of the peace, then went back home.
Appellee contends and testified that appellant threatened to kill him or do Mm bodily harm, and also threatened that her brothers intended to do him harm and blow up their houses unless he married her, and that it was these threats and the fear caused by them that induced him to marry appellant, and that but for this he would not have married her. He admits, however, that the illicit relationship with appellee and himself began when she was very young, shortly after she married the first time, and continued up to the time of their marriage at Eureka Springs. The undisputed evidence shows that they agreed to keep the marriage secret because of the unfavorable comment a marriage entered into so shortly after the death of his wife would cause. About one hundred citizens met and told the parties, appellant and appellee, that they should not live together in that community, and these citizens sought to have appellee convey his property to his three children. Appellant refused to sign the deed. The parties then concluded to leave the community for a while and go to California. They went as far as Locust Grove, Oklahoma, where they spent the night together, and then decided to return to their home. Appellee testified that he talked appellant into coming back; she thought they had better stay away from the community. They lived together secretly after their marriage for 23 days.
The evidence as to when the illicit intercourse between them began, and as to its continuing up to the time of their marriage, is undisputed. The only conflict in the testimony is as to the threats and duress. The appellant testified that there were no threats, and that appellee married her of his own free will. There is some slight corroboration of appellee’s testimony as to threats, but we think his own testimony disproved his contention that he was forced to marry appellant. The chancellor found that the testimony tending to prove duress preponderated in favor of the plaintiff, and that the coercion or threats of defendant continued up until the time of the suit, but he also found that the evidence of duress and coercion was weak, and that, standing alone it would not be sufficient ground to annul the marriage contract. He held, however, that society is interested in every marriage contract, and that the children of the plaintiff are a part of this society and have an interest in the result of the lawsuit, which should be protected by the court. He also held that neither the plaintiff nor defendant had any standing in a court of equity, and that, if their rights alone were to he considered, the court would dismiss the case, but that society as a whole, and especially plaintiff’s children, would suffer or be benefited by the action of the court, and that to hold the contract valid would be giving the court’s acquiescence to such conduct. He also held that if the marriage contract were annulled, society would be protected from such a morbid and unusual contract and entered a decree annulling the marriage contract.
We agree with the chancellor that the evidence tending to show duress and coercion is weak and not sufficient to justify the court in annulling the marriage con. tract.
“Every intendment of the law is in favor of matrimony. When a marriage has been shown in evidence, whether regular or irregular, and whatever the form of the proof, the law raises a strong presumption of its legality; not only casting the burden of the proof on the party objecting, -but requiring him throughout, and in every particular, plainly to make the fact appear, against the constant pressure of this presumption, that it is illegal and void. So that it cannot be applied like ordinary questions of fact, which are independent of this sort of presumption.” Estes v. Merrill, 121 Ark. 361, 181 Ark. 136.
In this case, while the appellee testified that he was induced to marry appellant by threats of bodily harm and blowing up his property, he also testified to the illicit relation with appellee extending over a number of years; that they met by agreement at Hindsville and went to Eureka Springs and were married. They came back together and lived as husband and wife. That, because of the threatening attitude of the people and the fear that they would be harmed if they remained in the community, they concluded to go away for a few days. They were ■intending to go to California and went as far as Locust Grove, Oklahoma. There appellee talked her into coming back home. She did not want to come back. It appears that he was not only not afraid of her, but that she came back because he wanted to-come back. According to appellee’s story, lie was between Scylla and Charybdis, afraid her brothers would blow up his property and do him bodily harm if he did not marry her immediately, and afraid the citizens would run him out of the country if he did marry immediately after the death of his wife. They therefore agreed to keep their marriage secret for a while, and nothing was said by him about having the marriage annulled until about 100 citizens met and notified them that they could not live together in that community. On. the night before these citizens met, appellee stayed with appellant, occupying the same room and bed. We therefore think the court was clearly right in holding that the evidence was insufficient to justify a decree annulling the marriage.
The statute under which this suit was brought reads as follows: “When either of the parties to a marriage shall be incapable from, want of age or understanding, of consenting to any marriage, or shall be incapable from physical causes of entering into the marriage state, or where the consent of either party shall have been obtained by force or fraud,,the marriage shall be void from the time its nullity shall be declared by a court of competent jurisdiction.” Crawford & Moses’ Digest, § 7041.
The subjects of marriage, divorce and annulment are regulated by statute, and no divorce can be granted for any cause other than those specified in the statute, and no decree of annulment can be had except for the causes mentioned in the statute.
“'Marriage was instituted for the good of society, and the marital relation is the foundation of all forms of government. For that reason the State has an interest in every divorce suit, and the marital relation once established continues until the marriage contract is dissolved upon some ground prescribed by the statute.” Marshak v. Marshak, 115 Ark. 51, 170 S. W. 567 ; 14 Cyc. 577 ; Ib. 593 ; 7 Enc. P. & P., p. 70.
Again it is said: “It is generally conceded in all jurisdictions that public policy, good morals and the in terests of. society require that the marriage relation should be surrounded with every safeguard and its severance allowed only in the manner and for the causes prescribed by law.” Vanness v. Vanness, 128 Ark. 543, 194 S. W. 498 ; 14 Cyc. 578.
The chancellor found that the appellee was not entitled to a decree under the statute, that the evidence was too weak to justify a decree on the ground of force or fraud. The court was without authority, as we have already said, to grant a decree'for any cause other than the cause mentioned in the statute. The decree is therefore reversed, and the cause remanded with directions to dismiss appellee’s complaint. | [
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J. Fred Jones, Justice.
This appeal is from a chancery court decree partitioning 157 acres of Jefferson County land among the descendants of Louisa J. Williams who died intestate in 1898. It is admitted by all concerned that Warren E. Williams was a surviving child and lawful heir of Louisa J. Williams. This case turns on the question of whether Ida V. Williams West was also a child and heir at law of Louisa J. Williams, or whether she was only a foster child reared in the Williams home. The chancellor found that Ida was also a child and lawful heir of Louisa J. Williams and shared equally with Warren in Louisa’s estate.
Warren E. Williams died intestate in September, 1942, and left five children, Birdie W. Parker, Milton Ne-vil Williams, Mabel W. Seamans, Idell W. Bussey and Warren Edgar Williams, Jr., as his sole surviving heirs. Ida Williams West died intestate in 1953 and left one daughter, Ñola W. Fetsch, as her sole surviving heir at law. Birdie W. Parker died intestate in September, 1969 and left surviving her husband, I. V. Parker, and four children, Eloise P. DeWeese, Virginia P. Calaway, Walter C. Parker and Dorothy M. Parker, as her sole surviving heirs at law. Dorothy died in 1971 leaving only her father, I. V. Parker, as her sole surviving heir.
Milton Nevil Williams has been in possssion of the property here involved for a number of years and on April 22, 1958, he was appointed guardian of the person and estate of his .brother, Warren E. Williams, Jr., who was mentally incompetent. On August 11, 1970, under a probate court order authorizing a private sale, he executed a guardian’s deed conveying an undivided one-tenth interest in the described real estate to his sisters, Mabel W. Seamans and Idell W. Bussey. On June 16, 1971, Mabel W. Seamans conveyed all her undivided interest in the land to Milton by warranty deed, and on February 3, 1970, Milton obtained a quitclaim deed from Nola Fetsch conveying to him all her interest in the land as the sole surviving heir of Ida Williams West and Milton now claims a three-fourths undivided interest in the property.
This action was commenced on August 4, 1971, when the above named heirs of Birdie Parker filed petition for a partition of the property naming the remaining Williams heirs as parties defendant. They alleged that the property descended from Louisa J. Williams to her only child, Warren E. Williams, and through him to the Williams heirs including their mother, Birdie Williams Parker, in undivided one-fifth interests. They alleged that when their mother, Birdie Parker, died intestate, they inherited her one-fifth undivided interest in the property; that they each own an undivided one-fourth interest in the undivided one-fifth interest in the property owned by their mother subject to the curtesy rights of their father, I. V. Parker. The petition alleged that the parties had never been able to agree on a division of the property since the death of Birdie W. Parker, and alleged that Milton had wrongfully used and occupied the premises for his own personal use and in partnership with others since August, 1956. They alleged that they were entitled to an accounting for fair rental value, the timber harvested and government payments received. They prayed for a partition in kind or in the alternative that the property be sold and the proceeds divided according to the interests of the parties.
Milton filed an answer admitting the relationship of the parties and the death and intestacy of Birdie W. Parker as alleged in the petition. He admitted the petitioners are each entitled to one-fourth of the interest owned by Birdie W. Parker. Milton alleged, however, that Louisa J. Williams died intestate on August 4, 1898, survived by two children, Warren E. Williams and Ida V. Williams West, as her sole surviving heirs at law. He alleged that Ida V. Williams West died intestate on June 3, 1953, leaving one child, Nola Fetsch, as her sole surviving heir at law. He alleged that by inheritance and purchases he became the owner of an undivided three-fourths interest in the property described in the petition and that he acquired such interest as follows:
“By inheritance from Warren E. Williams, an undivided 10%. By purchase from Nola West Fetsch, sole heir at law of Ida Williams West ... an undivided 50%. By purchase from Mabel W. Seamans ... an undivided 15%.”
Milton then alleged that no demand for rents had ever been made and denied that any timber had been harvested from the land except when damaged by fire or ice. He then alleged improvements to the land in the amount of $11,500, taxes paid in the amount of $903.10 and prayed that these expenditures be taken into consideration in the event of partition. He then alleged that he, together with Birdie Parker and Mabel Seamans, had previously conveyed their interest in other lands to Idell W. Bussey by quitclaim deed with a provision in the deed that the conveyance should be taken into consideration in determining Mrs. Bussey’s interest in the lands here involved at the time of division of the estate properties of Warren E. Williams, deceased, and he prayed that this be done. The petitioners filed a reply to the affirmative allegations of Milton in which they specifically denied that Louisa J: Williams was survived by "two” children. They denied that Ida was a child or heir of Louisa J. Williams by birth or adoption and they joined issues with Milton’s allegations of improvements.
As already stated, the chancellor found that Ida V. Williams West was the daughter of Louisa J. Williams and John J. Williams, and that upon the death of Louisa J. Williams the title to the property passed to Warren E. Williams and Ida V. Williams West as tenants in common, with each of them owning an undivided one-half interest in the property. The chancellor found the interests of the parties in the property to be as follows:
"Idell W. Bussey, an undivided 15%.
Milton N. Williams, an undivided 75%.
Walter C. Parker, an undivided 2.5%.
Eloise P. DeWeese, an undivided 2.5%.
Virginia P. Calaway, an undivided 2.5%.
I. V. Parker, an undivided 2.5%.”
The chancellor then ordered a partition of the property according tq the interests found, and appointed Commissioners with directions to determine whether the property is subject to division in kind or should be sold and the proceeds divided. He then reserved the other issues for determination pending the report of the Commissioners.
On their appeal to this court, the Parker heirs first contend that the chancellor committed five specific errors pertaining to the admission and exclusion of documentary evidence. They next contend the chancellor’s finding that Ida V. Williams West was a daughter and surviving heir of Louisa J. Williams was against the preponderance of the evidence. We agree with the appellants on this second contention, so we consider it unnecessary to discuss the admissions and exclusions of the evidence under the appellants’ first contention.
The oral testimony of all the parties and the witnesses pertaining to the relationship of Ida V. Williams West to Louisa J. Williams, was simply based on their understanding and belief favorable to their side of the issue and we consider it unnecessary to set out the testimony in detail. The Parker heirs and their witnesses testified that they had always considered, understood and believed Ida to be an unrelated foster child reared in the home of Louisa J. Williams as one of the family and that she was never an heir at law of Louisa J. Williams,, either by blood or adoption. Milton and the other Williams heirs and their witnesses testified that they had always considered, understood and believed that Ida was a child and heir of Louisa J. Williams; that she was a blood sister to Warren E. Williams and shared equally with him in the estate of Louisa J. Williams. Both sides introduced ancient letters and documentary evidence in support of their respective understandings and beliefs. The appellee Williams heirs offered numerous ancient family letters, census reports, funeral attendance records, autograph books, etc. in which Ida was addressed or referred to as daughter, sister or cousin. All of this evidence indicates that Ida was considered, loved and accepted as a member of the Williams family by all parties concerned, but it falls far short as proof of legal relationship by blood or adoption to Louisa J. Williams. The Parker heirs also offered considerable documentary evidence in support of their own contentions and tending to impeach the credibility of Milton’s testimony and that of his surviving sisters to the effect that they had always considered and believed Ida to be their blood aunt by birth as the daughter of Louisa J. Williams. The most cogent evidence as to Ida’s relationship, or lack of relationship, to Louisa J. Williams is contained in a letter written to Birdie Parker in Ida’s own handwriting on May 9, 1943. This letter was introduced into evidence without objection and its authenticity is not questioned. Its importance to our decision, however, justifies a few words of background for the context in which it was written.
It is clear from the record that in the mid 1930’s Warren E. Williams mortgaged the property here involved to Taylor 8c Company as security for a loan and the indebtedness had not been paid at the time of his death. The record indicates that Taylor 8c Company wrote several letters to Milton as well as to his sister, Birdie Parker, concerning the indebtedness. The letters brought no response from Milton but Mrs. Parker did respond and under veiled threats of foreclosure in 1943, she paid the balance due on the mortgage indebtedness. It is apparent from the record that Mrs. Parker was concerned about the possibility of losing the property through foreclosure but also questioned the wisdom of making payments for the benefit of all the heirs and she corresponded with Ida in connection with the matter. The letter from Ida to Mrs. Parker, above referred to, reads in part as follows:
“Well, honey, I just don’t know what to say or how to say it. Yes I think that you or someone will have to take hold of the problem, for things can’t wait always. Yes, Taylor 8c Company can foreclose or force a sale most any time. I think they have been mighty nice as it is. I sure hope things will work out o.k. You be sure you always get receipts for things you pay 8c keep them, or dates and copies of them, if U have to give others receipts. . . .
Be sure you keep in the law in it all. I think Christopher would be a good guide for U. Yes, I know that W.E. would say keep the old home at any cost. I say so too. I don’t know weather [sic] to say this or not. But if things get messed up too much U know, (it might be that I could come in for V2 of that. If the records show that I was adopted. It would■ be about 1877 or near that. I don’t want a thing. But if need be it might help.) C. don’t mention this to anyone.
Yes, I would pay the mortgage off, and hold it, and interest, till I got mine. I sure hope it don’t pass into other hands.
You know that is about' the best farm around there and a lot of the very best ground has been allowed to grow up in brush, along the road across the creek; it used to be in cultivation don’t look like it now. Watch it & don’t let anyone else get the mortgage. I hope I am not butting in . . . .” (Our emphasis in parenthesis added).
This letter from Ida contains the only direct evidence in the record as to the actual relatonship, or lack of it, between her and Louisa J. Williams.
Of course, if Ida had been born as one of the two children of Louisa J. Williams, she wuld have inherited an undivided one-half interest in the property without question, and it is reasonable to assume that the question of adoption for that purpose, would never have occurred to her. When this letter is considered in connection with the Taylor & Company demands for payment directed to Mrs. Parker over a seven year period from 1936 to 1943, it adds credence to the Parker heirs’ belief that Ida was a foster daughter of their great grandmother, Louisa J. Williams, and was not a sister by blood or adoption to their grandfather, Warren E. Williams.
Ida’s marrige license in evidence indicates it was issued in 1908 to G. B. West and Miss Ida Williams, then 31 years of age. But the death certificate dated July 1, 1953, recites that Mrs. Ida West died on June 30, 1953, at the age of 78 years, and recites that on information furnished by Mrs. Ñola Fetsch, the name of Mrs. West’s father was John Williams and the name of her mother was unknown.
In the light of the above letter from Mrs. Ida West, we are unable to overlook as careless errors some of the transactions between the parties. On March 23, 1959, Milton Nevil Williams and two of his sisters, executed a quitclaim deed to their sister Idell W. Bussey, containing the following recitation: “. . .[W]e, Milton Nevil Williams and Eloise Williams, his wife, Birdie W. Parker, and Mabel W. Seamans, Grantors, being all the heirs at law of one W. E. Williams, deceased, except for Warren Edgar Williams, an incompetent, and the Grantee .herein, ... do hereby grant, sell and quitclaim. . . .” (Emphasis added).
We note that in Milton’s verified petition for guardianship filed on April 18, 1958, he represented Warren’s interest in the land as an undivided one-fifth interest, whereas his petition to sell the interest filed on July 30, 1970, and the subsequent sale on Agust 11, 1970, represented that interest as an undivided one-tenth interest. We also note that in the meantime, on February 6, 1970, Milton had recorded a quitclaim deed executed in the state of Missouri on February 3, 1970, by “Nola West Fetsch sole heir of Ida Williams West” conveying to Milton all her right, title and interest in the lands here involved. Milton readily admitted that he paid Mrs. Fetsch nothing for her interest in the land, but he explains that she was simply interested in assisting him in caring for his incompetent brother, Warren.
This case was well tried by the chancellor as well as the attorneys involved, but we disagree with the chancellor as to where the preponderance of the evidence lies. As we view the chancery record in this case on trial de novo, we conclude that the chancellor’s finding that Ida Williams West was the daughter and heir at law of Louisa J. Williams is against the preponderance of the evidence and the chancellor’s decree must be reversed. It is clear that the chancellor left some issues to be determined following the report of the Commissioners he appointed as above set out, so the decree is reversed and this cause is remanded to the chancery court for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Harris, C.J., dissents.
Carleton Harris, Chief Justice, dissenting. I recognize that this is a close case, with some rather convincing items of evidence on both sides, but I certainly cannot say that the findings of the chancellor were clearly against the preponderance of the evidence. We have said on divers occasions that we will not reverse a chancellor unless his findings are clearly against the preponderance of the evidence. See Hampton v. Hampton, 245 Ark. 579, 433 S.W. 2d 149. The reasoning behind these holdings is that the chancellor, who sees the parties and their witnesses, and observes their demeanor while testifying, is in a better position to evaluate the credibility of their testimony.
The majority opinion seems to be mainly predicated on the purported letter written by Ida V. Williams West, but, to me, the letter does not carry the weight, significance, or importance, that is attached to it by the majority.
Let it be remembered that everything that an individual knows about his ancestry is acquired from hearsay evidence; he knows what he has been told; he cannot say of his own knowledge where he was bom or to whom he was born. Whatever Mrs. West thought about her ancestry had to come from other persons. To me, what an older brother or sister, or other close relative, says, is much more persuasive. Here, as will later be discussed, Warren E. Williams, Sr., admittedly a son of Louisa, clearly demonstrated that certainly it was his belief that Ida was his blood sister.
In this case, Mrs: Mabel Seamans, one of the children of Warren E. Williams, Sr., testified that she knew her aunt, Mrs. West, all of her life and that this aunt lived in the Williams home in the early days part of the time. She testified positively that Mrs. West was her father’s blood sister. She stated that she had heard her aunt request many times to be buried at the foot of her mother’s grave, meaning Louisa Williams — and Mrs. West is actually buried there. She also testified that she observed her father’s funeral record, which reflected the relatives attending the funeral and that Mrs. West was listed as a sister. This exhibit was offered in evidence and the entries on the funeral record were placed there by Eloise DeWeese, one of the appellants herein. Milton Nevil Williams testified that he always understood that Mrs. West was his father’s blood sister, and he never had any indication of any other relationship from his father, mother, or aunt. He said the first time that he ever heard anything to the contrary was “drifting words” around 1953 when his aunt died. He also testified that during the football seasons of 1933 and 1934, he lived with this aunt. These two witnesses testified from direct knowledge of the relationship of Ida West to their father, and as Warren Williams, Sr.’s own children, they, it would appear, had a much greater opportunity to know the facts than the grandchildren. Also, to me, the testimony of Mrs. Seamans and Williams was much more convincing for the testimony from appellants was far less positive. For instance, Eloise DeWeese testified that according to her understanding, Warren Edgar Williams was the only child of Louisa J. Williams. Likewise, yirginia P. Calaway, also a granddaughter of Warren E. Williams, Sr., testified that it was her understanding that Ida West was raised by John J. and Louisa Williams, but was not legally adopted. Walter Parker, brother of Mrs. DeWeese and Virginia P. Cala-way, testified that it was his impression that Ida Williams West is a foster daughter.
Certainly there was one person who lived during the lifetimes of these witnesses who should have known his relationship to Ida West and that was Warren Williams, whose every action indicated that she was his sister. On two occasions, Warren and Ida joined in trust deeds dealing with the lands in question; a 1932 deed of trust recited that Warren and wife and Ida V. Williams West were the sole heirs at law of Louisa J. Williams, deceased. Why would Warren E. Williams have his sister join in the execution of these conveyances unless she did in fact bear the relationship of daughter to Louisa Williams and was actually his blood sister? In addition, there were other exhibits which, in my view, clearly establish what Warren E. Williams thought about the matter. A letter was offered, dated December 13, 1908 from Williams to Ida V. Williams (West), wherein he addressed her as “Dear Sis”, and concluded his letter with the expression, “From your Bud, W. E. Williams.” Another exhibit was a “correspondence box”, which was given to Ida by Warren Williams as a Christmas present in 1891. In the bottom of the section containing the ink well, Warren E. Williams inscribed, “To Ida, from her Brother, Warren E. Williams, Christmas, 1891.”
The evidence contains a written communication from Louisa J. Williams to Ida in the form of an entry in an album addressed to “Dear Ida”, and closing with the words “and take what God sends is the wish of your mother, Louisa J. Williams.” There was also an authenticated copy of a Federal Census Report of 1880, that I deem to be admissible, which reflected that Ida was the daughter of John and Louisa Williams and I consider this admissible hearsay relative to the pedigree of the children of the Williams family, since this information had to be given to the census taker by some member of that family.
Without mentioning other items of evidence, suffice it to say that I cannot agree, as originally stated, that the findings of the chancellor were clearly against the preponderance of the evidence. Accordingly, I would affirm the decree.
Warren E. Williams was thirteen years older than Ida.
See Ark. Stat. Ann. §§ 28-931 and 28-932 (Repl, 1962).
Ida was five years of age at the time of the census. | [
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iSmith, J.
Appellee recovered a judgment to compensate an injury, which, according to his testimony at the trial from which this appeal comes, was sustained in the following manner: Appellant company had caused .ditches or trenches to be dug, in which a gas line pipe was to be laid. There was a large rook in the ditch, which appellee was ordered by his foreman to remove. Appellee called one J. W. Reynolds, a fellow-servant, to assist him, and the two began to lift the rock from the ground, and .just as they did so and while appellee was in a strained position, lifting all his strength would permit, Reynolds, without warning, released his hold, which unexpected action placed the entire weight of the rock on appellee in a strained position, and ruptured him.
Appellee’s testimony presented this question for the jury, and the law of the subject appears to have been correctly declared by the instructions which were given.
Appellant company introduced at the trial a statement signed by appellee, which purported to detail the circumstances of his injury, and it was therein stated as a fact that Reynolds did not release his hold on the rock, and Reynolds, testifying as a witness at the trial, stated that he did not do so. This was the pivotal question of fact in the case. Appellee admitted signing the statement, but testified that it did not read, when he signed it, as it read at the time it was offered in evidence at the trial.
Upon this question the court charged the jury as follows:
“An effort is made upon the part of the defendant to contradict the plaintiff in certain parts of his testimony, and with a view of doing that they have read in testimony here what they contend is a statement made and signed by the plaintiff soon after the injury occurred. The defendant contends that he made all of those statements that your attention was called to. He denies that.
‘ ‘ The court tells you that that statement, and all of that evidence connected with it, is admissible alone for the purpose of contradicting the plaintiff, 'Carden, if it does contradict him. It is not evidence for any other purpose, and you should consider it alone for that purpose.
“In making up your verdict and in weighing the evidence and deliberating upon the credibility of the witnesses, you take all of these things into consideration —whether- or not a witness has been contradicted, or whether or not he has been corroborated by other facts and circumstances—and that statement, together with all the testimony that has been introduced relating to it, is admitted to you to throw whatever light it may throw, if it throws any light upon what credence you are to give to the testimony of Mr. Carden—whether or not it will strengthen him. or weaken him, if it does either; and you are to consider it for no other purpose.”
This instruction was erroneous. It permitted the jury to consider the signed statement “for the purpose alone of contradicting plaintiff,” which it does, but its use should not have been limited to that purpose. It was a declaration against interest and was admissible as such. Booth v. St. L. S. W. Ry. Co., 170 Ark. 801, 281 S. W. 8. ; Davis v. Falls, 172 Ark. 314, 288 S. W. 723.
The signed statement purported to be a detailed narration of the circumstances of appellee’s injury, made by appellee himself, and was therefore admissible as substantive testimony, and not merely as impeaching’ testimony.
For instance, suppose Reynolds ’ testimony had been favorable, and not unfavorable as it was, and appellee had decided to rest his case upon the favorable testimony of Reynolds. Would the fact that appellee had not testified, and could not therefore be contradicted or impeached as a witness, render his signed statement inadmissible? Under the circumstances stated, it would" have been inadmissible if it could be considered only for the purpose of contradiction, because appellee had not testified. Its competency, of course, did not depend upon the fact that appellee testified. It would have been, and was, admissible, whether appellee testified or not, and its use should not therefore have been limited to that of .contradicting appellee, if this was its effect. It was admissible as a declaration against interest, and the jury should not have been denied the right to consider it as such.
The probative value of the statement was, of course, a question for the jury. Appellee’s testimony as to the circumstances under which it was signed was such, if • believed, as to discredit the statement altogether and cause it to be disregarded by the jury; but this, too, was a jury question. The jury might have found, if permitted to do so, that appellee was, in fact, injured in the manner detailed in the signed statement; in other words, that the signed statement spoke the truth, and then, if so, that there was no' negligence on the part of Reynolds, and consequently no liability against the appellant.
In the. case of Booth v. St. L. S. W. Ry. Co., supra, it was held (to quote a head-note): “Where a witness for defendant testified that plaintiff made a certain statement in the nature of an admission, which witness- immediately reduced to writing, the statement was admis sible, though the plaintiff at the time refused to sign it, and at the trial denied having made it. ’ ’
At § 3 oif.the chapter on Admissions and Declarations, 1 It. C. L. page 468, it was said: “A statement, to be admissible within the rule pertaining to admissions and declarations, must be against the proprietary or pecuniary interest of the person mailing it, as when so made there is a reasonable guaranty for its truth, forasmuch as people ordinarily do not assert facts that are injurious to them. From this want of motive to falsify, th'en, and from necessity, there being no better evidence available, disserving declarations are admitted. The declarations when received in evidence are said to be admitted as facts in themselves, from which presumptions may arise for or against the facts in question.” The annotated oases cited in the note to the text quoted collect many cases which support the text.
For the error in giving the instruction set out above the judgment must be reversed, and the cause will be remanded for a new trial. | [
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Hart, C. J.,
(after stating the facts). The judgment of the circuit court was wrong. Where there has been a breach of agreement on the part of the landlord to make repairs, if the repairs are extensive and the cost excessive in comparison with the rent, the measure of the ten ant’s damages is the diminution of the rental value of the property by reason of such nonrepair; but where the repairs are inexpensive as compared with the rent, the measure of the tenant’s damages is the cost of making such repairs. Young v. Berman, 96 Ark. 78, 131 S. W. 62, 34 L. R. A. (N. S.) 977 ; and Frank v. Rogers, 156 Ark. 120, 245 S. W. 311.
According to the testimony of the plaintiffs, the cost of the repairs was small, and the plaintiffs repaired the roof whenever they were asked to do so by the defendant. The defendant did not claim that there was any serious damage to his goods on account of the defective roof. The defendant admitted the rental contract and that he had agreed to pay $125 per month as rent. He denied, however, that he made no complaint to the plaintiffs about the leaky condition of the roof. On the other hand, he testified that he made numerous complaints about the leaky condition of the roof. He stated that he kept the rent paid up until the first of January, 1928. According to his own testimony, he then made complaints about the leaky condition of the roof, and the plaintiffs told him if he was not satisfied to move out. He replied that he would do so, and stated that he did do so on the 22d day of February, which was as soon as he could obtain a suitable store building for his business. Under these circumstances, he was not entitled to any damages for the difference between the rental value of the premises in the condition resulting from the failure to repair the roof, and what their rental value would have been if the plaintiffs had repaired the roof properly. The defendant could not notify the plaintiffs that he was going to move on account of the failure of the latter to repair the roof and then continue to occupy the premises at a reduced rental. Therefore, in the application of the principles of law above announced, under his own testimony, the court erred in submitting to the jury' the question of his right to recover damages on account of the diminished value of the premises by reason of the defective condition of the roof.
The instructions upon which the case was submitted to the jury are not included in appellant’s abstract and brief; and, under our settled rules of practice, it will be considered that the jury found the amount of rent due the plaintiffs under proper instructions from the court. In the application of this familiar rule of practice, the court must also indulge the presumption that the right of the defendant to recover special damages to his goods on account of the failure of the plaintiffs to repair the leaky roof was submitted to the jury under proper instructions. This court has always held that upon appeal it will 'be considered that the instructions given by the court are correct unless the instructions are set out in the abstract and brief of appellant and proper exceptions saved to the giving of them. Morris v. Raymond, 132 Ark. 450, 201 S. W. 116 ; Brown Bros. & Carnahan v. Smiley, 158 Ark. 640, 244 S. W. 351 ; Bish v. Woods, 162 Ark. 463, 258 S. W. 352 ; and National Life & Accident Ins. Co. v. Robinson, 181 Ark. 1, 24 S. W. (2d) 878.
It will be noted that the jury made a specific finding of the amount of rent due the plaintiffs and of the measure of damages due the defendant on account of the diminished rental value of the premises, which we have held that the defendant was not entitled to recover under his own testimony. This error may be corrected without a reversal of the judgment. The error may be eliminated by rendering judgment here for the amount found to be due in favor of the plaintiffs for rent less the amount of special damages suffered by the defendant by reason of the rain which descended upon his goods and damaged them. The amount of the rent due the plaintiffs, as found by the jury, was $218.76, and the amount of special damages for the goods damaged due the defendant was $151.75. This leaves a balance in favor of the plaintiffs of $67.01, for which sum judgment will be entered here in favor of the plaintiffs, with interest at the rate of six per cent, per annum from February 1, 1928, which was the date when the last installment of rent was due. The cost of the appeal will he adjudged against the defendant. It is so ordered. | [
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John I. Purtle, Justice.
This is an appeal from a conviction by the Madison County Circuit Court wherein the appellant was convicted of burglary and theft of property as well as being an habitual offender.
We are presented with only one argument on appeal. Appellant contends that the court failed to apply the provisions of Ark. Stat. Ann. § 41-605 (Repl. 1977), relating to psychiatric examination of a defendant, to the facts of the present case. We feel that the court substantially complied with the provisions of this statute and therefore will not reverse the decision of the trial court.
The facts of the case are not in dispute and will therefore not be set out in this opinion. The single issue is the fitness of the appellant to stand trial. Ark. Stat. Ann. § 41-605 provides that when there is reason to doubt the fitness of the accused to proceed, the court shall enter an order directing that the accused be examined by a local psychiatrist or committed to the state hospital. Upon completion of such examination a report shall be submitted. The report is to follow Ark. Stat. Ann. § 41-605 (4) which states:
The report of the examination shall include the following:
(a) a description of the nature of the examination;
(b) a diagnosis of the mental condition of the defendant;
(c) an opinion as to his capacity to understand the proceedings against him and to assist effectively in his own defense; '
(d) an opinion as to the extent,, if any, to which the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired at the time of the conduct alleged; and
(e) when directed by the court, an opinion as to the capacity of the defendant to have the culpable mental state that is required to establish an element of the offense charged.
The court ordered the appellant to be examined by Dr. Travis W. Jenkins of the Ozark Guidance Center. A report in the form of a two paragraph letter was sent to the trial judge. The letter states:
I have seen Mr. Ball in psychiatric evaluation and mental status examination. In my opinion he is competent to stand trial. There is no evidence to suggest that he is psychotic at the time of my interview with him. Mr. Ball does have a past history of alcoholism and being out of touch with reality when drinking. Therefore, at the time of his alleged offense, he may have been under the influence of alcohol and had disorder of thinking at that time, but in my opinion he was not psychotic to the degree of criminal irresponsibility.
Alcoholism is a definite complicating factor in this situation, and an alcohol treatment program might be of value. If further information is needed, please feel free to contact me.
The appellant objected to this report as being insufficient and not in compliance with the provisions of the statute. The trial court apparently agreed and wrote the doctor a letter asking him to furnish a supplemental report along the lines of the requirements of the statute. The appellant was not further examined by Dr. Jenkins but a supplemental report was submitted. The supplemental report stated: “. . . Mr. Bell is able to understand the proceedings against him, and it is also my opinion that he is able to assist in his own defense.” The letter further stated, as had the first one, that appellant was not psychotic to the degree of criminal irresponsibility. The final diagnosis was (1) alcohol abuse and (2) chronic schizophrenic disorder.
The appellant also attacked this supplemental report as being less than what is required by the statute in question. The trial court overruled the objection and conducted the trial. Dr. Jenkins appeared at the trial and testified that in his opinion the appellant suffered from mental disease which he described as “chronic schizophrenia with paranoia features.” The doctor’s opinion at the trial was to the effect that Ball did have a mental disease as above stated. In reaching a decision on the issue presented on appeal, however, we do not consider testimony presented at the trial.
The first requirement of the report by a psychiatrist is that it give a description of the nature of the examination. Dr. Jenkins stated that he saw the appellant in “psychiatric evaluation and mental status examination.” We think this substantially complies with the requirement that the psychiatrist include in his report the nature of the examination. The second requirement is that there be a diagnosis of the mental condition of the defendant. The report clearly stated that the doctor considered appellant competent to stand trial and did not find him psychotic at the time of the examination. The report further reflects that in the doctor’s opinion appellant was not psychotic to the degree of criminal irresponsibility. The doctor found appellant to be suffering from alcohol abuse and paranoid schizophrenia. The third requirement is that the report contain an opinion as to appellant’s capacity to understand the proceedings against him and to assist effectively in his own defense. Dr. Jenkins’ letter specifically included findings that he was competent to do both. The fourth requirement is that the report contain an opinion as to the extent, if any, to which the capability of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired at the time of the conduct alleged. The excerpts of Dr. Jenkins’ opinion previously set out clearly reveal that the examining psychiatrist felt appellant was able to conform his conduct to the requirements of law and that he was able to appreciate the criminality of his conduct. The report is not in the exact terms which are set out by the statute but the requirements are substantially complied with by the report. Finally, the report, when directed by the court, shall contain an opinion as to the capacity of the defendant to have the culpable mental state that is required to establish an element of the offense charged. The reports state that appellant was not psychotic to the degree of criminal irresponsibility. The first report stated that at the time of the offense the appellant may have been under the influence of alcohol and had some disorder of thinking. It was the opinion of Dr. Jenkins that he was “not psychotic to the degree of criminal irresponsibility.”
It is clearly the intent of the statute in question to prevent the trial of any person while incompetent to understand the nature of the procedures involved and to assist in the defense thereof. The statute is also designed to prevent the trial of a person who lacks the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law at the time of the offense. The United States Supreme Court has adopted these basic requirements. Drope v. Missouri, 420 U.S. 162 (1975). It is true that this court reversed a conviction when the trial court failed to make the determination required by this statute. Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979). In Gruzen, the trial court refused to rule on the issue. In the present case the court did rule on the question and the result was the appellant was required to stand trial. The ruling of the trial court did not prevent the appellant from attempting to establish his incompetency at the time of the trial or at the time of the alleged commission of the offense. This was attempted in the cross-examination of Dr. Jenkins. The burden in this case is upon the party claiming the defense. Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979). We think that taken together the two reports by the psychiatrist substantially complied with the law, and the trial court was not in error in requiring appellant to proceed to trial.
Affirmed. | [
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Hart, C. J.
This is an appeal from an order of the circuit court of Ouachita County sustaining a demurrer of the administratrix of the estate of Roy S. Shell, deceased, to a petition of Martha Adams, guardian of Willie May Shell and Marcell Shell, minor children and heirs-at-law of Roy S. Shell, deceased, to require said administratrix to distribute to them $4,666.66, out of a judgment recovered iby her for their benefit in the sum of $7,000.
On the 15th day of April, 1929, Martha Adams, as guardian of Willie May Shell and Marcell Shell, minor children and heirs-at-law of Roy S. Shell, deceased, filed a petition in the probate court of Ouachita County to compel Mrs. Eritha E. Shell, as administratrix of the estate of Roy S. Shell, deceased, to distribute to them $4,666.66 out of a judgment recovered by her for $7,000. On the 7th day of September, 1928, Mrs. Eritha E. Shell was appointed by the probate court of Ouachita County as administratrix of the estate of Roy S. Shell, who died in Camden, Arkansas, on or about the 21st day of August, 1928. On December 18, 1928, Mrs. Eritha E. Shell, administratrix of the estate of Roy S. Shell, deceased, recovered in the Pulaski Circuit Court against the International Paper Company a judgment for $7,000, on account of the wrongful death of said Roy S. Shell. The judgment recites that Roy S. Shell received a personal injury on the 29th day of August, 1928, while in the employ of the defendant, and that he died on the 31st day of August, 1928. By agreement between the parties to the suit, the court assessed damages to the administratrix in the sum of $7,000 for the wrongful death of her decedent. It was adjudged by the court that Eritha E. Shell, as administratrix of the estate of Roy S. Shell, deceased, for the nse and benefit of said estate and for the nse and benefit of Eritha E. .Shell and Willie May Shell and Mar-cell Shell, have and recover from the International Paper Company the sum of $7,000; and, it appearing that said sum has been paid in satisfaction of the judgment, the judgment is ordered and decreed by the court to be satisfied in full.
In her petition in the Ouachita Probate Court, appellant herein stated that Martha Adams, as guardian of said minors, is entitled to be paid out of said judgment the net sum of $4,666.66, to be divided equally between said minors. Prom an adverse judgment against her in the probate court, an appeal was taken by the guardian of said minors to the circuit court where a demurrer was sustained to the petition of said guardian for said order of distribution; and the cause was dismissed for want of jurisdiction.
Under § 1075 of the Digest, the personal representative of a deceased person may bring an action for the wrongful death of said decedent, and the amount recovered shall be for the exclusive benefit of the widow and next of Idn of such deceased person and shall be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate. Thus, it will he seen that it is the duty of the administrator to bring the suit as provided by the statute, and, in the event of a recovery, to distribute the amount recovered according to the provisions of the statute which covers the distribution of personal property. The damages are recovered in the name of the personal representative of the deceased, but do not become assets of the estate. The relation of the administrator to the fund when recovered is not that of the representative of the deceased, but of a trustee for the benefit of the widow and next of kin; and the suit is wholly for their benefit. The administrator is a formal party to the maintenance of the action, and becomes a mere trustee for those entitled under the stat iite to the amount recovered. Little Rock & Ft. Smith Ry. v. Townsend, 41 Ark. 382 ; Davis v. Railway, 53 Ark. 117, 13 S. W. 801 ; and Johnson v. Mo. Pac. Rd. Co., 144 Ark. 469, 224 S. W. 427.
Under the principles of law decided in these cases and in Dennick v. Railroad Company, 103 U. S. 11, cited in the Townsend case, when the money was recovered by the administrator for the widow and next of kin and came into the hands of the administrator, the circuit court in which the fund was recovered could compel distribution as the law directs. The reason is that the court had control over its own judgment; and, the fund recovered for the benefit of the widow and next of kin not becoming assets of the estate, there would be.no interference with the original, exclusive jurisdiction in matters relative to the estates of deceased persons conferred upon the probate court by § 31, art. 7, of our Constitution.
The record shows that there was also a recovery by the administratrix for the benefit of the estate, and the amount of such recovery went to the legal representative of the estate as part of its assets. Davis v. Railway, 53 Ark. 117, 13 S. W. 801, and Carpenter v. Hazel, 128 Ark. 416, 194 S. W. 225. This court has held in an unbroken line of oases that where a sum is recovered for the benefit of the estate, and there is still the necessity for continued proceedings in the courts of administration,, the judgment should be certified to the probate court to be administered by it in due course. It is only where there is no necessity for a further course of administration, and assets are collected in, and nothing-remains to be done except to distribute them, that the judgment should not be certified to the probate court for administration in due course. Reinhardt v. Gartrell, 33 Ark. 727 ; and Union Trust Co. v. Rossi, 180 Ark. 552, 22 S. W. (2d) 370.
The record in this case does not contain any affirmative showing that the amount recovered is not necessary to be used by the administratrix in due course of administration for the payment of the debts of the estate. The record is silent as to whether or not any debts have been probated against the estate, bnt it does appear from the record that the period of time for the probation of claims against the estate has not yet expired. The administratrix was appointed by the probate court of Ouachita County on the 7th day of September, 1928. The judgment in the circuit court was recovered by the administratrix on December 18,1928. The petition of the guardian was filed in the Ouachita Probate Court on the 15th day of April, 1929. Thus, it will be seen that the period of one year has not expired since the appointment of the administratrix; and, under § 97 of the Digest, claims may be filed at any time before the end of one year from the granting of letters of administration.
.This is not a case like Union Mercantile Trust Co. v. Hudson, 147 Ark. 7, 227 S. W. 1, and Gordon v. Clark, 149 Ark. 173, 232 S. W. 19, where the title to the property of the decedent was involved, and the court held that the probate court had no jurisdiction of such contested claims. Here, the amount recovered by the administratrix for the benefit of the estate, under our former decisions cited above, went to the administratrix to be administered by her in the probate court in due course of administration.
The only trouble about the case is that the judgment in the circuit court should have definitely stated the amount that was recovered for the benefit of the widow and next of kin and that which was recovered for the benefit of the estate. The fact that a mistake was made in this respect would not give the probate court jurisdiction over the part of the judgment which was recovered by the administratrix for the benefit of the widow and next of kin and held by her as a trust fund for them. They could not be deprived of their rights in that fund because the administratrix had neglected or failed to obtain judgment for a stipulated amount for their benefit. They might apply to the circuit court in which the judgment was recovered for a distribution of their part of the judgment to them as pointed out above; and if the ad ministratrix had converted the money to her own nse, they might sue her directly for it and recover judgment as for a trust fund. On the other hand, in the absence of a showing that the part of the judgment recovered by the administratrix for the benefit of the estate was not needed for the payment of debts, the probate court had .jurisdiction to require the administratrix to account to it for the amount so recovered and could take proof and ascertain the amount so recovered, and the burden of proof would be upon the administratrix in this respect.
■ The result of our views is that the circuit court erred in sustaining ,a demurrer to the petition of the guardian; and for that error the judgment will be reversed and the cause remanded for further proceedings according to law and not inconsistent with this opinion. | [
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John I. Purtle, Justice.
This action commenced when TXO Production Corporation, one of the appellants, filed a complaint in interpleader and petitioned for a declaratory judgment. TXO paid into the registry of the court the sum of $227,000, and asked that the chancellor determine the owner of these proceeds and to whom future payments should be made. Appellants Leotta Crotts Andrews and Edna Crotts Gray, and appellants Burl Harris and TXO, have conflicting claims and seek different results. The interests of the appellees are not in conflict. We are unable to follow all of the arguments presented by the various parties in a chronological manner. The case will be discussed in sufficient detail to explain why we reverse and remand as argued by the appellants Burl Harris and TXO Production Corporation.
This dispute concerns 40 acres of land and mineral rights in Pope County, Arkansas, described as the Southeast Quarter (SE 1/4) of the Southeast Quarter (SE 1 /4) of Section 5, Township 9 North, Range 21 West. There is no dispute that on January 1, 1903, S.G. Harris and his wife, Mattie Harris, owned all of the interests in this tract of land and on that date executed a warranty deed to O.G. Harris, reserving the mineral rights. On October 27, 1909, O.G. Harris and wife executed a deed, with reservation of mineral rights, to P.L. Browning. Browning, on November 11, 1915, conveyed the property to B. F. Crotts without reserving any interest in the property. On June 14, 1929, John A. Crotts and Emma Crotts, his wife, executed a mineral deed to William Vance. On the face of that deed the following appeared:
June 25, 1929. Know all men by these presents; That we S.G. Harris and Mattie Harris his wife do relinquish all of our rights and interests to Jno. A. Crotts in the SE 1/4 Southeast 1/4 of SE 1/4 Southeast 1/4 of Section 5, Township 9 North Range 21 West, containing 40 acres, more or less all in Pope County, Arkansas.
S.G. Harris
Mattie Harris
(Seal) My Com. ex. May 29, 1933.
C.E. Pittenger
Notary Public
The title of all parties except appellants Harris and TXO is dependent upon the above writing contained on the face of the 1929 deed. On the other hand, the interests of Harris and TXO are derived from the title of S.G. Harris.
The case is controlled by our interpretation, of the above quoted “deed within a deed.” There is no doubt that had the instrument last referred to been offered for recordation as a separate instrument, it would not have qualified because there is no acknowledgment or jurat. The original was never offered in evidence at the trial nor was it established that it had been destroyed. The trial court held that the instrument grafted upon the face of the deed dated June 14,1929, constituted a quit claim deed and that although it had no jurat or acknowledgment that these defects were cured by Act 101 of 1955, which is codified at Ark. Code Ann. § 16-47-108 (1987). Clearly the instrument purportedly signed by S.G. and Mattie Harris does not contain the elements of a proper acknowledgment as required by Ark. Code Ann. § 16-47-106 (1987).
The curative statute, Ark. Code Ann. § 16-4.7-108, states that instruments which have been recorded and purport to convey an interest affecting the title to real estate or personal property located in this state, although defective, are cured of such defects. The chancellor held in this case that the statute had cured the defects in the “deed within a deed” and that S.G. and Mattie Harris had conveyed the mineral interest to the Crotts. The writing of June 25, 1929, was not separately recorded. This alleged conveyance was contained in the space on the June 14, 1929, deed just below the description of the property. There is no independent proof that the Harrises ever executed this “deed” except as appears above.
This court held in McGehee v. McKenzie, 43 Ark. 156 (1884), that a curative statute did not interfere with rights which had already vested. This court has also held that a curative act does not validate a certificate of acknowledgment which the notary fails to sign, even if he has affixed his seal thereto. Davis v. Hale, 114 Ark. 426, 170 S.W. 99 (1914). The curative statute was again considered by this court in the case of Pardo v. Creamer, 228 Ark. 746, 310 S.W.2d 218 (1958), where we restated the rule that curative acts do not affect title which has vested before the effective date of the act. In Pardo we held that the curative statute cannot “supply an acknowledgment when in fact there is none.”
The so called “deed within a deed” was not a proper instrument for recordation. The fact that it appeared within an instrument which was duly recorded does not cure the defect of the lack of acknowledgment. Additionally, title to the mineral interests in question here had already vested in the Harris line of ownership. Although it may have been proper for the chancellor to have received this instrument into evidence, it was clearly error for him to decree that the defective “quit-claim deed” was cured by Ark. Code Ann. § 16-47-108.
Since we hold that the June 25,1929, writing by S.G. Harris and Mattie Harris on the face of the June 14,1929, mineral deed did not vest title to the mineral interest in John Crotts, it becomes unnecessary to discuss the claim between the Crotts heirs. The case is remanded to the trial court for the purpose of doing all things necessary to vest title in Burl Harris and TXO Productions, Inc.
Reversed and remanded.
Hays, J., dissents.
Glaze, J., concurs. | [
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Steele Hays, Justice.
This is the appeal from a verdict in favor of the defendants in a suit for the tort of outrage. The appellants are four daughters of Mrs. Mamie Ashlock, deceased. Appellees are the Southern Nursing Home, its owner, administrator, director of nursing and dietary manager.
The lawsuit giving rise to this appeal was brought by daughters of Mamie Ashlock and by her estate. Mrs. Ashlock was a patient at the defendant nursing home when she died. She was admitted to the nursing home on December 3,1987, and died on April 6, 1988. Because she was a diabetic, Mrs. Ashlock was limited in her intake of sugar.
Appellants originally brought an action against appellees for, a) wrongful death based on the fact that sugar packets were found by the daughters in pockets of Mrs. Ashlock’s wheelchair, b) negligence in the treatment of Mrs. Ashlock while she was a patient at the nursing home, c) breach of the contract providing for the care, and d) for the tort of outrage. The named defendants were Stafford Kees, the owner of the nursing home, Barbara Crowder, the head nurse, Sandra Enlow, the dietician, Janice Roark, the nursing home administrator, and the nursing home itself. The trial court granted a motion to dismiss for lack of venue for all causes of action except the tort of outrage and the case proceeded to trial on the remaining cause of action.
The basis of the claim of outrage was that when Sandra Enlow and Barbara Crowder had visited the funeral home, Ms. Enlow placed a sugar packet in Mrs. Ashlock’s casket. Ms. Enlow claimed she did this out of affection for Mrs. Ashlock because Mrs. Ashlock always wanted real sugar instead of the “Sweet’n Low” she was allowed to have. Enlow explained that she and Mrs. Ashlock had a continuing dialogue regarding real sugar versus the “pink stuff-.” Appellants claimed this act was malicious and caused them severe distress. A jury found in favor of the defendants. Appellants have appealed from the judgment entered on the verdict, challenging three evidentiary rulings by the trial judge. Finding no error, we affirm the judgment.
A motion in limine was filed by appellees regarding evidence appellants intended to introduce concerning alleged wrongful acts by the nursing home staff against parties. The trial judge preliminarily ruled that any alleged mistreatment of patients other than Mrs. Ashlock or occurring prior to her admittance into the home would not be admissible. Only conduct toward Mrs. Ashlock and her family would be allowed, but appellants could proffer any evidence they wished to introduce at trial and he would make a final ruling at that time.
Appellees had alleged Sandra Enlow placed the sugar packet in the coffin out of affection, and appellants were allowed to introduce evidence of treatment of Mrs. Ashlock to rebut this motive. Appellants claim on appeal that tendered exhibits one through six should also have been allowed under A.R.E. Rule 404(B). Rule 404(B) provides:
Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that they acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Appellants’ exhibits have a common failing. These documents concern patients other than Mrs. Ashlock and were written during a time when she was not a patient. They are simply not relevant to any type of motive on the part of the staff regarding Mrs. Ashlock or her family. Evidence allowed under Rule 404(B) must be relevant and its probative value must outweigh the danger of unfair prejudice. These exhibits, 1, 3, 4, 5, and 6, lack relevance and would only serve to inflame the jury.
Only one exhibit, number 2, was written during Mrs. Ashlock’s stay at the home. It is a letter, dated February 4,1988, from Mr. Kees (the owner) to Dr. Don Howard (the medical director) informing him that another doctor had been selected for many of the patients. The letter was admitted into evidence except for one line stating that “I am not going to allow the nursing home to be found out of compliance,” which was deleted. Arguably, the entire letter lacks relevance, but certainly the deletion of the quoted excerpt cannot be seriously challenged. As appellees point out, the nursing home was found to be in noncompliance in March of 1987, almost a year before Mrs. Ashlock was admitted as a patient. The overall problem with these exhibits is that they were remote in time, did not concern Mrs. Ashlock or the appellants and were clearly prejudicial. It appears the appellants were attempting to introduce evidence of the nursing home’s mistreatment and dereliction in the care of its patients in order to generally discredit the appellees. It was not an abuse of the trial court’s discretion to disallow the proffered evidence. At issue were Sandra Enlow’s attitude and actions toward Mrs. Ashlock and her family. None of the exhibits contained any allegations regarding Sandra Enlow’s actions in general, nor toward Mrs. Ashlock in particular. The exhibits were not relevant to the issues in the claim for tort of outrage and would have only served to mislead and prejudice the jury.
Second, appellants contend that Dr. Don Howard should have been allowed to testify about the abuse and mistreatment of patients before December 3, 1987, when Mrs. Ashlock entered the nursing home. Dr. Howard was allowed to testify that while Mrs. Ashlock was a patient he encountered not only problems with staff members but that orders were not being carried out. He stated that many patients were not receiving quality care and that the nursing staff was rude, abrasive and vulgar to patients. He testified that he couldn’t say anything about Sandra Enlow because his contact with her was minimal, but that Barbara Crowder was cruel, cold, calculating, callused, nonprofessional, and used obscenities in referring to patients. When Dr. Howard spoke of problems existing prior to December 3, 1987, the court instructed him to confine his comments to the time frame of December 3, 1987, forward.
Appellants now argue that such a limitation on Dr. Howard’s testimony prevented the jury from seeing the true character of the appellees. They contend the testimony was admissible to rebut the appellees’ claim that they acted out of affection rather than spite. See Brown v. Conway, 300 Ark. 567, 781 S.W.2d 12 (1989). We disagree for two reasons: Appellants failed to make a proffer of what Dr. Howard’s testimony would have been as required under A.R.E. Rule 103(a)(2) and we have stated that failure to make an offer of proof precludes review of the issue on appeal. Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991); National Bank of Commerce v. HCA Health Services of Midwest, Inc., 304 Ark. 55, 800 S.W.2d 694 (1990). Moreover, it is within the discretion of the trial court to limit the testimony of witnesses and that decision will not be reversed absent a manifest abuse of that discretion. Bennett v. State, 297 Ark. 115, 759 S. W.2d 799 (1988). We cannot say appellants have demonstrated an abuse of discretion.
Finally, appellants maintain the proffered exhibits and testimony concerning nursing home conditions prior to December 3, 1987, were admissible to show that appellees Kees and Roark failed to exercise supervisory care over their employees, even after they knew of prior outrageous acts. They claim that Kees and Roark knew they were entrusting the health, care and safety of Mrs. Ashlock and the other residents to employees who had a history of abuse and maltreatment of others.
The appellants rely on American Automobile Auction, Inc. v. Titsworth, 292 Ark. 452, 730 S.W.2d 499 (1987), in which American Automobile Auction hired two individuals, one as sales director and repossessor of vehicles, and the other as auction ringman and bouncer. The president of the company did not want appellee McPeek to attend an auction and watched as he entered. His employees proceeded to forcibly eject McPeek. Appellee Titsworth attempted to protect McPeek. The employees assaulted McPeek in the auction area. Titsworth then got McPeek away from the area and led him across the street. The employees got a shovel and a bumper jack, went across the street to Titsworth’s truck, and severely beat both appellees. McPeek and Titsworth sued the employer under a negligent supervision theory. The court upheld a verdict for the two men, stating that an employer who hires two individuals, one of whom is normally drinking, and entrusts to them the job of forcibly ejecting patrons, has a duty to exercise reasonable care to avoid harm to others when the employer knows, or by the exercise of reasonable diligence ought to know, that such employees are forcibly ejecting a patron.
Appellees cite the Titsworth case for the premise that they should have been allowed to introduce evidence that appellees knew of prior outrageous acts by Crowder and Enlow and failed to supervise them. The trial court was correct in not allowing the evidence to be admitted because the negligent supervision theory has no application to the instant case. As we have seen, there was no connection between the nursing home problems and the act of putting sugar in the casket. Even if it was the acts of Crowder and Enlow which resulted in the nursing home not meeting the necessary standards and Kees and Roark knew of these acts, there is nothing to suggest they knew or should have known that their employees would go to a funeral home and put sugar in a casket. Therefore, the trial court did not err in not allowing the conduct of Crowder and Enlow to be imputed to Kees and Roark.
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David Newbern, Justice.
This tax case involves a dispute between the appellant, Omega Tube and Conduit Corporation (Omega), and the Pulaski County Assessor and Collector, appellees (the County). The question is whether raw materials used to produce products to be shipped outside this State attain a “situs” here and thus are subject to personal property taxation. The Trial Court held that the controlling Statute, Ark. Code Ann. § 26-26-1102 (1987), is unambiguous and requires the tax to be levied. In response to Omega’s request for a declaratory judgment as to the meaning of the Statute, we hold it is ambiguous and that the General Assembly did not intend to tax the raw materials in question; however, in response to Omega’s request for refund, Omega may not recover taxes it has paid voluntarily. The Trial Court’s decision is thus reversed and remanded.
Omega paid personal property taxes for 1986, 1987, and 1988 on raw materials imported for use in manufacturing goods to be shipped out of Arkansas. In 1989 Omega sought a refund from the Pulaski County Board of Equalization for $94,583.01, the taxes paid in those prior years. The Board denied the refund. Omega ultimately appealed unsuccessfully to the Circuit Court, seeking not only the refund but a declaration of the meaning of the Statute for its benefit and the benefit of other taxpayers similarly situated.
Omega contends the Trial Court erred by (1) holding § 26-26-1102 clear and unambiguous, (2) not considering all the subsections of the Statute, (3) holding contrary to public policy, and (4) concluding that Pulaski County is not estopped to apply § 26-26-1102 in this manner due to assurances given Omega when it located in Arkansas that the raw materials would not be taxed. As we reverse on the first point, we need not address the others.
In 1985, Omega Tube & Conduit built a manufacturing plant in Pulaski County. Omega receives steel coils from outside Arkansas from which it manufactures steel tubing, conduit, fence posts, automobile parts, and related goods. Over 90% of the finished products are then shipped outside the State. Dave Harrington, Director of the Arkansas Industrial Development Commission (AIDC), told Omega officials that Arkansas had a “freeport” statute, which exempts raw materials used in the production of finished goods sold outside Arkansas from ad valorem personal property taxes. Omega officials testified that assurance was a major consideration in its decision to locate in Arkansas.
Pulaski County assessed Omega’s raw material inventory as personal property and collected ad valorem personal property taxes on the raw material for 1986, 1987, and 1988. In 1989, Omega’s Controller questioned the levy.
1. The statute
Omega questions the Trial Court’s holding that § 26-26-1102 is not ambiguous. The Statute, enacted as Act 269 of 1969, is commonly referred to as the “freeport” or “no situs” law. It provides:
Place of assessment.
(a) All real estate and tangible personal property shall be assessed for taxation in the taxing district in which the property is located and kept for use.
(b)(1)(A) Tangible personal property in transit for a destination within this state shall be assessed only in the taxing district of its destination.
(B) Tangible personal property in transit through this state and tangible personal property manufactured, processed, or refined in this state and stored for shipment outside the state shall, for purposes of ad valorem taxation, acquire no situs in this state and shall not be assessed for taxation in this state.
(C) The owner of tangible personal property in transit through this state and of tangible personal property in transit for a destination within this state may be required, by the appropriate assessor, to submit documentary proof of the in-transit character and the destination of the property.
(2) “Tangible personal property in transit through this state” means, for the purpose of this section, tangible personal property:
(A) Which is moving in interstate commerce through or over the territory of this state; or
(B) Which is consigned to or stored in or on a warehouse, dock, or wharf, public or private, within this state for storage in transit to a destination outside this state, whether the destination is specified when transportation begins or afterward, except where the con signment or storage is for purposes other than those incidental to transportation of the property; or
(C) Which is manufactured, processed, or refined within this state and which is in transit and consigned to, or stored in or on, a warehouse, dock, or wharf, public or private, within this state for shipment to a destination outside this state.
The subsection at the center of this dispute is (b)(1)(B). Omega reads the subsection to mean that tangible personal property manufactured, processed, or refined in this State and stored for shipment outside Arkansas acquires no situs in Arkansas during the processing. The County and the Trial Court read the subsection to mean that only the final product being stored has no situs here but raw materials awaiting manufacture acquire an Arkansas situs.
2. Ambiguity
When the language of a statute is plain and unambiguous, we give the language its plain and ordinary meaning. City of Fort Smith v. Tate, 311 Ark. 405, 844 S.W.2d 356 (1992); McGee v. Amorel Pub. Schools, 309 Ark. 59, 827 S.W.2d 137 (1992); Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983). If a statute is clear and unambiguous, the primary concern is with what the document says and not what its drafters may have intended. Mourot v. Arkansas Board of Dispensing Opticians, 285 Ark. 128, 685 S.W.2d 502 (1985).
When a statute is ambiguous, however, effect must be given to the legislative intent. McGee v. Amorel Pub. Schools, supra; Graham v. Forrest City Housing Auth., 304 Ark. 632, 803 S.W.2d 923 (1991). To determine the intent of the legislature we must look at the whole act. First State Bank v. Arkansas State Banking Bd., 305 Ark. 220, 806 S.W.2d 624 (1991); Cozad v. State, 303 Ark. 137, 792 S.W.2d 606 (1990). As far as practicable, we must give effect to every part, reconciling provisions to make them consistent, harmonious, and sensible. McGee v. Amorel Pub. Schools, supra; Shinn v. Heath, 259 Ark. 577, 535 S.W.2d 57 (1976).
Marvin Russell, the Director of the State Assessment Coordination Division (ACD) from 1976 to 1988, interpreted § 26-26-1102 as exempting raw material that is received, manufactured, and shipped out-of-state. Larry Crane, the current Director of ACD testified that he interprets the Statute to mean the exemption only applies to the finished product awaiting shipment out and not to raw materials in storage awaiting manufacturing.
Steve Sutterfield, ACD supervisor of personal property research and development, testified he had conducted research with respect to the application of § 26-26-1102. He stated “there was a determination that there was not a consistent application of this statute and the different assessors read it different ways.”
Two County Assessors testified as to their application of § 26-26-1102. Larry Fratesi, Jefferson County Assessor for 21 years testified he did not tax raw materials during the production phase when the finished product is destined for shipment out of Arkansas. He said a company in Jefferson County brings pipe in, galvanizes it, and then ships it outside the state. Fratesi testified that he does not tax the pipe brought in, during processing, or as a finished product. Jim Tompkins, Mississippi County Assessor, testified that during his 18 years as an assessor he did assess the raw materials and work in process; however, he did not tax the finished product to be shipped out of state. The Trial Court was thus presented with considerable evidence that the meaning of the Statute was not, at least to others charged with its interpretation, clear on its face. Thus it seems persons hired or elected to interpret and apply the Statute are not clear as to its meaning.
The Trial Court relied upon Eoff v. Kennefick-Hammond Co., 80 Ark. 138 (1906), to hold that tangible personal property in transit attains a situs here for taxation when its trip is broken and the property is located in Arkansas for purposes other than those incidental to transportation. The issue in the Eoff case was whether property brought into Arkansas by a nonresident and used here to prepare a roadbed acquired a situs here for tax purposes. It did not involve a statutory exemption but turned on whether the State had the legislative authority to impose a tax.
The Eoff case is but one of many in which we have dealt with the power of the State to tax in the face of the Commerce Clause. In the latest of those cases, Pledger v. Arkla, Inc., 309 Ark. 10, 827 S.W.2d 126 (1992), we discussed the Supreme Court’s test established in Complete Auto Transit v. Brady, 430 U.S. 274 (1977), which is much more detailed than the one we used in 1906.
If the issue here were whether Arkansas is constitutionally empowered to impose a tax on the raw materials, the later cases discussing the basic issue confronted in the Eoff decision might be significant, but that is not so. While one aspect of § 26-26-1102 asserts the State’s power to tax within the confines of the Constitution, the aspect with which we are concerned here is that which has to do with exemption. Are the steel coils “moving in interstate commerce through or over the territory of this State” and thus within the definition of “in transit” provided in subsection (2) (a) of the Statute? Certainly the steel must stop long enough to be manufactured into a finished product, but does that keep it from being considered as “moving in interstate commerce?”
In interpreting a statute and determining the legislative intent, this Court looks to the language, subject matter, object to be accomplished, purpose to be served, remedy provided, legislative history, and other appropriate matters. City of Fort Smith v. Tate, supra. We must give effect to the intent of the General Assembly.
3. Administrative interpretation
It is also a familiar rule of statutory construction that the manner in which a law has been interpreted by executive and administrative officers is to be given consideration and will not be disregarded unless it is clearly wrong. Morris v. Torch Club, Inc., 278 Ark. 285, 645 S.W.2d 938 (1983); Walnut Grove Sch. Dist. No. 6 v. County Bd. of Education, 204 Ark. 354, 162 S.W.2d 64 (1942). An administrative interpretation is to be regarded as highly persuasive. Bramley School Dist. No. 35 v. Right, 206 Ark. 87, 173 S.W.2d 125 (1943). In Walnut Grove Sch. Dist. No. 6 v. County Bd. of Education, supra, we quoted with approval from Crawford’s Digest:
As a general rule executive and administrative officers will be called upon to interpret certain statutes long before the courts may have an occasion to construe them. Inasmuch as the interpretation of statutes is a judicial function, naturally the construction placed upon a statute by an executive or administrative official will not be binding upon the court. Yet where a certain contemporaneous construction has been placed upon an ambiguous statute by the executive or administrative officers, who are charged with executing the statute, and especially if such construction has been observed and acted upon for a long period of time, and generally or uniformly acquiesced in, it will not be disregarded by the courts, except for the most satisfactory, cogent or impelling reasons. In other words, the administrative construction generally should be clearly wrong before it is overturned. Such a construction, commonly referred to as practical construction, although not controlling, is nevertheless entitled to considerable weight. It is highly persuasive.
John O’Nale, the Director of ACD prior to Russell, wrote a letter to a Pennsylvania Company in 1974, in which he commented on § 26-26-1102:
Goods moving in interstate commerce may be assembled, bounded, joined, processed, dismantled, divided, cut, broke in bulk, relabeled, or repackaged, yet still be entitled to exemption from ad valorem taxation. There is no time limit on how long such goods may be stored.
The only requirement for exemption is the goods must be destined for out-of-state.
Mr. Russell, the ACD Director from 1976 to 1988, interpreted the Statute and instructed assessors around the state that raw materials being processed into a product which will be shipped out of the state do not attain a situs for personal property taxation purposes.. Mr. Harrington, as Director of AIDC and in charge of “marketing” Arkansas to attract companies to locate in Arkansas, interpreted the Statute to mean raw materials will not be taxed so long as they are processed and shipped outside the state. AIDC has published informational brochures stating, in effect, this interpretation of § 26-26-1102.
The General Assembly enacted Act 269 obviously having in mind the purpose of making Arkansas competitive in attracting new manufacturing companies to locate in this State. The Emergency Clause stated in relevant part:
It is hereby determined by the General Assembly that prospective manufacturing and processing industries and commercial warehouses are confused as to ad valorem taxation of personal property in transit through Arkansas, and that because of this confusion the decision to locate industries therein may be adversely influenced to the extent that the State may lose valuable new industries. Therefore, an emergency is hereby declared to exist,....
The Emergency Clause indicates the General Assembly wanted to clarify the status of ad valorem taxes on personal property in transit through Arkansas in a manner so as to encourage decisions to locate industries in this State. It is very doubtful to us that the General Assembly intended to entice manufacturers to Arkansas by exempting from taxation property destined for other states only when it achieved the manufactured form. We can think of no reason why material should be taxable by virtue of its presence here in one form but not in another when the purpose is to exempt things which will be sold or otherwise disposed of outside Arkansas.
We recognize, and have recited the evidence above, that various county officials have given various interpretations of the law in question. However, we recognize that the state officials given overarching responsibility for interpretation as heads of the ACD interpreted the law as exempting the raw materials from as early as 1974 until 1988. That long period of interpretation favoring the exemption at the state level is persuasive. It is clear that before 1988 the ACD was interpreting the Statute in accordance with its perceived purpose as did the AIDC.
Given the ambiguity of the Statute, our understanding of the intent of the General Assembly, and the interpretation and application given to § 26-26-1102 by officials, we hold § 26-26-1102 exempts from ad valorem taxation raw materials shipped to Arkansas for inclusion in tangible personal property manufactured, processed, or refined here for shipment outside the state.
4. Voluntarily paid taxes
Omega paid the 1986, 1987, and 1988 taxes voluntarily, and thus it is not entitled to have them refunded. Rutherford v. Barnes, 312 Ark. 177, 847 S.W.2d 689 (1993); City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982); cert. denied 462 U.S. 1111 (1983); Thompson v. Continental Southern Lines, Inc., 222 Ark. 108, 257 S.W.2d 375 (1953).
Reversed and remanded.
Hays and Brown, JJ., dissent. | [
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Ed F. McFaddin, Justice.
This litigation stems from a timber contract between the parties.
In 1947 appellees agreed to purchase, and appellants agreed to sell, the pine and oak timber of specified size from eight tracts of land totaling 1,960 acres. The agreed price was to be $30 per thousand for pine timber, and $12 per thousand for oak timber; and the appellees were to cut and remove the timber from the tracts within a specified time. Appellees paid appellants $10,000 as part payment and were to render regular reports and calculations. Included in the contract was the timber on a tract of 1,160 acres, known as the “Standridge Tract,” concerning which appellants were in litigation; and the con tract provided that if appellants lost snch litigation, then the Standridge Tract would he deleted from the contract. The appellants lost snch litigation and, as a result, the. appellees claimed the timber on the remaining tracts was not sufficient to equal the $10,000 initial payment and the other payments made; and appellees brought this action to recover $1,734.82 claimed to be due them. Appellants conceded that appellees would have been entitled to a refund if the timber on the remaining tracts had not equalled $10,000 and other payments; but appellants claimed that the timber exceeded the total payments by $2,339.29 for which amount appellants prayed judgment on their cross-complaint. The cause was tried to a jury and resulted in a verdict and judgment in favor of ap-pellees for $1,734.82; and appellants, in seeking a reversal, present the contentions now to be discussed.
I. Admission of Evidence. The trial court, over appellants’ objections, allowed appellees’ witness, Alexander, to introduce in evidence a statement of several pages which was an audit or recapitulation of appellees’ records concerning the timber cut and removed. Appellants claim that this statement was inadmissible under the rule against hearsay evidence; and they cite Central CoalS Coke Company v. John Henry Shoe Company, 69 Ark. 302, 63 S. W. 49; Johnson v. Berg, 147 Ark. 323, 227 S. W. 413; Rouw v. Arts, 174 Ark. 79, 294 S. W. 993.
We conclude, however, that the evidence introduced in the case at bar made the Alexander statement admissible on every point except as to which tract of timber furnished each load of logs. Here is such evidence: Oscar Graham testified that he made duplicate tickets just as he scaled each load of logs; that all of the tickets were written by him except one, and he furnished the information for that one; and he gave one copy to the timber hauler, and filed the other copy with Herbert Watson, bookkeeper of appellee. These original tickets were introduced in evidence. So Alexander’s testimony about the tickets was a recapitulation of what the tickets showed and was substantiated by the man who made them. Herbert Watson testified that he posted appellees’ ledgers from the said original tickets; and the ledgers were exhibited at the trial. So Alexander’s statements of what the ledger showed were not only supported by the man who had made the tickets but also by the man who had made the entries in the ledger.
Graham and Alexander each testified that Alexander was the auditor, or head bookkeeper; that when Alexander prepared the questioned statement, Graham assisted him; that the statement was prepared for appellants ; and that one of the appellants personally checked the appellees’ books and haul tickets. Testifying in the case were a timber cutter, timber hauler, the log scaler who made the tickets, and the bookkeeper, as well as Alexander, who prepared the statement introduced. In short, the person performing each stage of the procedure testified; and such testimony removes the statement from the inhibition of hearsay testimony, because the statement prepared by Alexander and introduced in evidence was a recapitulation of the combined testimony of the witnesses who testified from personal knowledge. This is true as to every part of the Alexander statement, except that part which attempted to show the particular tract from which each log came, and that point is further discussed in Part II, infra.
Furthermore, since the timber contract required the appellees to submit to appellants a statement of the timber received under the contract, this statement made by Alexander, under all of the circumstances heretofore mentioned, might have.been a record made in the regular course of business, and admissible under the rules stated in Alexander v. Williams-Echols Dry Goods Company, 161 Ark. 363, 256 S. W. 55. And see, also, Act 293 of 1949 which is an Act to provide for the introduction in evidence of records made in the regular course of business.
II. Motion for an Instructed Verdict. At the close of the plaintiffs’ case in chief, the defendants’ (appellants here) motion for an instructed verdict was refused and such ruling is assigned as error. In testing the correctness of the Court’s ruling, we must consider all the evidence in the case. See Grooms v. Neff Harness Company, 79 Ark. 401, 96 S. W. 135; Fort Smith Cotton Oil Company v. Swift & Company, 197 Ark. 594, 124 S. W. 2d 1.
Appellants ’ main insistence on this point is that the contract required the logs to be scaled “at the mill site” of appellees, whereas, in fact, some of the logs were scaled at. a railroad point. Appellants also insist that the contract required appellees to keep a record of the timber cut from each tract, and that appellees failed to comply with such provisions.
As to these matters, there was evidence (a) that Carpenter — one of the appellants — checked appellees’ books and haul tickets each two weeks and raised no objection to the place at which the logs were scaled, or as to the failure, if any, to show from which tract the timber came; and (b) that statements of the logs so scaled were delivered to the appellants and received by them without objection. Such evidence was sufficient to take the case to the jury on the principal issue of whether, in fact, there was sufficient timber on'appellants ’ lands to equal the advance deposit of $10,000 plus the other payments made. That was the bitterly contested feature of the case. The jury might well have found that after the elimination of the Standridge Tract, the parties considered the point of delivery and the designation of tracts from which the timber came to be so inconsequential as to ignore them in their dealings. On this basis the Alexander statement as to the designation of the tracts from which the logs came was immaterial. The motion for an instructed verdict was properly denied.
III. Appellants’ Instruction No. 3. Appellants complain of the refusal of the Court to give this instruction which reads:
“You are instructed that it was the duty of the plaintiffs to have all tracts of lands included in the timber purchasing contract surveyed by metes and bounds and the boundaries plainly established in order to learn or ascertain the amount of merchantable timber they were obligated to cut and, if you believe from the evidence, that plaintiffs failed or neglected to so fix said boundaries then you will take that into consideration in determining whether plaintiffs properly accounted for all timber they were obligated to cut and in arriving at your verdict on their claim under their complaint and amendment thereto.”
This instruction was intended to make applicable to this case the provisions of § 54-201, Ark. Stats. (1947). But that section is clearly for the protection of owners of property adjacent to timber about to be cut, and certainly can be waived by parties as to their timber, even ' if applicable to such a situation. That such provision was waived by all parties in this case is shown by the evidence. . Appellee, Leo Moudy, testified that appellant, Rice, told him that appellees would be relieved of having the land surveyed because appellant, Carpenter, was familiar with the tracts of timber and would show the cutters where, to cut. Appellant, Carpenter, testified that lie knew the lines of the different tracts and showed the cutters such lines. So certainly the conduct of the parties constituted a waiver of the Statute, even if applicable,. which we do not decide. The trial court was, therefore, correct in refusing appellants’ Instruction No. 3.
Finding no error, the judgment is affirmed.
See Standridge v. Rice, 212 Ark. 703, 207 S. W. 2d 598; and Rice V. Standridge, 214 Ark. 806, 218 S. W. 2d 88.
There were one or two small items, involving a saw and a claimed shortage on some lumber, that were included in the figure named in the cross-complaint.
“Evidence is hearsay when its probative force depends on the competency and credibility of some person other than the witness. Subject to certain exceptions, the courts will not receive testimony of a witness as to what some other person told him, as evidence of the existence of the fact asserted,” 31 C. J. S. 919.
That such is true is indicated by a statement made by appellants’ attorney, when — in objecting to appellees’ interrogation of a witness as to each of the haul tickets — he said: “If the court please I don’t want to interrupt this line of examination if the court thinks it is necessary, but there is no controversy between us as to the method they kept books. The controversy is whether they cut all the timber they should cut and whether they cut some they shouldn’t cut. We don’t dispute their method of keeping books.”
This Section reads: “Before any person or persons, who shall desire to cut and remove for purpose of rafting, making railroad ties, piling, telegraph poles, staves, or sawing into lumber, any timber from any land in this State, he, or they, shall, unless the same has been surveyed and the boundaries thereof ascertained and known, before cutting and removing the same, procure the county surveyor of the county in which such land may be situated and cause such land to be surveyed by said surveyor, and the metes and bounds of such land shall be marked and plainly established. And this act shall apply as well to persons purchasing timber rights from lands of this state, as to land owners. (Act Mar. 6, 1885, No. 45, § 1, P. 50: C. &. M. Dig., § 7018; Pope’s Dig., § 8998).” | [
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'Smith, J.
This appeal involves the validity of the alleged last -will and testament of Mrs. Lillian M. Gathright. The probate of the will was opposed in the probate court upon the grounds that the execution of the will had been procured by undue influence, and that the testatrix lacked mental capacity to make it. There was a finding in favor of the will, and the same issues were tried in the circuit court, with the same result, and this appeal is from that judgment.
A number of witnesses gave testimony bearing upon these questions, and, while it is contended that the verdict of the jury was contrary to the preponderance of the evidence, it is conceded that the testimony is.legally sufficient to support the finding that the execution of the will was not procured through the exercise of undue influence, and that the testatrix had the mental capacity to make the will. It will not, therefore, be necessary to discuss these questions of fact, or to make any recital of them, further than is necessary to present the assignments of error raised on this appeal.
We are asked to reverse the judgment of the circuit court admitting the will to probate for the reasons that error was committed in the admission of the testimony of Dr. George B. Fletcher, and that of Mrs. Helen Knight, and in giving instructions numbered 5 and 12. These assignments of error will be considered in the order stated.
The contestants introduced, over the objection and exception of contestee, the certificate of death issued by the registrar of Vital Statistics of the State, which was based upon the report of Dr. George B. Fletcher, who had attended Mrs. Gathright in her last illness. This certificate recited the cause of death to have been chronic alcoholism, with myocardial failure as a secondary or contributing cause.
Dr. Fletcher was called as a witness at the trial from which this appeal comes by contestee, who was named as executrix off the will and who had qualified as such after its probate had been ordered !by the probate court. Dr. Fletcher was asked what the mental condition of Mrs. Gathright was on the day of the execution of the will, and the objection was made that this testimony was privileged and incompetent under § 4149, C. & M. Digest, which reads as follows:
“No person authorized to practice physic or surgery and no trained nurse shall be compelled to disclose any information which he may have acquired from his patient while attending him in a professional character, and which information was necessary to enable him to prescribe as a physician or do any act for him as a surgeon or trained nurse. ”
Many cases are cited in the briefs of opposing counsel on the nature of this privilege, and upon the question of the right to waive it, whether by the heir or the personal representative; but we find it unnecessary to decide this question.
Mrs. Gathright was a childless widow at the time off her death, and her father and mother were both dead. She was survived by two brothers and two sisters, none of whom were mentioned in the will, and the sole devisee was contestee, a niece, who was not an heir, for the reason that her mother, one of Mrs. Gathright’s sisters, is living, and the contest is on behalf of the other sister and the two brothers, who, together, would, in the absence of a will, take a three-fourths interest in the estate.
In Jones on Evidence (2d ed.) § 2198, page 4194, it is said: “By the weight of authority, it is held that, since the patient may waive the privilege for the purpose of protecting his rights, the same waiver may be made by those who represent him after his death, for the purpose of protecting rights acquired by him. It has been held, in some states, that this privilege cannot be waived by the heirs; that the right of waiver belongs to the personal representative alone.”
We have here a contest between all the heirs, except the mother of contestee, and the executrix, although the latter’s right to act as such is, of course, dependent upon the validity of the will, which is the question in issue. We think the record made at the trial below, to which reference will later be made, shows that first one and then the other of the parties have waived the privilege of the statute.
That the statute may be waived by a proper party in interest is clearly established by the great weight of authority. In the case of National Annuity Association v. McCall, 103 Ark. 206, 146 S. W. 125, 48 L. R. A. (N. S.) 418, it was said: “This statute accords the privilege to a patient of objecting to disclosures of matters communicated to or information obtained by a physician ás such, and this privilege does not cease with the death of the patient. But this privilege may be waived by the patient himself and after his death by his representative; and so, too, where one occupies a relation to the deceased by reason of a contract, such as is involved in this case, wherein he is made the beneficiary of a life insurance policy, he has by virtue of this statute a right to object to testimony relative to the communications therein named as privileged, and he has also the right to waive this privilege conferred by it. 4 Wigmore on Evidence, § 2387; Penn. Mut. Life Ins. Co. v. Wiler, 100 Ind. 92, 50 Am. Rep. 769.” See, also, 40 Cyc. chapter witnesses, page 2397, and cases cited in the note to that text, and cases cited in the notes by the annotater to the cases of Maine v. Maryland Casualty Co., 15 A. L. R. 1536, and Schornick v. Schornick, 31 A. L. R. 159 ; Maryland Casualty Co. v. Maloney, 119 Ark. 434, 178 Ark. 387, L. R. A. 1916A, 519 ; Bradway v. Thompson, 139 Ark. 154, 214 S. W. 27.
We are not unmindful of the case of Fidelity & Casualty Co. v. Meyer, 106 Ark. 91, 152 S. W. 995, 44 L. R. A. (N. S.) 493, where it was held, (to quote a head-note) that ‘ ‘where a policy of insurance does not contain any provision waiving the statutory privilege as to the testimony of attending physicians concerning information received in the course of professional employment, the privilege is not waived by plaintiff who introduces an affidavit by a physician of the death of the insured.” That was a case, however, where the 'beneficiary in a policy of insurance had furnished, as part of the proof of loss, the certificate of a physician in an attempt to secure an amicable adjustment and settlement, and there was no litigation then pending. Here the death certificate was offered by the heirs in the trial before the court, and when this was done the right to object to the testimony of the physician who made the certificate was waived, if, indeed, the contesting heirs had the right to object to its introduction.
The statute quoted may therefore be waived, and we 'think the record shows that it has been. It was waived by the- heirs when they introduced the record of the Registrar of Vital 'Statistics, which contained, and was based upon, a certified copy of the death certificate prepared by Dr. Fletcher as the attending physician during the last illness of the testatrix. This certificate was not introduced to prove her death, for that was an admitted fact, and, had it not been, could easily have been proved without reference to the certificate. The purpose of its introduction was to prove death from chronic alcoholism, a circumstance calculated to affect mental capacity, and which, according to the testimony of a medical expert offered by contestants, did affect the mental capacity of the victim who had died from that cause.
Bo, therefore, when this certificate was offered in evidence (over contestee’s objection), the purpose of the statute could no longer ¡be affected. The patient’s life had been laid bare; her infirmity, against which she had vainly struggled and had sought to conceal, as is shown by other testimony in the case, was disclosed. When this had been done by the heirs, we perceive no reason why the physician who made the certificate might not be called by the executrix to explain and interpret his certificate, as no purpose which § 4149, C. & M. Digest, was intended to subserve could then prohibit this from being done. Dr. Fletcher testified that Mrs. Gathright was sane on the day the will was made, and we think no error was committed in admitting this testimony under the facts stated.
Mrs. Helen Knight, who was the superintendent of the hospital where Mrs. Gathright died and was one of the attesting witnesses to the will, was permitted, over contestants’ objection, to answer “Yes, sir” to the following question: “Q. In your opinion or judgment was she capable of making a will on the date that it was made?” It was specifically objected that this was the very question which the jury was called upon to determine and should not have been answered by the witness for that reason, and that the competency of a person to make a will could not be proved by a lay witness.
It may be first said that this question and answer appear in the testimony of Mrs. Knight taken at the trial in the probate1 court, a transcript thereof being read in the circuit court as her deposition. No specific objection was made to this question and answer in the probate court, and the witness was not present at the trial in the circuit court. But, when this deposition is read in its entirety, it appears that the witness stated fully the facts upon which the opinion was based, and that she had the opportunity to observe Mrs. Gathright to a sufficient extent to express an opinion on Mrs. Gathright’s sanity.
Had objection been made to the form of this question -when it was propounded to the witness at the trial in the probate court, it might then have been reformed to call for an opinion on Mrs. Gathright’s sanity, rather than on her testamentary capacity, but no such opportunity existed when the deposition was read at the trial in the circuit court.
In the case of Sloan v. Newman, 166 Ark. 259, 266 S. W. 257, it was said: “It is next contended that the court erred in permitting a witness, Miss Rose, who was a nurse in the hospital in New Orleans where Mrs. Rogers died, to state, by comparison with other persons with whom the witness came in contact professionally, her opinion of the mental capacity and strength of the testatrix, Mrs. Rogers. 'Conceding that the form of the question constituted an awkward method of eliciting the testimony, yet it was perfectly competent to take the statement of the witness as to Mrs. Rogers’ mental capacity at the time she was in the hospital, which was a short time after the execution of the will, and while she was attended professionally by the nurse, who was shown to be a person of long experience and who had opportunities of .judging the mental capacity o|f Mrs. Rogers. There was no error in allowing the witness to testify on this subject, and the form of the question was not prejudicial. ’ ’
' So, here, we say that, conceding that the form of the question constituted an awkward method of eliciting the testimony, yet it was perfectly competent to take the statement of the witness as to Mrs. Gathright’s mental capacity at the time she was in the hospital, when and where the will was signed.
Moreover, while Mrs. Knight was a lay witness, she was an attesting witness. There was no contention that Mrs. Gathright was normally a person of unsound mind, but the cause was tried upon the theory that her illness had progressed to such an extent that her mind was so far affected by the disease from which she died that she could not remember the nature, character and extent of her property, and did not know the disposition she was making of it, and did not appreciate the merits of those persons who, as her heirs-at-law, might have claims upon her bounty. Conscious intelligence upon these questions constitutes what is known in the law as testamentary capacity, and the existence of this capacity is the question which the jury was called upon to decide. But attesting witnesses, although lay and not expert, are permitted to express opinions on this subject. Of course, the value of this testimony may be tested by an examination of the witness to disclose his or her own intelligence and the opportunities the witness had to form the opinion and its consequent value.
In the early and well considered case of McDaniel v. Crosby, 19 Ark. 533, it was said: “The attesting witnesses to a will are regarded in law as placed around the testator, that no fraud may be practiced upon him in the execution of the will, and to ascertain and judge of his capacity. (Citing, among other cases, that of Kelly’s Heirs v. McGuire, 16 Ark. 600, and Abraham v. Wilkins, 17 Ark. 292). On this ground these witnesses are permitted to testify as to the opinion they formed of the testator’s capacity at the time olf executing his will, and their opinions, and the facts they state as occurring at the time are, generally, to be particularly regarded by the court, though the opinions of other witnesses are ordinarily inadmissible, at least unless founded upon facts testified to by themselves or others in the cause. (See 1 Jarman on Wills, 74). Witnesses, other than the attesting witnesses, must state the facts, but not their opinion or judgment merely of the sanity or insanity of the testator. See Kelly v. McGuire, supra; Abraham v. Wilkins, supra; Jarmian on Wills, 75.”
That opinion was based upon the case of Kelly’s Heirs v. McGuire, 15 Ark. 555, which has always been regarded as> a landmarik in this State, and in that case it was said: “To this instrument, there were four subscribing witnesses. Subscribing witnesses, it is said, are placed around a testator to ascertain and judge of his capacity. 3 Mass. 237; 4 Mass. 593. Their attention is supposed to be directed to that point, and they may give their opinions in respect to the sanity or capacity of the testator. 1 Greenl. Ev. 440. * * * There are strong reasons for it (the rule just stated). Human language is imperfect, and it is often impossible to describe, in an intelligible manner, the operation of the mind of another. We learn its conditions only by its manifestations, and these are indicated not alone by articulate words, but by signs, gestures, conduct, the expression of the countenance, and the whole action of the man. Nor is there any danger in such opinions, when the reasons for them are disclosed. The value and force of the opinion depended on the general intelligence of the witness, the grounds upon which it is based, the opportunities he had for accurate and full observation, and his entire freedom from interest and bias. ('Citing cases.) ”
See, also, Potts v. House, 6 Ga. 324, 50 Am. Dec. 329, and cases cited in the annotater’s note to that case, and vol. 7 of Notes to American Decisions, page 695, further annotating the case of Potts v. House, supra, and Clapp v. Fullerton, 34 N. Y. 190, 90 Am. Dec. 681.
One olf the instructions specifically objected to was numbered 5, and reads as follows: “You are instructed that the law presumes that Mrs. Lillian Gathright, at the time of the execution of the will by her, was of sound and disposing mind and memory, and the burden is upon the contestant's to prove, by a preponderance of the evi- • dence, that she was not of sound mind. ’ ’
This instruction musit, of course, be read in connection with the other instructions -given by the court, one of-which, given at the request of contestants, told the jury that: “If you further find from a preponderance of the evidence that on said day and at the time of executing said will she did not have the mental capacity, as defined in these instructions, to make a will, you will find against the will. ’ ’
A similar instruction was given on the question of undue influence, but that feature of the case is not insisted upon for the reversal of the .judgment of the court admitting- the will to probate.
Instructions similar to the one quoted have been frequently approved by the court, beginning with the case of Kelly’s Heirs v. McGuire, supra. A late case is that of Hamilton v. Hamilton, 178 Ark. 241, 10 S. W. (2d) 377, where it was said: “In cases involving- the- issues of insanity, ineompetency and undue influence, this court has ruled that the burden rests upon the contestants of the will, when it appears upon its face to- have been executed in accordance with the statutory requirements and when properly proved and probated. McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 690 ; Smith v. Boswell, 93 Ark. 66, 124 S. W. 264 ; Miller v. Carr, 94 Ark. 176, 126 S. W. 1068. Section 10514 of Crawford & Moses’ Digest provides that a will so proved, recorded, and signed by the clerk of probate and attested by the seal of office, may be read as evidence, without any' further proof thereof. In other words, when such a will is introduced, it malíes a prima facie case which must be overcome ;by the pro.of introduced by the contestants of such a will. ’ ’
A similar instruction was approved in the case of Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405.
The subject was reviewed by Mr Justice Battle, with his usual care, in the case of Bims v. Collier, 69 Ark. 245, 62 S. W. 593, where he said: “In McCulloch v. Campbell, 49 Ark. 373 (5 S. W. 590), Mr. Justice Smith, in delivering the opinion of the court, said: ‘ There is some confusion in the reported cases on the adjustment of the burden of proof of insanity in will contests. But we think the weight of authority, both in England and in this country, establishes the rule that the production of a proper writing purporting to be the will of a deceased person, which is rational on its face, and which is proved to have been executed and witnessed in accordance with the statute, makes a prima facie case, and devolves upon the contestants the onus of showing the testator’s incompetency. The rule rests upon the presumption that all men are sane until the contrary is proved. ’ ’ ’ He proceeded further to1 say: “We d;o not think that the presumption of sanity in a case in which a will is contested has any greater force than any other rebuttable or disputable presumption of law has in any ordinary civil case. When such presumptions are overcome by evidence, the conflicting evidence on the question of fact is to be weighed, and a verdict rendered in favor of the party whose proofs have most weight; and the presumption is olf value only as it has probative force, ‘ exlcept it be that on the entire case the evidence is equally balanced, in which event the arbitrary power of the presumption of law will settle the issue in favor of the proponent of the presumption.’ In Graves v. Colwell, 90 Ill. 616, it is said: ‘It has been said that presumptions of law derive their force from jurisprudence, and not from logic, and that such presumptions are arbitrary in their application. This is true of irrebuttable presumptions, and, primarily, of such as are rebuttable.- It is true of the latter until the presumption has been overcome by proofs, and the burden shifted; but when this has been done, then the conflicting evidence on the question of fact is to be weighed, and the verdict rendered, in civil cases, in favor of the party whose proofs have most weight, and in this latter process the presumption of law loses all that it had of mere arbitrary power, and must necessarily be regarded only from the standpoint of logic and reason, and valued and given effect only as it has evidential character. Primarily, the rebuttable legal presumption affects only the burden of proof, but if that burden is shifted back upon the party from whom it first lifted it, then the presumption is of value only as it has probative force, except it be that on the entire case the evidence is equally balanced, in which event the arbitrary power of the presumption of law would settle the issue in favor of the proponent of the. presumption.’ ”
The will in this case is rational on its face, and was executed and witnessed in accordance with the statute, and we do not think that the instructions, when read together, offend against the law as announced in the opinion by Judge Battle and the other cases cited.
The other instruction alleged to be erroneous and prejudicial was numbered 12, and the portion objected to reads as follows: “The fact that it leaves all of her estate to one relative to the exclusion of others does not raise a presumption of lack of capacity in her to make such will.”
It is argued that the instruction was a charge upon the weight of evidence, and excluded from the consideration of the jury the question whether the will was an unnatural one and such a will as a sane person would •have made and in conflict with other instructions which permitted the jury to consider the circumstances stated in the instruction for that purpose.
We think the objections 'Stated are not well taken. It is true that instructions were given at the request of contestants which permitted the jury to consider the fact that the will excluded the persons who, in the absence of a will, would be the heirs-at-law, as a circumstance to be considered in determining whether the will was that of a sane person; but there is no conflict in the instructions in this respect. Instruction numbered 12 does not tell the jury not to consider this circumstance, but only declared that the circumstance did not raise a presumption of lack of capacity to make a will. It was not a charge upon the weight of testimony, but was a declaration of law to the effect that one might ignore his heirs-at-law in the disposition of his property by will, and the cases are unanimous to this effect. It is, of course, a circumstance to be considered in determining the sanity of one who makes such a will, but the instruc tion did not exclude it (for that purpose. It merely told the jury that the circumstance itself created no presumption against sanity, and there was therefore no error in giving it.
Upon a consideration of the whole case we find no error, and the judgment must be affirmed, and it is so ordered. | [
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Robert H. Dudley, Justice.
In 1970 we held that a federal savings and loan association must demonstrate that its security is impaired before it will be permitted to accelerate the maturity date of a loan and declare the entire debt due if the property securing the loan is sold or otherwise transferred. Tucker v. Pulaski Federal Savings & Loan Ass’n, 252 Ark. 849, 481 S.W.2d 725 (1972). Four years later the Federal Home Loan Bank Board issued a regulation which, in part, provides:
[A federal savings and loan] association continues to have the power to include, as a matter of contract between it and the borrower, a provision in its loan instrument whereby the association may, at its option, declare immediately due and payable sums secured by the association’s security instrument if all or any part of the real property securing the loan is sold or transferred by the borrower without the association’s prior written consent. Except as [otherwise] provided in . . . this section . . . , exercise by the asociation of such option (hereafter called a due-on-sale clause) shall be exclusively governed by the terms of the loan contract, and all rights and remedies of the association and borrower shall be fixed and governed by that contract.
12 C.F.R. § 545.8-3(f) (1982).
The issues in this case are whether our holding is incompatible with the federal regulation and, if so, does the preemption doctrine apply? We answer both questions in the affirmative and, accordingly, reverse the decision of the trial court. The Court of Appeals certified the case to this Court siflce it involves an issue of significant public interest and a legal principle of major importance. Rule 29 (4) (b).
Appellees, Roy and Katherine Davis, borrowed $34,800 from appellant, Independence Federal Savings and Loan Association, a federally chartered savings and loan association. As evidence of the debt and security for its payment the Davises executed a promissory note and a real estate mortgage which contained the following due-on-sale clause:
17. Transfer of the Property; Assumption. If all or any part of the Property or an interest therein is sold or transferred by Borrower without Lender’s prior written consent, excluding (a) the creation of a lien or encumbrance subordinate to this Mortgage, (b) the creation of a purchase money security interest for household appliances, (c) a transfer by devise, descent or by operation of law upon the death of a joint tenant or (d) the grant of any leasehold interest of three years or less not containing an option to purchase, Lender may, at Lender’s option, declare all the sums secured by this Mortgage to be immediately due and payable. Lender shall have waived such option to accelerate if, prior to the sale or transfer, Lender and the person to whom the Property is to be sold or transferred reach agreement in writing that the credit of such person is satisfactory to Lender and that the interest payable on the sums secured by this Mortgage shall be at such rate as Lender shall request. If Lender has waived the option to accelerate provided in this paragraph 17, and if Borrower’s successor in interest has executed a written assumption agreement accepted in writing by Lender, Lender shall release Borrower from all obligations under this Mortgage and the Note. ,
On November 11, 1979, the Davises by contract sold the real estate to Richard and Adelia Swink. On January 11, 1980, the Swinks by contract, in turn, sold the real estate to Johnny and June Wildman. The contracts of sale provided for delivery of a warranty deed upon the payment of all indebtedness. The appellant was not notified and did not consent to the contracts of sale.
Appellant learned of the sales and treated the due-on-sale clause as violated. It notified the Davises of the acceleration of the date of maturity of the debt and that the entire debt was due. When the Davises refused to pay, appellant filed suit for acceleration of the maturity of the debt, for judgment principal and accrued interest on the note plus attorney’s fees and costs and for foreclosure on the mortgage securing the debt. The trial court held that the sales contracts violated the due-on-sale clause but, citing Tucker, refused to accelerate the maturity of the debt as there was no proof that appellant’s security had been impaired.
The only restrictions specified in the Federal Home Loan Bank Board’s regulation are contained in 12 C.F.R. § 545.8-3(g) (1982) as follows:
(g) Limitations on the exercise of due-on-sale clauses. With respect to any loan made after July 31, 1976, on the security of a home occupied or to be occupied by the borrower, a federal association:.. .(3) waives its ojation to exercise a due-on-sale clause as to a specific transfer if, before the transfer, the association and the person to whom the property is to be sold or transferred... agree in writing that the person’s credit is satisfactory to the association and that interest on sums secured by the association’s security interest will be payable at a rate the association shall request. Upon such agreement and resultant waiver the association shall release the existing borrower from all obligations under the loan instruments, and the association is deemed to have made a new loan to the existing borrower’s successor in interest.
Under the Board’s regulations, a federal association’s right to accelerate a loan is not limited to cases where the lender’s security is impaired. The regulations, therefore, are incompatible with our decision in Tucker, supra.
In June, 1982, the Supreme Court of the United States, in a well reasoned opinion by Justice Blackmun, ruled on this precise issue. Fidelity Federal Savings & Loan Ass’n. v. De La Cuesta,_U.S__, 50 U.S.L.W. 4916 (U.S. June 23, 1982). In that case, De La Cuesta and others purchased real estate in California from a person who had borrowed money from Fidelity Federal Savings and Loan Association. As security for the loan, the original borrower had given Fidelity a deed of trust on the property containing a due-on- sale clause. Fidelity was not notified prior to the purchases from the original borrower and when it learned of the transfers it exercised its option to accelerate the date of maturity of the loan. When the loans were not paid, Fidelity instituted nonjudicial foreclosure proceedings as authorized by California statutes. De La Cuesta and the other purchasers then filed suit against Fidelity in California State Court, asserting that the due-on-sale clause could not be enforced “unless the lender can demonstrate that enforcement is reasonably necessary to protect against impairment to its security or the risk of default.” Id. at_, 50 U.S.L.W. at 4918. De La Cuesta’s suit was based upon a doctrine enunciated in Wellenkamp v. Bank of America, 21 Cal.3d 943, 582 P.2d 970 (1978), a case in which California reached the same result that we had reached in Tucker, supra.
In De La Cuesta the California trial court held that the federal government had preempted the subject of regulation of federal savings and loans precluding the extension of their Wellenkamp doctrine to federal savings and loans. The Court of Appeal reversed, however, concluding that Wellenkamp was controlling. According to the Court of Appeal, Congress had not expressly or impliedly preempted state due-on-sale law nor fully occupied the field of federal savings and loan regulation__U.S. at_, 50 U.S.L.W. at 4918.
The Supreme Court of the United States then reversed the Court of Appeal, holding that the Federal Home Loan Bank Board’s due-on-sale regulation bars application of the Wellenkamp rule to federal savings and loan associations. Id. at_, 50 U.S.L.W. at 4924.
According to the Supreme Court in De La Cuesta, the Federal Home Loan Bank Board was vested with plenary authority in 1933 to administer the Home Owners’ Loan Act of 1933. The Board, which has the authority to promulgate regulations governing the powers and operations of federal savings and loan associations, promulgated the due-on-sale regulations in 1976 in an attempt to preserve “the financial security and stability of federal associations . . . [which] would be endangered if . . . the security property is transferred to a person whose ability to repay the loan and properly maintain the property is inadequate”. Id. at-, 50 U.S.L.W. at 4917. Additionally, the Court pointed out that in the preamble to the final publication of the regulation, the Board emphasized that “[f]ederal associations shall not be bound by or subject to any conflicting State law which imposes different. . . due-on-sale requirements”. Id.
The Court discussed the language and history of the Home Owners’ Loan Act and found that both indicate that the Board was authorized to regulate a system of federal savings and loan associations. Id. at_, 50 U.S.L.W. at 4917. In addition, Congress had delegated power to the Board expressly for the purpose of creating and regulating those associations in order to ensure that the complete federal system would remain financially sound and able to supply financing nationwide for home construction. Id. at _, 50 U.S.L.W. at 4921. The Court held that, consistent with that purpose, the Board reasonably exercised its authority in promulgating the due-on-sale regulation. Id. at _, 50 U.S.L.W. at 4923-24.
The Court found Wellenkamp and the regulation to be in direct conflict and applied the preemption doctrine which is found in the Supremacy Clause, U.S. Const., Art. VI, Cl. 2. Similarly, our case of Tucker and the regulation are incompatible. Thus, it is clear that our rule in Tucker can no longer apply to federal savings and loan associations in Arkansas. Therefore, we reverse on direct appeal.
Appellees contend that they are entitled to affirmative relief in this Court. However, since there was no notice of cross-appeal we do not consider the argument for affirmative relief. Elcare, Inc. v. Gocio, 267 Ark. 605, 593 S.W.2d 159 (1980).
Supplemental Opinion on Denial of Rehearing delivered March 21, 1983 | [
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Tom Glaze, Justice.
Appellant was convicted of raping a thirteen-year-old girl and was sentenced by a jury to sixty (60) years imprisonment. On appeal, he argues the evidence was insufficient to support his conviction. We disagree, and therefore affirm.
On appellate review of a criminal case, we view the evidence in the light most favorable to the state to determine whether the verdict is supported by substantial evidence. Williams v. State, 294 Ark. 345, 742 S.W.2d 932 (1988). Evidence is substantial if the jury could have reached its conclusion without having to resort to speculation or conjecture. Id. A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen (14) years of age. Ark. Code Ann. § 5-14-103(a)(3) (1987). In rape cases, the requirement of substantial evidence is satisfied by the rape victim’s testimony. Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988); Cope v. State, 292 Ark. 391, 730 S.W.2d 242 (1987). When determining the sufficiency of the evidence, we consider only the testimony that tends to support the verdict of guilty. See, e.g., Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988).
In reviewing the record in the present case, we conclude the state’s evidence clearly supports the appellant’s rape conviction. The prosecutrix testified that on October 30, 1987, she missed her school bus, and that, as she was returning from phoning her mother from a public phone, the appellant called for her to come over to talk to him. According to her testimony, he was standing on the outside stairs of his apartment complex. The prosecutrix stated that she knew the appellant. After she went over to talk with him, she testified that the appellant forced her to go upstairs with him. Once inside his apartment, she stated that the appellant took her to the back bedroom and pulled down her pants and underpants, tore her shirt, and put his penis in her vagina. The prosecutrix stated that the rape occurred between 8:30 and 9:00 a.m. During her testimony, she identified pictures of the appellant’s apartment as being the place where she was raped.
While the rape victim’s testimony alone meets the requirement of substantial evidence, the state also provided evidence to corroborate the victim’s account. A forensic serologist testified that semen was found on the prosecutrix’s vaginal swabs and smear slide, underpants, and jeans. The investigating officers testified that when the appellant was arrested in his apartment on the same day that the rape occurred, he was wearing clothes that fit the description the prosecutrix had given. In addition, during the search of the apartment, one of the officers found a baseball cap, bearing the name Ricky, on the top bunk in the back bedroom, where the prosecutrix had told the police the appellant put it before he raped her.
Appellant offered alibi testimony and other evidence in an attempt to discredit the evidence presented by the state. We point out, however, that it is the jury’s job to judge the credibility of the witnesses, and apparently the jury chose to believe the state’s case. See Lewis, 295 Ark. 499, 749 S.W.2d 672.
For the reasons stated above, we affirm. | [
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Kirby, J.,
(after stating the facts). Appellant insists for reversal that the court erred in holding that the funds due from the city to the contractor and paid to his surety company for completing the improvement were subject to garnishment for debts due from the contractor to either of appellees, not being for materials furnished or labor done in connection with the construction of the improvement. It has long been the established rule that an improvement district or governmental agency is not subject to garnishment at the instance of creditors of the contractor prior to the completion of the improvement contracted to be constructed. Newell Construction Co. v. Elkins, 161 Ark. 625, 257 S. W. 54 ; Wharf Imp. Dist. of Helena v. U. S. Gypsum Co., 181 Ark. 289, 25 S. W. (2d) 425.
The court’s finding that the improvement to be constructed was completed at the time of the issuance of the garnishments was contrary to the preponderance and weight of the testimony, which was virtually undisputed, that it had not been completed, and the court erred in holding otherwise.
Under the terms of the bond, a common law bond, the surety company was liable to the payment of the accounts for feed furnished the contractor for the mules used in the construction of the improvement as well as for the gasoline purchased for operation of the motor equipment used thereon. The bond provides: ‘ ‘ This bond is also made for the use and benefit of all persons, partnerships, firms or corporations whoi may furnish materials and labor for or on account of said contractor, or any of his sub-contractors in the construction of said landing strips, and this bond is conditioned that such contractor or contractors shall pay all indebtedness for labor and material furnished in the construction of said landing strips or in making said public improvements; and until said indebtedness for labor and material is fully paid, said bond shall continue in full force and effect, and said contractors, material furnishers and persons who perform labor upon said landing strips and each of them are hereby made obligees hereunder, the same as though their own proper names were written herein as such and they, and each of them may sue hereon.”
In the application for the bond the contractor made an assignment and transfer of all deferred payments and retained percentages that might be due and payable to him at the time of any default in the contract or that might thereafter become due him under the contract “to be by it credited upon any loss, cost, damage, charge and expense sustained or incurred by it under said bond.” The terms of the bond herein are broad enough to cover and include the payment of these claims and the case is not controlled by the decision in Goode v. Ætna Cas ualty & Surety Co., 178 Ark. 471, 13 S. W. (2d) 6, but rather upon a proper construction of its terms by the rule announced in Mansfield Lbr. Co. v. National Surety Co., 176 Ark. 1035, 5 S. W. (2d) 294, and Leslie Lbr. & Supply Co. v. Lawrence, 178 Ark. 574, 11 S. W. 458.
This bond recites it is also made fo.r the use and benefit of all persons who may furnish materials or labor for or on account of said contractor in the construction of the landing strips, conditioned “that such contractor or contractors shall pay all indebtedness for labor and material furnished in the construction of said landing strips or in making said public improvements”; and expressly that all such persons are made obligees in the bond and entitled to sue thereon.
There is no question here of the materials furnished not being used in the construction of the improvement within the meaning of the bond, nor of any proper assignment of the claims not being made. The groceries charged for were furnished to the contractor and by him advanced and distributed to the laborers. It is also true that the surety on the. contractor’s bond who completed the contract in accordance with its terms upon default of his principal is subrogated to the rights of the obligees in the bond to the extent necessary to reimburse himself, and has an equity in the funds due the contractor under the terms of the contract superior to that of a g-eneral creditor or an assignee or one who loans money to the contractor to pay for labor or materials necessary to complete the work. Lacey v. Maryland Casualty Co., 32 Fed. Rep. (2d) 28 ; Riverview State Bank v. Wentz, 34 Fed. (2d) 419 ; Note 45 A. L. R., p. 381 ; Prairie State Bank v. U. S., 164 U. S. 227, 17 S. Ct. 142 ; Henningsen v. U. S. F. & G. Co., 208 U. S. 404, 28 S. Ct. 389.
None of the money paid to the surety company by the city upon completion of the improvement by it was paid to the contractor after writs of garnishment were served, and he had no claim to the funds remaining in the hands of the city after making default on his contract, and there was therefore no money in the hands of the city belonging to the contractor at the time the garnishments were served which could have been subjected to the payment of the claims of appellees, and, as already said, the improvement was not completed- at the time the garnishments were issued and the city was not subject to garnishment. The decree is reversed accordingly, and the cause remanded with directions to dismiss the complaints of appellees against the city, garnishee, for want of equity. | [
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Ed. F. McFaddin, Justice.
This is a contest for the office of School Director. At the annual school election in 1949, appellant and appellee were rival candidates; and on the face of the returns, appellee was the victor. On October 7th appellant filed contest before the County Board of Education and made a bond conditioned in the exact language of § 3-1210 Ark. Stats. The appellant was unsuccessful in the contest before the County Board and filed his affidavit for appeal to the Circuit Court, but did not tender or file any bond for appeal.
In the Circuit Court appellee moved to dismiss the appeal on the ground that the appellant had not filed an appeal bond under Act 183 of 1925. The Circuit Court sustained the said motion in this language:
“. . . It is therefore considered, ordered, adjudged and decreed that Contestant’s appeal should be and the same is hereby dismissed for failure to file the appeal bond as required by law, . . .”
The correctness of the Circuit Court’s judgment is the only question presented on this appeal. Appellant thus states the issue:
“The sole question presented to the court in this appeal is whether or not the bond given by appellant when he filed his contest against the appellee . . . meets the requirements of Act 183 of 1925, requiring the applicant in all cases appealed from the County Board of Education where the money judgment is involved, to give bond for the payment of costs.”
Appellant claims that the bond which he filed at the beginning of his contest before the County Board was amply sufficient for all purposes, since it was conditioned . . that the contestant and his securities will pay to the contestee or defendant in the action, and the officers of the court, such sum of money as shall be adjudged against him in the court in which the suit shall he brought or in any court to which it shall be carried by appeal or otherwise.”
But Act 183 of 1925. says ‘. . . any person or persons being a party to the record or proceeding in a manner brought before any county board of education, who feels aggrieved by any final order or decision of any such Board of Education, may prosecute an appeal from any such final order or decision, provided, any such person or persons shall within thirty (30) days from the date of the final order or decision complained of, . . . enter into a bond with good and sufficient surety thereon in such sum as shall be ordered by such Board of Education . . . ”
That Act 183 of 1925 is the Statute governing appeals from the County Board of Education to the Circuit Court has been held in a series of cases, two of the most recent of which are Board v. Norforh District, 216 Ark. 934, 228 S. W. 2d 468, and Gibson v. Board, ante, p. 386, 230 S. W. 2d 44 (decided May 29, 1950). In the last mentioned case the failure to file the bond was held to be fatal to the appeal. Gibson v. Davis, 199 Ark. 456, 134 S. W. 2d 15, held that Act 183 of 1925 was not repealed by Act 169 of 1931.
The Legislature has plenary power to prescribe the time and manner of appealing from the County Board of Education to the Circuit Court; and by the quoted language above, the Legislature has prescribed that a bond shall be executed “within thirty-days from the date of the final order . . .” This provision might have been so worded by the Legislature in order that the County Board would have full notice that an appeal was actually to be prosecuted, or it might have been so worded for some other reason; but, at all events, the Statute clearly says that an appeal bond shall be filed after the County Board’s ruling. The bond filed by the appellant at the beginning of his contest does not meet the requirements of the Statute; so the Circuit Court was correct in dismissing the appeal.
Affirmed.
See Compiler’s Note following § 80-213 Ark. Stats.
See Jones v. Floyd, 129 Ark. 185, 195 S. W. 360, and also Horn v. School District, 213 Ark. 490, 211 S. W. 2d 107. | [
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Per Curiam.
Appellant’s petition for reconsideration for Rule on Clerk to lodge transcript is denied.
Holt, Purtle and Hays, JJ., dissent. | [
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Frank Holt, Justice.
Appellants, the widow and heirs of Buford Dearing, brought this declaratory judgment action based on their contention that the written provision in a deed created a life estate in Evia Lee Dear-ing with a remainder interest which vested in Buford Dearing at the time the deed was executed. The cause was submitted upon the complaint, the answer, a stipulation of facts, and a deposition together with the briefs of the parties. The chancellor denied appellants’ contention and dismissed the cause for want of equity; Appellants contend bn appeal that it was the intention of B. F. Dearing to convey to Evia Lee Dearing a life-estate in the 40 acres of land involved in this suit and a vested remainder in fee to Buford Dearing when he inserted a written provision in the deed;
'In 1937, B. F. Dearing, now■ deceased, executed a printed form warranty deed conveying the land in question to his daughter. The granting clause of the deed conveyed a fee simple title to her. It read: , , .
That I, B. F. Dearing, for and in consideration of One and 00/100 hereby Grant, Bargain, Sell and Convey unto the said Evia Lee Dearing and unto her heirs and assigns forever, the following lands ....
The description clause was followed by this provision which was handwritten by someone for the grantor:
This is my will, and the herein described land is to be conveyed to my son, Buford Dearing, at the death of Evia Lee Dearing.
The habendum clause warranted a fee simple title as to the grantee. The grantor, being unable to write, affixed his signature by his mark (x), which was witnessed by a Mrs. Horton.
Buford Dearing died intestate in August, 1968. In December, 1968, Evia Lee Dearing conveyed the property by warranty deed to appellees, Calvin and Vera Dearing.
We recognize that we give primary consideration to the intent of the grantor in interpreting written instruments. Aluminum Co. of America v. Lipke, 230 Ark. 72, 320 S.W. 2d 751 (1959), Carter Oil Co. v. Weil, 209 Ark. 653, 192 S.W. 2d 215 (1946), Wallace v. Wallace, 179 Ark. 30, 13 S.W. 2d 810 (1929). We also recognize that a preference is given to the written over the printed provisions of a deed when in conflict. Lawless v. Caddo River Lumber Co., 145 Ark. 132, 223 S.W. 395 (1920).
However, in the instant case, we need not necessarily venture into the realm of the grantor’s intent. The written provision in the deed purports to be a will. The writing obviously cannot function as a will since it is improperly witnessed. Graves v. Bowles, 193 Ark. 546, 101 S.W. 2d 176 (1937). The defective testamentary provision, which is ambiguous and not a clear limitation, should not be construed as part of the deed. The written provision is void since it is repugnant to the deed which clearly conveyed a fee simple title. The language is surplusage and merely a legallv ineffective wish. Therefore, Evia Lee’s fee simple title was unaltered by the written provision and consequently her conveyance to Calvin and Vera Dearing by warranty deed properly conveyed to them a fee simple title.
Affirmed. | [
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Hart, C. J.
This appeal is prosecuted to reverse a judgment overruling exceptions to the final account of the administrator with the will annexed of the estate of O. M. Ross, deceased.
It appears from the record that C. I. Farmer, a man with no known relatives, lived at Houston, Texas, where, from light work and soliciting alms, he accumulated about $4,500, which he left on deposit in various banks in that city under different names. Mrs. T. N. Souter, of that city, who was active in welfare work, befriended him. in the belief that he was a pauper. In gratitude for the favors conferred, on the first day of June, 1925, O. I. Farmer executed a will in which he left her his- entire estate. In 1927, he came to Arkansas and thereafter lived under the name of O. M. Ross. He drew about $2,500 of his money from the Houston banks and invested it in a small homestead of about ten acres about five miles south of the city of Little Rock. He was taken ill and died on the 22d day of April, 1928, at a hospital in the city of Little Rock:
Dr. T. M. Fly was called to attend him in his last illness, and had him removed to the hospital, where he later died. After the death of Ross, Dr. Fly became the administrator of his estate. It was subsequently ascertained that he had made a will in favor of Mrs. Souter; and, by agreement with her attorneys, the will was probated, and Dr. Fly became administrator with the will annexed of the estate of C. M. Eoss. During the course of the administration, E. E. 'Smith and Syble Smith filed a suit in the chancery court of Pulaski County against the administrator and Mrs. T. N. Souter to recover the estate on the ground that C. M. Eoss had made a contract with them to will them his entire estate in consideration of their care and support of him during his lifetime; that they had performed the contract on their part, and that Eoss died without making the will in their favor. The administrator, through his attorney, defended the suit; and, after it had been pending for some time, it was dismissed for failure of prosecution. Other facts will be stated under appropriate headings in passing on the exceptions to the account current of the administrator.
The first three exceptions relate to the claims of two trained nurses and of the hospital fees during the last illness of C. M. Eoss. We do not think these exceptions are well taken. Mrs. C. A. Eouth and Mrs. Beula Justice presented claims for respectively six and eig’hteen dollars. The claim of each was duly verified by her affidavit in which she stated that nothing had been paid or delivered towards the satisfaction of her demand, and that there was due her the amount claimed. It is contended that these claims should not be allowed because the account does not appear attached to the affidavit’. Under the testimony of the administrator, these parties performed, as trained nurses, services which, at the regular charges, amounted to their respective claims; that the administrator examined and allowed each of the claims, and that the account presented to him had somehow become detached from the affidavit. This amounted to a substantial compliance with the statute, and we think the court properly allowed the claims. Breckenridge v. Weber Dry Goods Co., 167 Ark. 429, 268 S. W. 593 ; and Rinehart v. Wheeler, 168 Ark. 251, 270 S. W. 537.
What we have said applies with respect to the hospital claim. The hospital claim was verified by the superintendent of the hospital, and the items charged were reasonable and according to the usual fees charged for similar services in the hospital. There is nothing whatever to indicate that any overcharges were made. Hence the court properly overruled the exceptions to this item of the account.
The next exception relates to the extra compensation claimed by the administrator in his account current. It appears that, after consultation with the judge of the probate court, Dr. Fly went to Houston, Texas, during the meeting of the Democratic National Convention for the purpose of attending that convention, and also ascertaining whether or not there was any additional money belonging to the estate of C. M. Boss in any of the banks in Houston which had not yet been ascertained. The account shows that the sum of $31.40 for traveling expenses and an additional amount of $37.43 for expenses. We think the court should not have allowed both of these sums. It does not make any difference that the administrator elected to go at the time the Democratic National Convention was in session if it was necessary for him to make the trip in the interest of the estate. He evidently made the trip in good faith because he did not do so until after obtaining the sanction of the probate court to do so. The court was justified in allowing him the expenses of the trip, but we are of the opinion that the amount allowed is too much. His railroad fare for the round trip amounted to $31.40, and he could have ascertained whether or not Boss had any money in any of the banks there in one day’s time. Therefore we are of the opinion that his claim of $37.43 was sufficient to cover the expenses of the trip. The item was to cover necessary expenses incurred by the administrator in endeavoring to locate additional assets of the estate and was made under the sanction of the probate court. Therefore it was not error for the court to allow it. Holland v. Doke, 135 Ark. 372, 205 S. W. 648.
The court, however, erred in allowing additional compensation to the administrator. Under our statute, the probate court may, in the exercise of a sound discretion, fix the compensation or the rate of commission allowed an administrator as provided by statute, but it cannot exceed the rates prescribed. Ex parte Bell, 14 Ark. 76; Reynolds v. Canal & Banking Co., 30 Ark. 520 ; Triplett v. Chipman, 153 Ark. 12, 240 S. W. 23 ; and Scroggins v. Osborn Co., 181 Ark. 424, 26 S. W. (2d) 95. The duties performed by tbe administrator in his trip to Houston were duties ordinarily incident to the administration of an estate, and, under no principle of law, could he be entitled to additional compensation as for unusual or extraordinary services performed by him. Therefore we are of the opinion that the court erred in allowing the additional compensation to the administrator.
The next exception relates to the attorney’s fees allowed. The account shows that the attorney for the administrator was first allowed $36.85" for services performed in administering the estate, and no complaint is made as to this item. It is insisted, however, that the court erred in making an additional allowance of $150 to the attorney for defending the suit brought by E. E. and Syble Smith against the administrator to obtain possession of the estate on the ground that C. M. Boss had made an agreement with them to make a will in their favor for their care and support of him during his lifetime, and that he had failed to do so. On this account, $150 was allowed to the attorney. We think under the evidence that this amount was excessive. There was a conflict in the testimony as to the amount which should be allowed, running from $50 to $150. We have examined the record as to the services performed by the attorney, and we think that a compensation of $100 was entirely ample. He took no active part in the prosecution of the case except to' argue a demurrer to the complaint which was overruled; and the case was finally dismissed for want of prosecution. The administrator with the will annexed had the authority to employ an attorney to defend the will, and he is entitled to have an allowance made to his attorney to be paid out of the estate for services in upholding* the will. There is nothing* whatever in the record to show that he did not in good faith employ the attorney to defend the suit, and we hold that a reasonable fee is a proper charge against the estate. McIntire v. McIntire, 192 U. S. 116, 21 S. Ct. 196, and numerous other cases cited in the note to 10 A. L. R. at page 784.
The next exception relates to still another allowance to the attorney of the administrator for the sum of $100 to defend the exceptions to the account current. We have examined the record relating to this matter; and, as we have already seen, there was no reasonable excuse for any litigation of an extended character relating to exceptions to the account current. It is well settled in this State that when the account of an administrator is wrongfully assailed in the courts, it is just to allow attorney’s fees necessarily incurred in defense thereof, but not for fees paid attorneys in resisting proper charges against himself and one 'brought to compel him to perform his legal duty when he is in fault. Jacoway v. Hall, 67 Ark. 340, 55 S. W. 12 ; and Triplett v. Chipman, 153 Ark. 12, 240 S. W. 23. We are of the opinion that, in addition to the sum of $36.85, attorney’s fees for $100 additional would be ample compensation for all the legal services rendered in the case. We mean this to include the Smith suit as well as the defense to the exceptions to the account current.
Finally, it is insisted that the exceptions to the account current cannot be sustained because the administrator obtained an order of the probate court in advance allowing him additional compensation and attorney’s fees. This he could not do. The object of the account current was to settle the account of the administrator, and the probate court could then disallow credits for illegal expenditures, although the administrator had ob tained an order of the court in advance for them. Burke v. Coolidge, 35 Ark. 180, and Boyd v. Duncan, 178 Ark. 772, 12 S. W. (2d) 395.
Therefore the judgment -will be reversed, and the cause will be remanded to the circuit court with directions to sustain the exceptions to the account of the administrator as indicated in this opinion, and to certify the judgment of the circuit court down to the probate court for its guidance, and for further proceedings according to law. It is so ordered. | [
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Jack Holt, Jr., Chief Justice.
Appellant Benny Cooper was charged with attempted capital murder, possession of methamphetamine with intent to deliver, possession of marijuana with intent to deliver, possession of drug paraphernalia, and felon in possession of a firearm. Before trial, Cooper filed a motion to suppress evidence seized from his vehicle contending that his detention by the investigating officer was unlawful and that the warrantless search of the vehicle violated his fourth amendment rights. At a hearing on the motion, the trial court determined that the evidence was admissible. Cooper was subsequently convicted by a jury on all charges and sentenced as an habitual offender. Finding no error, we affirm.
At approximately 10:30 p.m. on April 7, 1987, Detective Clay Thomas of the Fort Smith Police Department noticed a 1969 Oldsmobile travelling northbound on Towson Avenue in Fort Smith bearing what appeared to be out-of-state handwritten paper car tags. Thomas could not determine the expiration date of the tags nor could he determine where they had been issued. Thomas further considered the presence of temporary tags suspect as the car was an older model vehicle. Thomas followed the car and at one point pulled along side the vehicle. The driver looked directly at Thomas and shortly thereafter made a sudden left-hand turn without giving a signal.
Thomas managed to intercept the Oldsmobile several streets later at which time he turned on his blue lights and spot light and flashed his headlights in an effort to stop the vehicle. The driver of the Oldsmobile crossed several streets and then parked in a dark area on a side street. Detective Thomas placed his unit behind the car and ordered the driver to exit the vehicle. The driver produced an Oklahoma ticket (unsafe vehicle) in lieu of a driver’s license and identified himself as Benny Cooper.
Thomas testified that he recognized Cooper’s name in connection with several recent arrest reports indicating that Cooper was a local drug dealer with prior convictions who was often armed. Thomas also suspected at this time that a bulge in Cooper’s left hip pocket indicated the presence of a small handgun. Thomas returned to his vehicle to check for outstanding warrants and told Cooper to remain at the rear of the Oldsmobile. The warrant check was negative but another officer advised Thomas over the radio that Cooper was a known drug dealer, might be carrying drugs, and would be armed. At this time, Thomas noticed that Cooper had reentered his vehicle.
Thomas again ordered Cooper to exit the Oldsmobile. As he approached Cooper he talked with him for a moment and then asked Cooper if he was carrying a gun. Cooper replied in the negative and raised his jacket as proof. Thomas, still wary of the bulge in Cooper’s left hip pocket, knew that Cooper had been arrested only two weeks earlier and had been carrying a .38 caliber handgun in his left hip pocket. As a matter of caution, Thomas asked Cooper to place his hands on the car so that he could conduct a limited protective search or “pat down” of Cooper’s person.
Thomas testified that Cooper spun around and away from him, removed a gun for his left hip pocket, then pulled the trigger. The gun apparently malfunctioned. Thomas threw his flashlight at Cooper and ducked behind the Oldsmobile. He testified that Cooper then reached over the top of the vehicle and again tried to shoot him. Thomas drew his weapon, at which point Cooper either dropped his gun or threw it at Thomas and fled on foot. Cooper was apprehended by other officers about an hour later. During that time, Cooper’s handgun was recovered and Thomas conducted a search of the Oldsmobile to check its contents since he considered it abandoned and knew it would be impounded.
In reviewing a trial judge’s ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances and reverse only if the ruling was clearly against the preponderance of the evidence. Campbell v. State, 294 Ark. 639, 746 S.W.2d 37 (1988).
The fourth amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. ...” That protection extends to persons driving down the street. Generally, searches of such persons or their vehicles conducted without a warrant are considered unreasonable. However, it has been held that consistent with the fourth amendment the police may stop persons on the street or in their vehicles in the absence of either a warrant or probable cause under limited circumstances. Terry v. Ohio, 392 U.S. 1 (1968); United States v. Hensley, 469 U.S. 221 (1985). One of those limited circumstances involves investigatory stops such as the one presented by the facts in the case before us.
There is no serious argument as to the validity of the initial stop by Detective Thomas. The presence of the paper car tags and the fact that it was impossible to verify the state of issuance or the expiration date of the tags, combined with the age of the vehicle and the obviously evasive actions of the driver, gave Thomas sufficient cause to stop the vehicle. Rule 3.1 of the Arkansas Rules of Criminal Procedure in relevant part provides:
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct.
In determining whether the officer’s suspicion was reasonable, A.R.Cr.P. Rule 2.1 provides the following definition:
“Reasonable suspicion” means a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.
Here, Detective Thomas clearly had specific, particularized, and articulable reasons warranting his stop of the Oldsmobile to determine whether, as provided in Rule 3.1, the vehicle had been stolen. See Hill v. State, 275 Ark. 71, 628 S.W.2d 285, cert. denied, 459 U.S. 882 (1982).
However, our inquiry does not end with a finding that the investigatory stop was proper. The issue now becomes whether Detective Thomas could justifiably conduct a limited search of Cooper’s person and, ultimately, whether there was any legal justification for the subsequent warrantless search of the car.
In Terry v. Ohio, 392 U.S. 1 (1968), the United States Supreme Court upheld the validity of an officer’s investigatory “stop and frisk” because the officer feared that suspects he thought were about to engage in criminal activity were armed. The Court stated:
We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. Id. at 23.
A.R.Cr.P. Rule 3.4 reflects the considerations expressed in Terry and provides:
If a law enforcement officer who has detained a person under Rule 3.1 reasonably suspects that the person is armed and presently dangerous to the officer or others, the officer or someone designated by him may search the outer clothing of such person and the immediate surroundings for, and seize, any weapon or other dangerous thing which may be used against the officer or others. In no event shall this search be more extensive than is reasonably necessary to ensure the safety of the officer or others.
Detective Thomas had observed a bulge in Cooper’s left hip pocket which suggested the presence of a handgun. He also knew that Cooper was by reputation a drug dealer who was often armed, had prior convictions, and had only recently been arrested while carrying a handgun in his left hip pocket. When these facts are coupled with the warning received over the police radio that Cooper would probably be armed, and the fact that Cooper had reentered his vehicle contrary to directions from Thomas, it is obvious that Thomas was involved in a potentially dangerous situation. Under the circumstances, a limited search or “pat down” of Cooper’s person as permitted under Rule 3.4 was clearly warranted. In sum, we find Cooper’s argument that an unlawful seizure had taken place at this point which tainted the subsequent search of the vehicle to be completely unfounded.
We need now determine only the lawfulness of the search of the Oldsmobile from which evidence was seized which formed the basis for the drug related charges against Cooper. The attempt by Detective Thomas to conduct a limited protective search of Cooper’s person was frustrated when Cooper spun away from the officer, pulled a gun, twice tried to shoot the officer, either threw his gun at the officer or dropped it, and then fled. In considering these circumstances and in denying Cooper’s motion to suppress, the trial court ruled in part that Cooper had effectively abandoned his vehicle when he fled. Within the context of constitutional search and seizure analysis, we agree that upon fleeing the scene Cooper abandoned whatever expectation of privacy he might have had in the Oldsmobile or its contents.
The following language from Thom v. State, 248 Ark. 180, 450 S.W.2d 550 (1970), is particularly useful:
We find no merit in appellant’s contention that the trial court should have suppressed evidence obtained from the search of the automobile. ... If appellant in his endeavors to avoid the clutches of the law had discarded his overcoat to make his flight more speedy, no one would think that an officer was unreasonably invading his privacy or security in picking up the overcoat and searching it thoroughly. In that situation most people would agree that the fleeing suspect had abandoned his coat as a matter of expediency as well as any rights relative to its search and seizure. What difference can there be when a fleeing burglar abandons his automobile to escape the clutches of the law? We can see no distinction and consequently hold that when property is abandoned officers in making a search thereof do not violate any rights or security of a citizen guaranteed under the Fourth Amendment.
While we recognize that some distinction may be drawn between the minimal expectation of privacy in an overcoat which has been discarded on a public street and automobiles which are regularly left parked on public streets without any expectation that they, will be subject to official searches, we consider the abandonment theory set forth in Thom to be sound as it applies to cases involving suspects who, like Cooper, flee from the scene of a crime leaving behind an unlocked vehicle. This approach has been cited with approval in several jurisdictions. See 1 W. LaFave, Search and Seizure § 2.5(a) (1987). See also Annot., 40 A.L.R.4th 381, at §§ 10 and 11 (1985), and cases discussed therein.
At the hearing on the motion to suppress, Cooper gave an entirely different version of the events surrounding the gun and the confrontation with Detective Thomas. However, we have repeatedly held that any conflict in the testimony of the witnesses is for the trial court to resolve. Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988).
In light of the foregoing, we cannot say that based upon the totality of the circumstances the denial of Cooper’s motion to suppress was clearly against the preponderance of the evidence. Accordingly, it was not error to admit the items discovered in the vehicle.
Affirmed.
Hickman, J., concurs. | [
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Minor W. Millwee, Justice.
This is a suit to recover disability benefits on two policies of health and accident insurance issued to appellee by appellant, Bankers National Insurance Company, a foreign insurance corporation unauthorized to do business in this state. Service of summons was obtained under the provisions of Ark. Stats., § 66-244.
The complaint alleged, and appellant admitted at the trial, that appellee was accidentally injured on July 7, 1948, while riding as a fare paying passenger on a bus of the Baum Bus Line at Okolona, Arkansas. As a result of the accident, appellee sustained a bilateral hernia and other injuries rendering him totally disabled for a considerable length of time.
Following a trial the court found that appellee was totally disabled within the meaning of the policies for more than twenty-six weeks as a result of the accident and judgment was.rendered against appellant for $993.70 plus the statutory penalty of 12°/o and attorney’s fee.
Appellant first filed a “special demurrer” to the jurisdiction of the court alleging that it had not transacted business in this state. The record proper fails to disclose any action on the demurrer. There is a page of docket entries attached to, but not made a part of, the transcript. One of these entries shows that the special demurrer was overruled without exceptions being saved to such ruling. Docket notations cannot be used to supply a deficiency in the record. City of Monticello v. Kimbro, 206 Ark. 503, 171 S. W. 2d 152. Appellant then filed an answer denying generally the allegations of the complaint.
The insuring clause of both policies insures appellee, “against (1) death, dismemberment, loss of sight or time, dislocations and fractures resulting within thirty days from the date of accident, directly and independently of all other causes, through external, violent and accidental causes, herein referred to as‘such injury,’ . . . subject, however, to all the terms, provisions and limitations herein contained.”
■Other provisions of the first policy No. HA-20860 material to the issues read: “Part A. The Company will pay the respective following amounts, providing such specific loss occurs as described hereunder in Part A and also as described in the ‘Insuring Clause’:
Loss of Life.$1,000.00
Loss of Both Feet. 1,000.00
Loss,of Both Hands. 1,000.00
Loss of Both Eyes. 1,000.00
Loss of One Arm and One Leg. 1,000.00
Loss of One Arm and the Sight of One Eye . 1,000.00
Loss of One Leg and the Sight of One Eye . 1,000.00
Loss of One Arm. 500.00
Loss of One Leg. 500.00
Loss of One Foot. 500.00
Loss of One Hand. 500.00
Loss of One Eye. 500.00
1. If such injury is sustained while the Insured is a passenger on any railroad passenger train on which the Insured is traveling as a fare-paying passenger in a place provided exclusively for the use of passengers.
2. If such injury is sustained while the Insured is a passenger on any steamship in or on which the Insured is traveling as a fare-paying passenger in or on a place provided exclusively for the use of passengers.
3. If such injury is sustained while the Insured is a passenger on any street railway passenger car, elevated or subway passenger car, then in passenger service in which the Insured is traveling as a fare-paying passenger in a place provided exclusively for the use of passengers. . . .
“Part D ALL OTHER ACCIDENTS. ... 2. If the Insured shall in consequence of such injury caused by any accident not otherwise covered by this policy, and not otherwise excluded under any provision, be immediately, wholly and continuously disabled by such injury from attending to any and every kind of work or business, the Company will pay indemnity at the rate of Five ($5.00) Hollars per week the first two weeks and at the rate of Seven ($7.00) Dollars per week beginning with the fifteenth day of such disability but not to exceed a combined total of ten consecutive weeks. . . .
“Part E If the Insured shall be immediately, wholly and continuously disabled due to such injury under the conditions as set forth in Part A, not incurring any of the specific losses or any of the dislocations or fractures set forth in Part C and be prevented by such injury from performing any and every duty pertaining to any occupation, the Company will pay in lieu of all other indemnity under this policy at the rate of Twenty ($20.00) Dollars per week, not exceeding twenty-six con secutive weeks.” Another provision of the policy contained an exception excluding liability for death or disability resulting from hernia. •
The second policy, No. HA-30714, contains the same provisions as above recited with two exceptions: (1) Payments under Part D 2 are at the rate of $10.00 per week for the first two weeks and $15.00 per week for the next thirteen weeks; and (2) Benefits under Part E are at the rate of $30.00 per week.
There is no merit in appellant’s contention that recovery should be denied because appellee was the holder of policies with three other companies at the time of the accident. Appellant was informed of such insurance in appellee’s application for the two policies here involved, which provide that the insurance therein shall not be affected by any other insurance held with any other company.
Appellant also relies on the fact that appellee became disabled as a result of hernia produced by the accident. A subordinate provision of the policy excludes liability for death or disability resulting from hernia and numerous other enumerated diseases, ailments and conditions. Appellant’s answer to the complaint contained a general denial and the exception clause as to hernia was not pleaded as an affirmative defense. Justice Knox, speaking for the court on this point in Southern National Ins. Co. v. Pillow, 206 Ark. 769, 177 S. W. 2d 763, said: “As a general rule limitation of liability and loss from an excepted cause are matters which must be specifically pleaded by the insurer as an affirmative defense, if he would limit or defeat recovery because of such provision of the policy. 29 Am. Jur. 1069; Mechanics’ Ins. Co. v. C. A. Hoover Distilling Co., (O.C.A. 8th) 182 F. 590, 31 L. R. A., N. S., 873. This court in the case of Missouri State Life Ins. Co. v. Barron, 186 Ark. 46, 52 S. W. 2d 733, applied this rule and held that failure of the insurer to plead that a contributing cause of death fell within the provisions of the policy exempting insurer from liability therefor, constituted a waiver of such exception as a defense. So here failure of appellant to plead that its liability was limited to a return of the premium paid because insured’s death resulted directly or indirectly from pneumonia, amounted to a waiver of such defense. ’ ’ Bee, also, 46 0. J. S., Insurance, § 1295. Appellant’s failure to plead the exception as to hernia as an affirmative defense amounted to a waiver of such defense. It is, therefore, unnecessary to determine whether appellant would be relieved of liability even if the clause had been properly pleaded. See Appleman, Insurance Law and Practice, § 443.
The trial court held appellant liable under Part E which provides benefits for disability clue to injury under the conditions set' forth in Part A, that is, if the accidental injury is sustained while insured is a passenger on one of the modes of conveyance specified. It is undisputed that appellee’s injury occurred while traveling on a motor bus and not on one of the types of conveyance designated in Part A. A policy which provides indemnity for accidents occurring while insured is traveling as a passenger in a certain type conveyance includes only accidents received while traveling in the kind of conveyance designated. Rhodes v. U. S. Casualty Co., 172 Ark. 344, 288 S. W. 883; 45 C. J. S., Insurance, § 762.
It is true that prior to institution of this suit appellant rejected appellee’s claim of disability on the exclusive ground that hernia was an excepted risk, and this exception clause was not specifically pleaded. If Part A, when considered in connection with Part E, merely dealt with a ground of forfeiture, appellant might be held to have waived such forfeiture under the rule that where an insurer denies liability for a loss on one ground, at the time having knowledge of another ground of forfeiture, it cannot thereafter insist on such other ground if the insured has acted on its asserted position and incurred prejudice or expense by bringing suit, or otherwise. 29 Am. Jur., Insurance, § 871. But Part A, as related to Part E, sets forth the scope or coverage of the policy and not merely a condition, the breach of which may be a ground of forfeiture. The rule is that, while a forfeiture of benefits contracted for may be waived, the doctrine of waiver or estoppel cannot be invoked to ex tend the coverage and thereby bring into existence a contract not made by the parties. Miller v. Ill. Bankers Life Ass’n, 138 Ark. 442, 212 S. W. 310; Hartford Fire Ins. Co. v. Smith, 200 Ark. 508, 39 S. W. 2d 411; 45 C. J. S. Insurance, § 674 a. Cases pointing out this well recognized distinction are collected in an annotation in 113 A. L. R. 857. We, therefore, conclude that appellee was not entitled to disability benefits under Part E of the policies.
However, we do hold that appellee is entitled to indemnity under Part D 2, s-upra. This clause is boldly headed: “ALL OTHER ACCIDENTS.” The language of the clause is somewhat ambiguous and is, .therefore, to be given a liberal construction in favor of the insured. Since appellant is precluded from relying on the exception as to hernia, appellee’s injury and disability were caused by an “accident not otherwise covered” by the policies. While there is some dispute as to the length of time of appellee’s disability, the greater weight of the evidence supports the conclusion that he was totally disabled within the meaning of the .policies for at least 15 weeks. Under this clause appellee is entitled to judgment for $281 less a 25 % reduction on account of his age as provided in another clause which appellee conceded at the trial to be applicable.
The decree is accordingly modified by reducing the judgment in appellee’s favor to $210.75. As so modified, the decree is affirmed. The costs in this court will be divided equally between the parties. | [
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John I. Purtle, Justice.
The chancellor issued a mandatory injunction which required appellant to assemble his cattle for the purpose of testing for brucellosis by the Arkansas State Livestock and Poultry Commission. The injunction was stayed pending this appeal.
On appeal appellant contends the statutes and regulations involved herein are unconstitutional inasmuch as they deny him due process and equal protection of the law. We hold that the statutes and regulations do not deny appellant due process or equal protection either on their face or as applied in the case now before us.
The facts of this case disclose that the Arkansas Livestock and Poultry Commission determined that some cattle in Franklin County had contracted brucellosis. Therefore, the commission declared Franklin County to be an area test county. Pursuant to that order appellant was ordered to assemble his cattle for testing on a specific date. He refused to assemble his two herds claiming that the commission was acting in an unconstitutional manner. Appellant’s herds are the only ones in the county which have not been inspected.
The appellant argues the statutes and regulations are violative of due process by failing to provide for a hearing on the matter of declaring a county to be a test area and in that the decision to test lies solely with the commission. One result of a positive test is that the animal is branded and ordered disposed of immediately. Diseased animals are usually sold at nearby auction barns. Such cattle are safe for human consumption. The owner receives the sale price and also is paid a certain sum by the United States Department of Agriculture. It is urged that a minimum requirement of due process requires reasonable notice and an opportunity to be heard. We agree with this argument. Public hearings were held on the statutes prior to their enactment and implementation. Admittedly, no notice was given nor were local hearings held in Franklin County before the commission employees commenced testing cattle.
Ark. Stat. Ann. § 78-434 (Repl. 1981) provides:
(a) Whenever the Livestock Sanitary Board [Arkansas Livestock and Poultry Commission] shall declare a county in this State to be a Brucellosis control area, the Board [Commission] shall proceed to conduct such tests and enforce such reasonable rules and regulations as may be necessary to qualify said county for certification or re-certification as a Modified Certified Brucellosis free county as outlined in the uniform rules and regulations of the United States Department of Agriculture. A county may be certified as a Brucellosis free area when not more than one per cent (1%) of cattle and not more than five per cent (5%) of cattle herds are positive to the official agglutination test.
(b) Whenever seventy-five per cent (75%) or more of the counties of this State have been certified by the Livestock Sanitary Board [Arkansas Livestock and Poultry Commission] as Brucellosis free areas, all other counties not so certified shall automatically become Brucellosis control areas.
Ark. Stat. Ann. § 78-435 (Repl. 1981) states:
In order to carry into effect the provisions of this act [§§ 78-433 — 78-435], the Livestock Sanitary Board [Arkansas Livestock and Poultry Commission] may make such rules and regulations and require such reports and records as may be necessary.
We have upheld the testing of cattle by the state in the case of State, Ex Rel. Hale, Prosecuting Attorney v. Lawson, 212 Ark. 233, 205 S.W.2d 204 (1947). The language in Lawson dealt with what was then called “Bangs disease” which is now referred to as brucellosis. Whichever name is applied is of no moment as cattle sometimes transmit the disease to humans in a form known as undulant fever. Certainly, as we held in Lawson, the state may exercise its powers to safeguard the health, safety and welfare of its citizens. There we stated:
We find and hold that the regulation that reactors be segregated and be so branded as to indicate that they were found to be reactors is not an unreasonable or arbitrary rule.
Upon the whole case we conclude that the regulations of the State Board of Health are reasonable and a valid exercise of the state’s police power, and that a proper method to enforce them is to prevent the sale of milk produced in their violation.
If any individual owner is to be allowed the right to refuse to allow his cattle to be inspected and/or vaccinated then our laws and regulations may as well never have been enacted. The only manner by which the disease may be eradicated is by such enactments.
The Texas Court of Appeals considered the same question in the case of Nunley v. Texas Animal Health Commission, 471 S.W.2d 144 (Tex. Civ. App. 1971). The owner in Nunley argued that the Texas brucellosis program (very similar to the Arkansas program) amounted to a taking of property without just compensation. He had been ordered to pen his cattle for testing and if any were found to have the disease they must be sold for slaughter or otherwise destroyed within 15 days. Nunley argued the cost of penning the cattle and the danger of injury were property rights which would not be compensated for under the plan. In holding the Texas statutes and regulations valid the court stated:
It is well settled that neither a natural person nor a corporation can claim damages on account of being compelled to render obedience to a police regulation designed to secure the common welfare [citing] Chicago, B. & O. R. Co. v. Chicago, 166 U.S. 226 (1897).
The Texas Court of Appeals further stated:
If the brucellosis control program is otherwise valid as an exercise of the police power, the fact that it deprives the property of its most beneficial use does not render it unconstitutional.
When the health and welfare of the public is involved, individual rights must yield to the superior rights of the public, even if it means the reduction in value of property. Hadacheck v. Sebastian, 239 U.S. 394 (1915). If any of appellant’s cattle are found diseased, he will receive the regular slaughter price plus a scheduled amount from the Department of Agriculture. There does not appear to have been a taking of property other than the cost of rounding up the herds and possible injury of some cattle. Employees of the commission have offered to assist in herding and separating the cattle. Even if there is a reduction in value caused by the taking of property pursuant to the exercise of valid police powers, there is no absolute right to indemnity for such reduction in value. Hadacheck v. Sebastian, supra.
The appellant argues he has not been afforded equal protection of the laws. Apparently this argument is bottomed on the indemnity schedule established by the United States Department of Agriculture pursuant to 21 U.S.G.A. 114 (a). The schedule provides for payment to the owner for cattle he has disposed of because of brucellosis as follows: $50 per head for non-registered beef cattle; $250 for registered cattle; $150 for non-registered dairy cows; and $25 for heifer calves nursing reactor cows.
There is no disagreement that all citizens are to be treated equally but there is nowhere any guarantee that all people will be equally situated in place and property. We also agree that the state cannot create different classifications on the basis of criteria wholly unrelated to the purpose for which the classification is established. The classification must not be arbitrary and must have a fair and substantial relationship to the purposes requiring such classification. We were presented the question of equal protection in the case of Corbitt v. Mohawk Rubber Co., 256 Ark. 932, 511 S.W.2d 184 (1974), and we quoted with approval from another case that a classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike. Thus treating all beef cattle owners alike is valid even though they are not treated the same as all dairy cattle owners. Dairy and beef herds are clearly kept for different purposes. This distinction is properly within the bounds of the equal protection provisions of the United States and Arkansas Constitutions.
The purpose of the rules and regulations here under consideration is to prevent and eradicate, if possible, the disease of brucellosis in cattle and thereby prevent the contagious disease of undulant fever in people. There could hardly be a more suitable case for exercise of the state’s police powers. Therefore, the remaining question to be resolved is whether the classification meets the above-stated test. We think it clearly meets the criteria necessary to prevent unequal protection of the laws. All cattle in Franklin County are included in the order for testing. There is no way in which the classification could be made more broad. The objection relating to the price the agriculture department pays for infected animals is almost as broad inasmuch as all cattle owners in the test area are treated exactly alike. Appellant has not shown he will incur any loss at all, but in any event he has clearly not demonstrated that his classification is different or more burdensome than that of any other cattle owner in the test area.
We hold that the statutes and the regulations considered herein are constitutional as applied to the facts of this case. Therefore, appellant is bound under the law to assemble his cattle for testing as directed. | [
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Steele Hays, Justice.
This appeal arises over the subrogation rights of an insurance company against a third party tort-feasor who was brought into an action between the insurance company and its insured. Farm Bureau insured a 1979 Cadillac belonging to Riverside Marine Remanufacturing Company, Inc., against loss by collision. The car was damaged in a collision with Ms. Rukmini Patel and when Riverside and Farm Bureau were unable to agree on the amount of the damage, Riverside sued Farm Bureau, which brought in Patel as a third party defendant, asking for judgment over against her for any amounts it might be required to pay Riverside under the policy. At the conclusion of Riverside’s case, and over its objection, the trial court permitted Farm Bureau to confess judgment for $4,084.52. At the same time, Farm Bureau moved that it be granted a judgment of $4,084.52 on its third party complaint from any damages awarded by the jury against Patel, which the trial judge indicated in conference he would grant. The motion, however, was never ruled on. Patel admitted liability and the jury assessed damages against her in the amount of $6,000.00. The trial judge then entered judgment in favor of Riverside for $6,000.00 against Patel and also entered judgment for Riverside against Farm Bureau for the amount confessed, i.e. $4,084.52 plus the vandalism loss.
Subsequently, the Farm Bureau moved to amend the judgment to allow it to recover its subrogation claim of $4,084.52, but that motion was denied. Patel has deposited the $6,000.00 into the registry of the court pending the outcome of this appeal by Farm Bureau, which asks that we reverse the trial court’s refusal to permit recovery under its subrogation rights. There is no cross appeal. We agree that Farm Bureau is entitled to recover $4,084.52 from the amount paid by Patel and, accordingly, we reverse the trial court.
It is the general rule that an automobile insurer who has paid a claim under its policy caused by the negligence of a third person is entitled to be reimbursed by the insured from any recovery against the third party. See 7A Am. Jur. 2d, Automobile Insurance § 441. This same right of subrogation is well recognized in Arkansas. See Home Insurance Co. v. Lack, 196 Ark. 888, 120 S.W.2d 355 (1938), and see generally Shipley v. Northwestern Mutual, 244 Ark. 1159, 428 S.W.2d 268 (1968). The underlying principle of subrogation rights is to avoid double recovery. As we stated in Shipley. “[T]he object of subrogation is to prevent the insured from recovering twice for one harm as would be the case if he could recover from both the insurer and from the third person who caused the harm...” Here, Riverside claimed compensation under the policy for damages to its car, and amended its complaint to request compensation of $5,000.00 for loss of use. Under the facts it is arguable that Riverside received damages to its property from the insurer, Farm Bureau, and that the damges from Patel were exclusively for loss of use, which loss was not covered by the policy. But the court’s instructions to the jury told them to consider the fair market value of the Cadillac immediately before and after the collision, as well as loss of use, in fixing the damages. Moreover, the trial judge in his memorandum opinion does not base his decision on this point, nor does Riverside raise this argument, but instead bases its contention on two technical arguments which we discuss further on.
Another important element in our consideration is our recent adoption of the Arkansas Rules of Civil Procedure, under which Rule 14 — Third Party Practice — was liberalized to allow a defendant to bring in a person not a party to the action who “is or may be liable to him for all or part of the plaintiff’s claim against him.” The Reporter’s Notes to Rule 14 state that the purpose of Rule 14 as construed by the federal courts is to facilitate the trial of multiple claims which would otherwise be triable only in separate proceedings. We stated our agreement with that purpose in Aclin Ford Co. v. Fiat Motors of North America, 275 Ark. 445, 651 S.W.2d 283 (1982): “Generally the purpose of this rule is to settle all controversies at one time, thereby avoiding a multiplicity of suits.” In Home Insurance Company v. Moro, Inc., 253 Ark. 305, 485 S.W.2d 736 (1972), we recognized the liberal effect of Rule 14 in a decision reached before our adoption of the Arkansas Rules of Civil Procedure.
On the facts of this case and applying the basic principles discussed above, we can find no reason for the court below not to have granted Farm Bureau’s motion for judgment on its third party complaint, and no reason to deny its motion to amend the judgment. In a memorandum opinion the trial judge stated that if he were to allow the judgment to be amended for judgment over against Patel by Farm Bureau, it would also be necessary that the pleadings be amended after the trial and after the judgment had been entered. But we think the pleadings, though inaptly drawn, sufficiently apprised the opposing parties that Farm Bureau was seeking subrogation. Certainly, no one claimed to have been surprised or misled by the pleadings of Farm Bureau. See Bates v. Simmons, 259 Ark. 657, 536 S.W.2d 292 (1976). Because the motion had been made prior to judgment and was not ruled on, the appellee had no recourse but to make a motion after judgment. Farm Bureau had brought in the third party Patel, under Rule 14, and under the subrogation principles discussed above, Farm Bureau’s motion should have been granted. To do otherwise not only ignores the basic principle of subrogation, but undermines the purpose of Rule 14 to promote judicial economy and avoid multiplicity of suits.
Riverside makes two arguments that we are unable to sustain. It first argues that Farm Bureau in its pleadings sought no relief against appellee. But Farm Bureau under this fact situation has no need to seek relief from the insured because under the normal course of things, it is expecting reimbursement from the tort-feasor. To suggest that Farm Bureau should include an action against appellee in its pleadings, would require it to anticipate such an error by the court as was made here.
Riverside also contends that under Ark. Stat. Ann. § 29-303 (Repl. 1979), there is no appeal from a confession of judgment and all errors are waived. After Farm Bureau’s confession of judgment, it was dismissed from the case in regard to its claim against appellee, but the confessed judgment did not dismiss Farm Bureau from its rights of subrogation against the third party, Patel. Of course Farm Bureau is estopped from denying the correctness of the confessed judgment, but that clearly does not preclude it from pursuing other claims in an action with multiple parties to which it is entitled, and to which no confession of judgment has been made.
We find the judgment to be in error and we remand the case for the entry of a judgment consistent with this opinion.
Adkisson, C.J., and Purtle, J., dissent.
An additional amount of $1,297.98 for a vandalism loss was also confessed but is not an issue.
An exception to this rule exists when the insured’s claim against the tort-feasor is not co-extensive with his claim against the insurer. | [
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David Newbern, Justice.
The appellants, Sonya and Daniel Chunn, are the biological children of the appellee, Daniel D’Agostino. D’Agostino and their mother were divorced by a decree of November 15, 1973, which awarded custody to the mother and required D’Agostino to pay $250 per month child support. The son, Daniel, was four years old, and Sonya, the daughter, was two. Thereafter, their mother married John Fred Chunn who, by decree of July 16, 1981, adopted Daniel and Sonya, and the parent-child relationship between Sonya and Daniel and D’Agostino was severed.
On September 17, 1991, within five years after Daniel and Sonya had each reached age 18, they sued D’Agostino to recover unpaid child support accrued prior to the date of their adoption. We hold that Sonya and Daniel Chunn’s claim is barred by the statute of limitations which was in effect at the time the child support arrearages accumulated and for a time thereafter, and thus we affirm the Chancellor’s decision to dismiss their claim.
At the trial, D’Agostino argued only that Ark. Code Ann. § 9-9-215(a)(1) (Repl. 1991), the adoption law, eliminated the children’s claim for support by its provision that adoption makes the natural parent whose parental ties are severed a “stranger” to the adopted child.
The Chancellor granted the dismissal, but not on the basis argued. In colloquy with counsel, the Chancellor stated that the 1981 adoption decree cut off any child support obligation accruing after the decree. The Chancellor stated further that the child support obligation could not be pursued with respect to any payments owed prior to 1984 because a five-year statute of limitations was in effect until 1989 when it was increased to 10 years, and Sullivan v. Edens, 304 Ark. 133, 801 S.W.2d 32 (1990), held that the revision could not increase the limitations period for a support claim already barred.
It is thus clear that the Chancellor did not consider the claim of Daniel and Sonya for support owed for a period prior to their adoption to be barred by the adoption. Rather, he applied the five-year statute of limitations which would have barred a claim brought by Daniel’s and Sonya’s mother if it had been filed in 1991 as was this suit. The question we must answer is whether the statute which would have barred the claim of the children’s mother also stands as a bar to the children’s claim.
In Johnson v. Lilly, 308 Ark. 201, 823 S.W.2d 883 (1992), we recognized that, according to the United States Supreme Court, there is no constitutional impediment, except in title to property cases, to increasing the length of a limitation period and making the increase retroactive to cover claims already in existence. We noted, however, that the law of this State and many others is that the General Assembly may not expand a limitation period so as to revive a claim already barred.
In the Johnson case we recited the recent history of the statute of limitations applicable to child support claims as follows:
Prior to 1989, the statute of limitation for child support arrearages was five (5) years. Ark. Code Ann. § 16-56-115 (1987). In 1989, the General Assembly changed the limitation to ten (10) years. Ark. Code Ann. § 9-14-236 (Repl. 1991). We held the 1989 amendment did not apply retroactively. Sullivan v. Edens, 304 Ark. 133, 801 S.W.2d 32 (1990). The General Assembly wanted to further enlarge this statute of limitation, so it passed Act 870 of 1991, which amends Ark. Code Ann. §§ 9-14-105 & 9-14-236, and provides child support actions can be “brought at any time up to and including five (5) years beyond the date the child for whose benefit the initial support order was entered reaches the age of eighteen (18) years.” The 1991 act also provides that the enlarged limitation “shall retroactively apply to all child support orders now existing.”
Our ultimate holding in the Johnson case was that the mother could not have the benefit of the new statute of limitations with respect to a claim for child support arrearages which were already barred when the new statute of limitations came into effect.
As noted above, this case is a little bit different from the Johnson case and from the Sullivan case because it is the children, and not the custodial parent, who pursue the claim. Prior to 1989, there was no statutory authority for the children to pursue the claim. Act 383, §1, of 1989 listed as persons who could bring the claim, “Any person eighteen (18) or above to whom support was owed during his minority.” Here is how the statute, codified as Ark. Code Ann. § 9-14-105, which deals with the support obligation read after the 1989 Act:
(a) The chancery courts in the several counties in this state shall have exclusive jurisdiction in all civil cases and matters relating to the support of a minor child or support owed to a person eighteen (18) or older which accrued during that person’s minority.
(b) The following may file a petition to require the noncustodial parent or parents of a minor child to provide support for the minor child:
(1) Any parent having physical custody of a minor child;
(2) Any other person or agency to whom custody of a minor child has been given or relinquished;
(3) A minor child by and through his guardian or next-of-friend; or
(4) The Department of Human Services when the parent or person to whom custody has been relinquished or awarded is receiving assistance in the form of Aid to Families with Dependent Children or has contracted with the department for the collection of support.
(c) Any person age eighteen (18) or above to whom support was owed during his minority may file a petition for a judgment against the nonsupporting parent or parents. Upon hearing, a judgment may be entered upon proof by a preponderance of the evidence for the amount of support owed and unpaid.
(d) As used in this subchapter, unless the context otherwise requires:
(1) “Minor child” means a child less than eighteen (18) years of age.
(2) “Noncustodial parent” means a parent who resides outside the household or institution in which the minor child resides.
Subsections (e) and (f) of the Statute were added by Act 870 of 1991:
(e) Any action filed pursuant to this subchapter may be brought at any time up to and including five (5) years from the date the child reaches the age of eighteen (18) years of age.
(f) This section shall apply to all actions pending as of March 29, 1991, and filed thereafter and shall retroactively apply to all child support orders now existing.
Sonya and Daniel Chunn argue they could not have brought this action until after they reached eighteen, and the law allows them to bring it for five years after reaching that age. That is, of course, a correct statement, but it does not make their claim a different one from that which was barred when their mother failed to bring it within the then-applicable five-year limitation period. As we read the statute it contemplates one support obligation which may be pursued by different persons at different times. The limitation period is applicable to all of them, and the law we espoused in the Sullivan and Johnson cases applies; the statute of limitations cannot be amended to extend the time to bring a claim which has been barred.
While it may seem unfair to hold that a child for whose benefit support was ordered is barred from seeking the arrearages because his or her custodial parent failed to assert the right when it was his or her prerogative to do so, we must also look to the classic finality rationale to which we alluded in the Johnson case. For more than five years after the arrearages accrued the person who could have brought the action to collect them did not do so. The law giving the children a claim had not come into existence. Given the law at the time, Mr. D’Agostino could have assumed properly that the claim was barred. He had a vested right to rely on the statute of limitations as a defense, and that could not be changed by subsequent legislation.
Affirmed.
Hays and Glaze, JJ., dissent. | [
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John I. Purtle, Justice.
The appellant was found guilty of murder in the first degree and received a life sentence. The sole argument on appeal is that there is insufficient evidence to sustain the conviction. We hold that there is sufficient evidence to sustain the conviction and affirm the judgment of the trial court.
In determining the sufficiency of the evidence on appeal, we must determine whether there is substantial evidence to compel a conclusion without resorting to speculation and conjecture. Williams v. State, 281 Ark. 387, 663 S.W.2d 928 (1984). On appellate review, we examine the evidence in the light most favorable to the appellee. If there is substantial evidence to support the verdict, the judgment of the trial court will bé affirmed. Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981).
The appellant was charged with and convicted of violation of Ark. Code Ann. § 5-10-102(a)(2) (Supp. 1987), which provides that a person commits murder in the first degree if “[w]ith the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person.” Premeditation and deliberation are not required to exist for any particular length of time and may be formed on the spur of the moment. Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979). Deliberation and premeditation may be inferred from factual circumstances provided the evidence clearly warrants the inferences and conclusions drawn. Walker v. State, 241 Ark. 300, 408 S.W.2d 905 (1966). It is not necessary to prove the defendant’s motive for the killing when there is substantial evidence to establish that the accused deliberately and with premeditation killed the victim. Parker v. State, 290 Ark. 158, 717 S.W.2d 800 (1986).
Clear and substantial evidence, presented through the testimony of eyewitnesses, reveals that the appellant was ejected from a lounge because of his unruly conduct. Shortly afterwards, he was observed outside arguing with other people and was overheard asking another person to allow him to use his pistol to shoot up the place. Rondell Peer, a friend and acquaintance of both the victim and the appellant, was present at the time of the murder. During the disturbance outside the lounge Rondell Peer heard raised voices and the sound of a gunshot behind him. He turned around and saw the appellant pointing a handgun at the victim. At that time, the victim’s arms were out in front of him, and he was backing away from the appellant. The victim called Peer’s name and stated that he had been shot. Then the victim staggered around the corner and fell on the sidewalk where he died. Another witness, Paul Bullock, stated that he observed the appellant pull a gun on another man just before the victim was shot. He also heard gunshots, saw the victim run around the side of the building and heard him say that he had been shot.
There is other substantial evidence, but it is not necessary to recite it because obviously the evidence set out conclusively establishes substantial evidence to support the conviction.
Pursuant to Rule 11 (f) of the Rules of the Supreme Court and Ark. Code Ann. § 16-91-113 (1987), we have reviewed the record of all objections that were decided adversely to the appellant and have found no prejudicial error.
Affirmed. | [
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Steele Hays, Justice.
In this appeal, we are asked to decide whether a circuit court retains jurisdiction over a defendant who has been ordered to pay restitution as a condition of a deferred imposition of sentence until the restitution has been paid in full, even beyond the duration of deferment. We hold that the trial court inherently retains jurisdiction over such a procedure until the full amount of restitution is paid, even if the term of the defendant has expired. Accordingly, we affirm the trial court’s decision to extend appellant’s probation period until her debt was paid.
On January 15, 1985, appellant, Annette Kyle (now Bohlman), was charged with the offense of leaving the scene of a personal injury accident, a Class D felony. On February 13,1985, she entered a plea of nolo contendere to the charge. The court withheld imposition of sentence for five years conditioned on good behavior and ordered her to pay restitution in the amount of $5,789.70 at the rate of $100.00 per month until paid in full. The court also placed Ms. Bohlman on supervised probation for one and one-half years which included performing 48 hours of community service.
In 1986 the State filed a petition to revoke appellant’s “suspended sentence.” The petition alleged that Ms. Bohlman had violated the terms imposed upon her by failing to make a restitution payment since July 1, 1986, and that the unpaid balance was $5,389.70. The petition was denied.
In 1989 the State filed a second petition to revoke alleging an unpaid balance of $4,520.00 and that the appellant should have paid $3,800.00 toward the restitution and had only paid $1,269.70, leaving $2,530.30 in arrears. Ms. Bohlman moved for a continuance, stating that she had paid $500 on March 20,1990, and that her employer had agreed to a wage assignment of $25.00 per week. The continuance was granted. The State later moved to withdraw the petition, and the court granted the motion.
The State filed a third petition to revoke on September 25, 1991, alleging that appellant had failed to make any payments since July 27, 1991. The unpaid balance at that time was $2,658.00. At the hearing on the petition, appellant moved to dismiss alleging that the State had failed to comply with Ark. Code Ann. § 5-4-309 (1987) by filing the petition after the expiration of the five year deferment. After hearing arguments by counsel the court denied appellant’s motion, relying on the language of Ark. Code Ann. § 5-4-303(f) (1987). Upon the close of the evidence, the court extended appellant’s probation period until such time as the restitution was paid in full at a rate of $25.00 per week. The court did not at any time revoke her “suspended sentence.”
As her first point on appeal, appellant contends that the trial court did not have the authority to take any action with regard to her because the period of the deferred sentence had expired before the revocation petition was filed. She stands on Ark. Code Ann. § 5-4-309(a) (1987):
The court may revoke a suspension or probation subsequent to the expiration of the period of suspension or probation, provided the defendant is arrested for violation of suspension or probation, or a warrant is issued for his arrest for violation of suspension or probation, before expiration of the period.
The State argues that under Ark. Code Ann. § 5-4-303(f), the trial court inherently retains jurisdiction over the defendant until restitution has been paid regardless of whether the prosecutor ever files a revocation petition or not. This statute provides in pertinent part:
[i]f the court has suspended the imposition of sentence or placed a defendant on probation conditioned upon him making restitution or reparation and the defendant has not satisfactorily made all his payments when the probation period has ended, the court shall have the authority to continue to assert its jurisdiction over the recalcitrant defendant and extend the probation period as it deems necessary or revoke the defendant’s suspended sentence.
The appellant cites the 1988 Supplementary Commentary to § 5-4-302(f) in support of her argument.
Act 315 of 1985 added the last sentence of subsection (f). Presumably, revocation proceedings under § 5-4-303(f) will be conducted pursuant to constraints imposed by § 5-4-309. See Supplementary Commentary to § 5-4-309. See also § 5-4-203 and the commentary thereto which recognize constitutional restrictions on imprisoning a defendant for failure to pay a fine. See also Drain v. State, 10 Ark. App. 338, 664 S.W.2d 484 (1984) which cites Bearden v. Georgia, 461 U.S. 660 (1983) for the proposition that failure to pay a fine or restitution can be punished by imprisonment only where the State can prove that the probationer failed to make bona fide efforts to do so.
In interpreting the two statutes at issue, we adhere to the basic rule of statutory construction which gives effect to the intent of the legislature, making use of common sense. Sanders v. State, 310 Ark. 630, 839 S.W.2d 518 (1992). In interpreting statutes, the court gives words their usual and ordinary meaning. Gibsonv. City of Truman, 311 Ark. 561, 845 S.W.2d 515 (1993). Also, the commentary to a statue is a highly persuasive aid to construction, but it is not controlling over the clear language of the statute. See Lewis v. State, 267 Ark. 933, 591 S.W.2d 687 (1980); Mears, County Judge v. Ark. State Hospital, 265 Ark. 845, 581 S.W.2d 339 (1919); Patrick v. State, 265 Ark. 335, 576 S.W.2d 191 (1979); Britt v. State, 261 Ark. 488, 549 S.W.2d 84 (1977).
In examining the actual wording of the statutes, we conclude that Ark. Code Ann. § 5-4-309 does not apply to appellant’s situation. That statute deals with revoking a suspension or probation after that period has expired. Here, as we have said, the court did not revoke appellant’s “suspended sentence,” it merely extended her probation period until the full amount of restitution was paid. Therefore, Ark. Code Ann. § 5-4-303(f) is controlling. The “shall” in the statute indicates that the court’s jurisdiction automatically continues until the restitution is complete. Moreover, the disjunctive “or” gives the court the option to either extend the probation period or revoke the suspended sentence. Here, the court correctly exercised its authority to extend Ms. Bohlman’s probation period until she had paid her debt.
Even if the two statutory provisions are in conflict with each other, Ark. Code Ann. § 5-4-303(f) governs because it was added by Act 315 of 1985, which was after the language of § 5-4-309 was adopted. The settled rule of statutory construction is that if two legislative acts relating to the same subject are in conflict with each other, the later act controls. Uilkie v. State, 309 Ark. 48, 827 S.W.2d 131 (1992); Wells v. Heath, 274 Ark. 45, 622 S.W.2d 163 (1981).
We find persuasive the State’s argument that a prosecutory should not be required to file a revocation petition prior to the expiration of the suspension or probationary period in cases involving unpaid restitution because it cannot be known until the period has fully expired whether the defendant has made restitution. A defendant could conceivably pay the full amount owed on the last day of the period and fulfill his or her obligation.
It follows that the trial court did not err in extending Ms. Bohlman’s probationary period. Pursuant to Ark. Code Ann. § 5-4-303(f), the trial court retains jurisdiction until the full amount of restitution is paid, even beyond the period originally allowed. The prosecutor was not required to comply with the requirements of Ark. Code Ann. § 5-4-309(e) because appellant’s deferred sentence was not revoked but merely extended to allow her to pay the restitution.
As her second point of appeal, Ms. Bohlman contends “the trial court erred in revoking her suspended sentence” because the written terms and conditions given to her as required by Ark. Code Ann. § 5-4-303(e) (1987) did not include the provision that the court’s jurisdiction over her would continue until the restitution was paid in full. Arkansas Code Annotated § 5-4-303(e) (1987) states:
If the court suspends the imposition of sentence on a defendant or places him on probation, the defendant shall be given a written statement explicitly setting forth the conditions under which he is being released.
This provision does not apply to Ms. Bohlman’s situation for the simple reason that her sentence was not revoked and she was never imprisoned. Her probation period was merely extended to allow her to pay the restitution at a rate she indicated that she could afford. In fact, the “Terms and Conditions of Suspended Sentence” and the Judgment both adequately explain the conditions of appellant’s suspension. She was informed in writing at the time of her sentence that she owed $5,789.70 as restitution. The State was not required to also notify her that the court retained jurisdiction until this amount was paid. The authority to enforce the terms of a suspended sentence is not itself a condition of the suspended sentence and is not required to be stated in writing. Therefore, this argument is meritless.
As her final point of appeal, Ms. Bohlman argues that the State failed to meet its burden of proof under Ark. Code Ann. § 5-4-309(d) (1987) to show by a preponderance of the evidence that she had inexcusably failed to comply with the conditions imposed on her. Appellant relies on Baldridge v. State, 31 Ark. App. 114, 789 S.W.2d 735 (1990), Reese v. State, 26 Ark. App. 42, 759 S.W.2d 576 (1988); and Phillips v. State, 25 Ark. App. 102, 753 S.W.2d 301 (1988) which set forth the burden of proof in revocation proceedings and the standard of review on appeal. However, these cases are distinguishable because the parties in those cases were all incarcerated and their sentences were revoked. Again, the requirements of Ark. Code Ann. § 5-4-309(d) do not apply because appellant was never imprisoned and her sentence was not revoked. Beyond that, the court did receive evidence concerning appellant’s payment history and her financial status. She testified she was able to make payments of $25.00 per week as restitution. The court examined the evidence and decided to require her to make payments at that same rate until the full amount was paid. In fact, the court was lenient in allowing her to pay off her debt at a reduced rate. That finding by the trial court was clearly not against a preponderance of the evidence.
Affirmed.
The briefs refer to the sentencing procedure in this case as a “suspended sentence.” However, the judgment reflects that the trial court withheld imposition of sentence for five years. | [
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George Rose Smith, Justice.
The appellee brought this action upon a $750 promissory note executed by the appellant Reynolds and by a co-maker whose debts have been discharged in bankruptcy. Reynolds has not denied his liability for the principal amount of the note. He did, however, file a counterclaim, individually and as the asserted class representative of other borrowers from the plaintiff, asserting that the plaintiff had violated the Truth in Lending Law, 15 U.S.C.A. § 1639, by failing to disclose the amount of its finance charges and its annual percentage rate. This appeal is from an order sustaining the plaintiff’s motion to dismiss Reynolds’ counterclaim. Though the point is not argued in the briefs, we may assume the order to be appealable. See Eisen v. Carlisle & Jacquelin, 370 F. 2d 119 (2d Cir., 1966); Reader v. Magma-Superior Copper Co., 108 Ariz. 186, 494 P. 2d 708 (1972); Miles v. N.J. Motors, 32 Ohio App. 2d 350, 291 N.E. 2d 758 (1972).
Reynolds concedes that the trial court’s action in dismissing his counterclaim, insofar as it constituted a class action, must be affirmed unless we overrule our holding in Tucker v. Pulaski Fed. S. & L. Assn., 252 Ark. 849, 481 S.W. 2d 725 (1972), which was decided at about the same time the trial court entered the order now before us. In Tucker we held that the filing of a class action is not within the scope of the counterclaim statute. Ark. Stat. Ann. § 27-1121 (Repl. 1962).
We adhere to the Tucker decision. Reynolds argues that both the counterclaim statute and the class action statute, Section 27-809, were parts of the Civil Code and should be construed together. In 1935, however, the legislature amended the counterclaim statute to provide that a defendant “must” assert his counterclaims, making that assertion mandatory. Corey v. Mercantile Ins. Co. of America, 207 Ark. 284, 180 S.W. 2d 570 (1944). Obviously the filing of a class action by counterclaim cannot be mandatory, for if it were the other members of the class would be bound by a single defendant’s failure to assert the common cause of action by counterclaim.
Reynolds also argues that the Tucker decision deprives him of his opportunity to maintain the class action, if he cannot assert it by counterclaim in this case. There are two answers to that contention. First, Reynolds could have filed the class action as plaintiff before the appellee took the initiative by instituting the present suit. Secondly, Reynolds has no inherent or constitutional right to bring a class action, because, apart from his personal cause of action, the recovery would be for the benefit of other persons.
In the briefs both sides agree that the trial court erred in dismissing Reynolds’ personal counterclaim. We do not pass upon the merits of that cause of action, for even if we held the pleading to be demurrable, Reynolds would be entitled to amend. We therefore affirm the trial court’s action in dismissing the class-action counterclaim, but we set aside the dismissal of Reynolds’ personal counterclaim and remand that cause for further proceedings, with Reynolds to recover his appellate costs. | [
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J. Fred Jones, Justice.
Tommy Dale was convicted at a jury trial for selling marijuana. He was sentenced to three years in the Arkansas Department of Correction and fined $500 with the fine suspended. On appeal to this court he contends that the trial court erred in admitting into evidence a plastic bag containing vegetable material identified by a witness as marijuana. He also contends that the trial court erred in failing to grant a mistrial when the prosecuting attorney elicited from the state’s witness, Ron Rutledge, testimony to the effect that Tommy Dale had committed other crimes. We find no merit in either contention.
William Ronald Rutledge, an undercover police officer, testified that he purchased a "lid” of substance represented to, and believed by, him to be marijuana from Tommy Dale. He said that when he first met Mr. Dale, Dale informed him that he had access to a quantity of drugs. He said that after his first conversation with Dale he returned later and was told by the appellant Dale that he dealt in pounds of marijuana and did not deal in “lids.” He described “lids” as being plastic bags containing approximately one ounce of marijuana. He said that further discussion of marijuana with Dale resulted in Dale opening a suitcase containing about 20 or 25 bags of what appeared to be marijuana. He said that Dale handed him a plastic bag containing a subr stance which he believed to be marijuana and be handed Dale $15 in payment. He said he called Sergeant Silvey and delivered the bag with its contents to him. He said the bag was closed by a rubber band wrapped around it; that he placed his label on the bag when he delivered it to Silvey; that the bag offered into evidence was the same bag he purchased from Dale and the contents of the bag appeared to be the same.
Sergeant Silvey testified that he was familiar with the appearance of marijuana; that Rutledge delivered the bag to him and that the bag contained what appeared to be marijuana. He said he placed the bag with its contents in a locked filing cabinet in the police headquarters building and that he, together with Captain Walker and Lieutenant Smith were the only officers in the department having keys or access to the cabinet. He said that he and Captain Walker removed the bag from the locked cabinet and took the bag with its contents to the laboratory in Little Rock for analysis. He said Lieutenant Smith was present when the bag was removed from the filing cabinet; that the bag still had the rubber band around it, together with the label, and that it had not been altered in any way before he and Captain Walker took it to the laboratory for analysis. He said he was with Captain Walker when Captain Walker handed the package to the chemist at the laboratory in Little Rock. Sergeant Silvey’s testimony was corroborated by Lieutenant Smith and the testimony of Captain Walker. Manuel Holcomb testified that he received the plastic bag and contents offered in evidence from Captain Walker on November 21, 1972; that he kept the bag and contents under lock and key in the storeroom at the laboratory until he made an analysis of the substance in the bag on November 22. He said the chemical analysis showed the substance in the bag to be marijuana, and this witness identified the package and contents offered in evidence as being the same he received from Captain Walker. The chain of possession was well preserved under the evidence in this case and we find no merit in the appellant’s first contention.
As to Dale’s second contention, relative to the testimony of Rutledge on redirect examination, the record appears as follows:
“Q. I believe, you testified that he mentioned, that Tommy Dale mentioned that he had other drugs?
A. Yes, sir.
Q. But I don’t believe you, did he mention what specific drugs he had?
A. Yes, sir. He did.
Q. Tell the jury what he said? ,
A. He mentioned cocain and RJS’s, which, and marijuana and hash.
Q. Cocain, hasish—
A. Cocain, hash, marijuana.
MR. PARKER: You may ask.
THE COURT: You may be excused. (Witness excused)
(Note: Conference at bar of The Court.)”
This testimony was then followed by the testimony of Sergeant Silvey, Lieutenant Smith and Captain Walker. After these three witnesses had finished their testimony, the appellant moved for a mistrial and stated his reasons therefore as follows:
“During the State’s re-cross or re-direct examination of the witness, Ron Rutledge, the State elicited testimony that the defendant, Tommy Dale, was in possession of other and had possessed other narcotics, which narcotics, which drugs were named by the witness on the witness stand and in the presence of the jury. At that time, the defendant moved for a mistrial on the grounds that the testimony elicited from the witness Rutledge was not elicited for proof of the allegations set forth in the Information, but for proof of other crimes which are not admissible, which the only purpose for the elicitation of said other crimes was to show that the defendant was a man of bad character, addicted to crime. The defendant would move The Court to declare a mistrial at this time, based upon the Arkansas Supreme Court decision, Sweatt versus State, reported in 473 S.W. 2nd, 913.”
The state resisted the motion on the ground that the statement attributed to Mr. Dale, was a part of the res gestae or facts and circumstances surrounding the sale of the marijuana, wherein the defendant at the time stated he was interested in the sale of pounds and not “lids” of marijuana, and that it did not constitute separate offenses as was the situation in Sweatt v. State, 251 Ark. 650, 473 S.W. 2d 913, relied on by the appellant. The state also opposed the motion because the testimony was hot timely objected to. The trial court overruled the motion for a mistrial and stated that in the court’s opinion the Sweatt case and the rule announced therein were distinguishable on the facts from the case being tried, and that the holding in the Sweatt case was not applicable. We agree with the trial court.
In Sweatt v. State, supra, the defendant was charged with selling or bartering LSD, a hallucinatory drug, to Robbie White, a 14-year-old boy. Robbie White testified that he bought one LSD tablet from Sweatt for $3.00 on credit and that Sweatt told him the strength of the tablet was 300 micrograms. White testified that after taking the tablet it caused him to “go on a trip”; that his vision was “messed up” and couldn’t do things right and felt dead. We held that the jury was justified in concluding from this testimony that Sweatt said the tablet was LSD and in fact it was. In the Sweatt case, however, the facts are distinguished from those in the case at bar in the following language:
“Upon the second point the appellant is right in his contention that the court erred in permitting the State to prove other offenses committed by Sweatt. The court allowed the prosecution to introduce much testimony showing that Sweatt had had marijuana at his apartment and had sold it. In fact, as in Moore v. State, 227 Ark. 544, 299 S.W. 2d 838 (1957), the other offenses were proved in more detail than was the charge actually being tried.”
In Sweatt we then reiterated the basic rules stated in Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954), as follows:
“‘The State is not permitted to adduce evidence of other offenses for the purpose of persuading the jury that the accused is a criminal and is therefore likely to be guilty of the charge under investigation. In short, proof of other crimes is never admitted when its only relevancy is to show that the prisoner is a man of bad character, addicted to crime.’”
We are of the opinion that the evidence objected to in the case at bar falls more within the rule announced in Davis v. State, 182 Ark. 123, 30 S.W. 2d 830, and cases therein cited. Davis and another, were charged with murder in the perpetration of robbery. The victim Weed was killed about 8 o’clock and a witness was permitted to testify that at a time before 8 o’clock and at a place near the scene of the homicide, he was robbed by the appellants and that they were armed. In that case we said:
“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.”
The testimony objected to in the case at bar was not independent testimony of separate crimes committed by the accused, but was testimony of the witness as to what products the accused said he had available, after which the witness elected to purchase the marijuana. We are of the opinion that the evidence was admissible in the context given and the trial court did not err in refusing Dale’s motion for a mistrial. Having reached this conclusion we do not pass on the matter of timely objection argued by the state. However, in Powell v. State, 231 Ark. 737, 332 S.W. 483, we said:
“[A]n objection to be effective must be made at the first opportunity to do so, or appellant must move for exclusion. See Clardy v. State, 96 Ark. 52, 131 S. W. 46. At any rate, because of the delayed objection, the matter of granting a mistrial was in the sound discretion of the trial court and its action will not be reversed unless an abuse of that discretion is shown.”
In the case at bar, we are of the opinion that the appellant’s second contention is without merit for the reason that the evidence was simply a part of Dale’s offer of the drugs he had for sale and did not amount to testimony of other criminal acts.
The judgment is affirmed.
Harris, C. J., not participating. | [
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Jack Holt, Jr., Chief Justice.
This is an action challenging the trial court’s refusal to set aside a default judgment for want of sufficient service of process upon the appellant-defendant, Dan Wilburn. We find that the order appealed from is not final and dismiss the appeal.
On November 20, 1987, the appellee, Keenan Companies, Inc. (Keenan), filed a breach of contract action against Dan Wilburn and his brother, Harry Wilburn, seeking money damages. On January 19, 1988, the trial court granted Keenan’s motion for default judgment because Dan Wilburn and Harry Wilburn had failed to appear or otherwise defend in the action.
On January 28,1988, the Wilburns filed a motion to set aside the default judgment on the grounds that service of process was insufficient. Thereafter, in an order filed March 3,1988, the court granted the motion to set aside the default judgment as to Harry Wilburn but denied the motion as to Dan Wilburn. From this order, Dan Wilburn appeals.
Whether a final judgment, decree, or order exists is a jurisdictional issue we have to raise, even if the. parties do not, in order to avoid piecemeal litigation. Mueller v. Killam, 295 Ark. 270, 748 S.W.2d 141 (1988). In order to be final and appealable under Ark. R. App. P. 2 and Ark. R. Civ. P. 54(b), a trial court’s order must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Id. Ark. R. Civ. P. 54(b) provides:
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon express entry of judgment. In the absence of such determination and direction, any order or other form of decision which adjudicates fewer than all the claims or rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision any time before the entry of a judgment adjudicating all the claims and the rights and liabilities of all the parties.
The trial court’s order does not expressly direct the entry of a final judgment as to Harry Wilburn, but instead simply grants his motion to set aside the defáult judgment. Therefore, under Rule 54(b) the order does not terminate the action as to the other party in the action, Dan Wilburn, Simply put, the order is not final.
We will not reach the merits of an appeal if the order appealed from is not final. Kilgore v. Viner, 293 Ark. 187, 736 S.W.2d 1 (1987).
Appeal dismissed. | [
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Leflar, J.
Plaintiff administratrix brought action for the alleged wrongful death of her husband, Alfonzo Penny, who was killed in a highway collision between a milk truck which he was driving and a Gulf Oil Products truck driven by defendant Cooper assertedly acting as the employee of the other defendants. Plaintiff’s complaint alleged negligence in defendant Cooper’s driving as the cause of the collision. This the defendants denied. At the trial plaintiff introduced all her evidence, and rested, whereupon defendants moved for directed verdicts, which were granted by the Circuit Judge. Plaintiff appeals.
“ A directed verdict for the defendant is proper only when there is no substantial evidence from which the jurors as reasonable men could possibly find the issues for the plaintiff. In such circumstances the trial judge must give to the plaintiff’s evidence its highest probative value, taking into account all reasonable inferences that may sensibly be deduced from it, and may grant the motion only if the evidence viewed in that light would be so insubstantial as to require him to set aside a verdict for the plaintiff should such a verdict be returned by the jury.” Hawkins v. Mo. Pac. R. Co., ante, p. 42, 228 S. W. 2d 642,. 644.
The evidence introduced by the plaintiff showed that decedent was driving his milk truck in a westerly direction on State Highway 34, a guavel road near Paragould. The oil truck was being driven by defendant Cooper in an easterly direction on the same road. Shortly before the collision a state highway truck, also being driven toward the east, had overtaken and passed the oil truck. The highway was dry and dusty, and there was apparently a great deal of dust in the air, perhaps enough to obscure vision. At the time of the collision, decedent Penny’s truck and the state highway truck, going in opposite directions, had just passed each other. Penny’s truck then collided with the oil truck, which was close behind tlio statu highway truck. Thu collision apparently occurred in the midst of a cloud of dust.
Alfonzo Penny, the only occupant of his truck, was instantly killed. Defendant Cooper, driver of the oil truck, was not called as a witness by the plaintiff and, since the motion for directed verdict was granted at the close of plaintiff’s evidence, he did not testify at all. There were no other eye witnesses of the collision. Both trucks came to rest on the north side of the highway, which was the right side for the Penny truck and the left side for Cooper’s oil truck. The Penny truck had been struck on it's left side, and it came to rest close to the point of collision. The oil truck had its front wheels knocked off. These rolled to the north side of the road a hundred feet or more to the east of the Penny truck. The oil truck itself, without its front wheels, skidded on the front of its chassis to a point on the north side of the road variously estimated to be 150 to 250 feet east of the Penny truck.
The theory upon which plaintiff attempted to establish negligence in defendant Cooper was that Cooper was driving on the wrong side of the road, which fact was the proximate cause of the collision, and that Cooper was generally a negligent driver. Defendants’ theory was that Alfonzo Penny was driving on the wrong side of the road, and that this fact was the cause of the collision. The burden of proof was of course on the plaintiff.
The only tangible evidence given as to whether the point.of collision was on the south (Cooper’s) side of the road or on the north (Penny’s) side came from two witnesses who testified as to the nature and location of marks left on the road surface by the two trucks.
Witness Marvin Penny testified in detail as to these marks, supporting his testimony by reference to two photographs, also introduced in evidence, both taken at the scene of the collision shortly after it occurred. His testimony was that the skid mark of the oil truck chassis, ‘‘scooting” on the road surface after the wheels were lost, commenced well over on the south (Cooper’s) side of tlie roadway, and veered to tlie north side only as it' came near to the point where the truck finally stopped, a considerable distance to tlie east of the point of collision. Both photographs also showed this skid mark commencing and continuing for some distance on the south (Cooper’s) side of the road. In addition, Marvin Penny testified that the marks of the right hand dual tires of the oil truck were clearly visible on the south (Cooper’s) side of the roadway, very near to the sodded line on the south edge of the graveled road. The testimony of this witness tends altogether to support the defendants’ rather than the plaintiff’s theory as to how the collision occurred.
The other witness who testified about the marks on the highway was Press Williams. He came to the scene about an hour after the accident, whereas Marvin Penny came up at once. The whole of Williams’ testimony concerning marks on the highway was elicited on direct examination by plaintiff’s counsel, and is quoted herewith :
“Q. You have said there was some kind of marks in the highway leading up to the Penny truck? A. It was the oil truck wheels where it looked like it was going to pull out and go around. Q. What I asked you about was physical marks on the road leading to the Penny truck. Did you observe any? A. Yes. Q. What kind were they? A. Looked like dual wheels. Q. Leading up to the Penny truck? A. Right past the Wreck. Looked like it dug out two little holes. Q. I am afraid you don’t understand what I am talking about. Was Mr. Penny’s body still there? A. Yes, sir.” (Tr. 75-76).
Plaintiff on appeal argues that this constitutes evidence that Cooper may have attempted to pass the state highway truck ahead of him just before he collided with Alfonzo Penny’s truck, and that he had pulled over onto the left (Penny’s) side of the highway in order to do so.
■Press Williams’ testimony, as quoted, was the only evidence from which this conclusion might have been inferred. We do not believe that his testimony would be sufficient to sustain a jury verdict to the effect that this was what happened. The words “It was the oil truck wheels where it looked like it was going to pull out and go around,” in the context in which they appear, are ambiguous, and we cannot say that they constitute any evidence to support plaintiff’s theory as to how the collision occurred. This conclusion is buttressed by the fact that plaintiff’s counsel apparently attached no special significance to the words at the time the witness testified, since he then said to the witness “I am afraid you don’t understand what I am talking about.” The true meaning of ambiguous words is usually much better understood by those who hear them when they are spoken than by others who read them later in the cold type of a formal record.
Another alleged error asserted by appellant is that the Court refused to allow witness Marrón Mason to testify that the deceased Alfonzo Penny was habitually a careful driver and that the witness knew the defendant Cooper to be a careless and reckless driver. Without deciding whether this testimony should or should not have been admitted, it is enough now to point out that even had it been admitted it would not, in the absence of evidence sufficient to establish negligence in Cooper in the particular instance, have sustained a verdict for plaintiff. Since we hold that there was no evidence showing that Cooper was negligent in this instance, it follows that no prejudice resulted from exclusion of this part of Marrón Mason’s proffered testimony.
Finally, appellant contends that his case should have been given to the jury under the doctrine of res ipsa loquitur. This Court has held otherwise. Arkmo Lumber Co. v. Luchett, 201 Ark. 140, 143 S. W. 2d 1107. And see 8 U. of Ark. Law School Bull. 43. Res ipsa lóquitur has no application unless the evidence in the particular case has a substantial tendency to show negligence in the defendant and in nobody else. That was not the state of the evidence here.
The judgment of the Circuit Court is affirmed. | [
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George Rose Smith, Justice.
This is a claim for an increase in permanent partial disability benefits under the workman’s compensation act. In 1967 Logan, the claimant, sustained a back injury at work while lifting a piece of furniture. After surgery — a laminectomy and disc fusion — and after the completion of his healing period, Logan was awarded a 20% permanent partial disability. In 1971 Logan’s physician, Dr. Millard, found that the disability had increased to 35% as related to the body as a whole. The Commission accepted Dr. Millard’s evaluation and increased the award accordingly. The insurance carrier contends that there is no substantial evidence to sustain a finding that Logan’s enhanced disability was attributable to the 1967 injury.
Interpreting the testimony in the light most favorable to the Commission’s decision, as is our rule, we find sufficient substantial evidence to support the increased award. We have previously quoted from Larson’s treatise on workmen’s compensation law the rule that is applicable here: “When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant’s own negligence or misconduct.” Aluminum Co. of America v. Williams, 232 Ark. 216, 335 S.W. 2d 315 (1960). Hence the question is whether Logan’s heightened disability could be found upon the evidence to be attributable to the original 1967 injury.
Dr. Millard’s testimony amply supports the Commission’s award. He stated at the outset that when he released Logan from medical treatment in 1967, he anticipated that the patient might have additional difficulty with his back. “This type of back trouble sometimes does have further trouble. . . . Well, it might arise by just turning over in bed, tying his shoe, it might arise from walking, or standing on his feet eight hours a day working, or something of this sort.” Later in his testimony Dr. Millard made such statements as: “It all dates back to the original injury. . . . Now, as far as I’m concerned, the symptoms he was having at that time [1971], and the myelogram findings, subsequently date back eventually to the original injury. I can’t pinpoint any one time that this [increased disability] started or happened.”
After the termination of Logan’s original healing period he obtained work with other employers and was involved in an automobile accident. The appellants argue in -effect that Dr. Millard could not say with reasonable medical certainty that Logan’s worsened condition was due to the first injury rather than to later incidents.
We cannot say that Dr. Millard’s testimony lacks substance. The most serious later incident, upon which the dissenting commissioner relied heavily, occurred about August 1, 1970. Logan consulted Dr. Millard a few days later. In reporting to the insurance carrier Dr. Millard wrote in part: “I saw Mr. Logan again on August 7, 1970, because of a renewal of symptoms. He gave a history of about one week ago lifting a butane tank and twisting to one side and feeling a pop and pain in the back, but particularly with the symptoms being particularly painful in both legs.” At the end of his letter the doctor said: “I explained to Mr. Logan that his present symptoms, in my opinion, are due to primarily fatigue from attempting to do too much at one time and not get enough rest. I also advised him to wear his brace, for instance in the afternoon, try to get more rest and try to avoid twisting injuries to his spine. I do not feel that he has any significantly severe injury at the present time.”
Thus even at the time Dr. Millard did not attach causative importance to the butane tank incident. Moreover, it was not until the expiration of a full year, during which Logan was usually able to work, that Dr. Millard reached the conclusion that Logan’s disability had increased to 35%. Logan himself testified that the pop and pain in his back didn’t hurt any more than a lot of other things.
As we have indicated, Dr. Millard anticipated from the beginning that Logan might experience additional back trouble, which could result from such everyday activities as walking, tying a shoe, or turning over in bed. Under the rule that we follow, such aggravations of the original disability are compensable in the absence of an independent intervening cause. We have frequently said that it is the Commission’s duty to draw all legitimate inferences in favor of the claimant and to give him the benefit of the doubt in making determinations of fact. Herman Wilson Lbr. Co. v. Hughes, 245 Ark. 168, 431 S.W. 2d 487 (1968); Burrow Constr. Co. v. Langley, 238 Ark. 992, 386 S.W. 2d 484 (1965); Herron Lbr. Co. v. Neal, 205 Ark. 1093, 172 S.W. 2d 252 (1943). In the case at bar we find adequate substantial evidence to support the Commission’s decision.
Affirmed. | [
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Robert H. Dudley, Justice.
On April 26, 1978, the appellant and three codefendants, members of a religious cult, were charged with the first degree murder of a three-year-old girl. They testified that they killed the child because they believed her to be an anathema to the cult.
On September 12, 1978, appellant’s trial-in-chief began. After two of the State’s witnesses had testified, the prosecutor and appellant’s attorney reached a plea bargain. Under it, the State would amend the information to include the firearm enhancement statute, Ark. Stat. Ann. § 41-1004 (Repl. 1977),- [presently Ark. Code Ann. § 5-4-505 (1987)] and the appellant would change his plea to guilty. In exchange for his plea, he would receive fifty years for the first degree murder charge and 15 years for the firearm enhancement charge. The appellant subsequently pleaded guilty.
On September 10, 1981, the appellant filed this post-conviction proceeding alleging, among other things, failure of the trial court to comply with A.R.Cr.P. Rule 24.4 for the firearm enhancement statute. For some unexplained reason the petition was not heard until July 13, 1987, almost six years after it was filed, and then the trial court’s written opinion was not entered until February 3,1988. The trial court denied relief. We reverse and remand.
Rule 24.4 requires that, before a guilty plea is accepted, the trial court address the accused personally and inform him of: (a) the nature of the charge and determine that he understands it, (b) the mandatory minimum sentence of the charge, if any, (c) the maximum sentence, (d) the effect prior convictions or additional charges could have on the sentence, and (e) that by pleading guilty, or nolo contendere, the accused waives the right to a jury trial and to be confronted with the witnesses against him, except where the death penalty is sought.
We have held, and continue to hold, that compliance with Rule 24 is mandatory. Reed v. State, 276 Ark. 318, 635 S.W.2d 472 (1982); Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980). In Shipman v. State, 261 Ark. 559, 550 S.W.2d 424 (1977), we held that substantial compliance was sufficient. In that case, subsection (a) was complied with as the informations were read to the accused, the deputy prosecutor stated the details of the crimes, and, at the post-conviction hearing, the appellant stated he knew the nature of the charges. He was aware of subsections (b) and (c), the potential sentences. Subsection (d), prior convictions, was not applicable. He understood subsection (e), that he was waiving the right to a jury trial.
Here, there was no such substantial compliance with regard to the firearm enhancement charge. The trial court did not comply with subsection (a) and apprise appellant of the nature of the firearm charge or what the State would have to prove to convict him of that charge. The trial court did not comply with subsection (b) and inform the appellant of the mandatory minimum sentence. Instead, the trial court only indicated that the maximum sentence was a mandatory sentence. With regard to subsection (e), the trial court did not advise the appellant that he had a right to defend separately on the firearm charge, or that he had a right to a jury trial or appeal from a guilty verdict on that charge.
The decision of the circuit court on the firearm enhancement conviction is reversed, and that part of the case is remanded so that that conviction may be set aside and appropriate proceedings had in accordance with Rule 37.4. The judgment of conviction for first degree murder is not affected by this opinion.
Reversed and remanded.
Holt, C.J., Hickman, and Purtle, JJ., concur in part and dissent in part. | [
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Smith, J.
This litigation arose upon the remand of the cause of the Home Life Insurance Company of New York v. Masterson, 180 Ark. 170, 21 S. W. (2d) 414. As appears from the opinion in that case, separate suits were brought against an insurance company upon two insurance policies upon the life of Gilbert Hays, which were consolidated and tried together. One of these, a policy for $5,000, had been assigned to S. P. Blackwood, who, in turn, assigned it-to the First National Bank as collateral security for an indebtedness which Blackwood owed the bank. The assignment to Blackwood was alleged to have been absolute; that to the bank as collateral, and the suit was brought in the name of the bank.
The widow and minor child of the insured filed an intervention, in which they alleged that the assignment to Blackwood was not absolute, but by way of collateral, and there was a prayer that the amount of the indebtedness which it secured be ascertained and paid out of the sum recovered on the policy and that the excess be paid to the interveners. An answer was filed to this intervention, and testimony was taken as to the character of the assignment and the extent of the indebtedness which it secured. The court found that the insured had assigned the $5,000 policy to Blackwood as collateral security to secure a total indebtedness of $1,648.86, which sum was ordered to be paid the -bank, and that the balance due on the policy, amounting to $3,848.64, with interest, should be paid the insured’s administrator for the benefit of his estate.
The decree of the trial court, holding the insurance company liable on the $5,000 policy, was affirmed by us, but the other policy sued on was held void as a wagering contract, and the decree in the consolidated cases was reversed and remanded, “with directions to render a decree in accordance with the views of this opinion, and not inconsistent with the principles of equity. ’ ’
Upon the remand of the cause the suit on the policy which had been held to be a” wagering contract was dis- . missed, and judgment was rendered on the other—the $5,000 policy—for the amount thereof with interest, as in the original decree. The court fixed an attorney’s fee of 20 per cent, of the total recovery, making a fee of $1,103.50, and ordered $773.55 of this amount to be paid the attorneys for the interveners and the balance, $329.95, to be paid the attorney for the plaintiff bank, and the attorney for the bank has appealed.
Upon filing the intervention, the interveners, unasked, made common cause with the plaintiff in that suit in the assertion of the liability of the insurance company, and the interveners filed separate briefs on the appeal to this court. The right of the interveners to share in the recovery was one of the questions involved on the appeal, and was only disposed of finally in our opinion affirming the holding of the chancellor that the policy had been assigned as collateral only.
The question involved on this appeal is therefore the proper division of the attorney’s fee. This fee was assessed under the authority of § 6155, O. & M. Digest, which provides that “In all cases where loss occurs, and the * * * insurance company liable therefor shall fail to pay the same within the time specified in the policy, after demand made therefor, such'company shall be liable to pay the holder of such policy, * * * all reasonable attorney’s fees for the prosecution and collection of said loss; * *
It is the insistence of the appellant attorney that his client, the bank, was the holder of the policy within the meaning of the statute quoted, and that the fee should not have been divided, but should all have been ordered paid to his client for his benefit.
We think, however, that this is not the proper construction of the word “holder,” as employed in the statute which we have quoted. The word has reference, not to custody, -but to beneficial ownership, and the holder is the person, or persons, who, having the right to sue, have exercised that right successfully. Entwistle v. Travelers’ Ins. Co., 202 Pa. 141, 51 Atl. 759.
The interveners were therefore holders of the policy, as well as the bank, because they had a beneficial interest in the policy, which they enforced by their intervention.
We said, in the case of The Mutual Life Ins. Co. of N. Y. v. Owen, 111 Ark. 554, 164 S. W. 720, that it was the purpose of this statute to permit the plaintiff to procure the iservices of a competent attorney, or firm of attorneys, and that the statute did not contemplate the employment of two attorneys, or two firms of attorneys; in other words, that there should be a single fee, and the insurance company would not be required to pay two attorneys. That was a case in which two attorneys, not otherwise associated, prosecuted a suit on a policy to a successful conclusion, and we held that the fee should be fixed as if only one attorney, or one firm of attorneys, had been employed. Here, there was but one fee, and the question for decision is, how shall it be divided?
The court assessed the fee at 20 per cent, of the sum recovered, and divided it between the attorneys in proportion to the amounts recovered by their respective clients.
We have concluded that, in the absence of any agreement between the attorneys as to the division of the fee, it is more consonant with the statute as construed in the Owen case, supra, and with the principles of equity, to divide this single fee of 20 per cent, equally between the two attorneys, and the decree of the lower court will be modified accordingly and, as thus modified, will be affirmed. | [
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J. Fred Jones, Justice.
This is an appeal by Harold Utley and wife from a chancery court decree vesting title to a triangular piece of land in David Ruff by adverse possession. For the purpose of clarifying the issues on this appeal, the appellee Ruff is the unquestioned owner of a two acre plot of land in Pope County described as follows:
“Part of the NEM of the NWM of Section 34, Township 9 North, Range 20 West described as beginning at a point 856 North of the Southwest corner of said NEM of the NWM, run North 330 feet; thence East 240 feet; thence South 330 feet; thence West 240 feet to the point of beginning.”
The appellant Utley holds record title to land in the NWM of the NWM of Section 34 adjacent to, and immediately west, of Mr. Ruff’s land. State Highway No. 7 runs in a southeasterly direction across the east side of the NWM of the NWM of Section 34 and this litigation concerns the ownership of that portion of the NWM of the NWM lying east of the highway and between the highway and Ruff’s two acre tract in the NEM of the NWM. Utley claims it under the deed record title and Ruff claims it by adverse possession. The litigation arose when Utley built a fence along the east boundary line of the NWM of the NWM between Ruff’s described land and the highway, and Ruff filed suit in chancery for removal of the fence alleging that he had acquired title to the land between Utley’s new fence and the highway by adverse possession. Of course Ruff assumed the entire burden of affirmatively proving his title by adverse possession. The chancellor found in favor of Ruff, but on trial de novo we are of the opinion that the chancellor’s findings and decree are against the preponderance of the evidence.
There were two survey plats made and prepared by surveyor Ragsdale and one made and prepared by surveyor Orton placed in evidence. These survey plats differ as to the exact location of Highway 7 in relation to the Ruff two acre tract. Ragsdale admitted that his surveys did not accurately locate the highway in relation to the Ruff land as they were not made for that purpose. All the sur veys substantially agree as to the location of the division line between the northwest of the northwest and the northeast of the northwest, so that line in relation to the highway becomes immaterial since Ruff claims by adverse possession all the land between the west boundary line of his two acre tract and the highway. The chancellor accepted the Orton survey and we see no reason to discuss the accuracy or differences in the surveys.
The law on adverse possession is well established in Arkansas, but the difficulty arises in applying the law to the facts established by evidence in a given case. The evidence in the case at bar is rather clear that Ruff’s two acre tract has never been enclosed by fence and has not been in cultivation since about 1927. It is also clear that the portion he claims by adverse possession has never been in cultivation or enclosed by fence.
Title to land by adverse possession does not arise as a right to the one in possession; it arises as a result of statutory limitations on the rights of entry by the one out of possession. Possession alone does not ripen into ownership, but the possession must be adverse to the true owner or record title holder before his title is in any way affected by the possession, and the word “adverse” carries considerable weight. With the exception of saving clauses in favor of minors and insane persons, Ark. Stat. Ann. § 37-101 (Repl. 1962) reads as follows:
“No person or persons, or their heirs shall have, sue or maintain any action or suit, either iri law or equity, for any lands, tenements or hereditaments but within seven [7] years next after his, her or their rights to commence, have or maintain such suit shall have come, fallen or accrued: and all suits, either in law or equity, for the recovery of any lands, tenements or hereditaments shall be had and sued within seven [7] years next after title or cause of action accrued, and no time after said seven [7] years shall have passed.”
This statute does not say or mean that one in possession of land for seven years thereby obtains title to it. The statute simply says and means that when one is in possession of land, no one may question his claim of ownership except within seven years after the cause of action first accrues. So in any case of adverse possession the primary questions are, when did the possession become adverse and when did the cause of action accrue. These questions have been before this court in many cases.
There is some difference between adverse possession under color of title and adverse possession where there is no color of title. The primary difference is that in the absence of color of title possession is limited to the land actually occupied (sometimes referred to as “pedal possession”); whereas in adverse possession under color of title, the actual possession, by presumption of law, is constructively limited to the instrument which provides color of title. Dierks Lbr. & Coal Co. v. Vaughn, 131 Fed. Supp. 219; Bradbury v. Dumond, 80 Ark. 82, 96 S.W. 390; 11 L.R.A. (N.S.) 772.
One of the cardinal principles of adverse possession in order that it may ripen into ownership is that the possession for seven years must have been actual, open, notorious, continuous, hostile and exclusive, and it must be accompanied with an intent to hold against the true owner. Terral v. Brooks, 194 Ark. 311, 108 S.W. 2d 489; Strieker v. Britt, 203 Ark. 197, 157 S.W. 2d 18; Montgomery v. Wallace, 216 Ark. 525, 226 S.W. 2d 551.
Culver v. Gillian, 160 Ark. 397, 254 S.W. 681, was an adverse possession case without color of title. The adverse claimant submitted proof that he put up a sign on the property forbidding trespassers from coming there; that at one time he had underbrush cleared and some of the larger trees cut down; that one year he planted some garden seed on the property, and that within the statutory period he enclosed and rented a part of the land. In holding the evidence insufficient to establish title by adverse possession, this court said:
“[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.
In the present case it may be said that, under the circumstances shown by the defendant himself, there has been no actual, visible, hostile appropriation of the lots, to the exclusion of the owner of the paper title, continuously for seven years. The lots were un-inclosed and unimproved. There was no actual continuous use of the lots by the defendant of such unequivocal character as to reasonably indicate to the owner that the defendant was making a hostile claim to the lots. Norwood v. Mayo, 153 Ark. 620.
The defendant claims to have gone into possession of the lots in 1907 and to have held adverse possession ever since. He describes his adverse possession, however, and it is not of such a substantial character as to give him title to the lots. At one time he had the underbrush cleared and some of the larger trees cut down. One year he planted and cultivated a few garden seed. He did nothing from that time until the suit was brought, except that, in 1917, a part of the lots were inclosed and rented. It is true that, in the beginning, he put up a sign on the lots forbidding trespassers from coming there. This of itself would not be sufficient to show adverse possession of the lots against the true owner. It is not even shown that the sign remained posted up continuously for seven years. Therefore we hold that, under his own testimony, the defendant did not acquire title to the lots by adverse possession.”
In Coons v. Lawler, 237 Ark. 350, 372 S.W. 2d 826, we pointed out that to prevail on a claim of adverse possession not under color of title one must show actual or pedal possession to the extent of the claimed boundaries, and in that case the acts of the plaintiff in constructing a septic tank, filling in a low place on the disputed strip, parking trailers on the property at irregular intervals, planting a row of trees on the property and building a boat dock, fell short of that adverse possession required for a trespasser’s claim to ripen into title.
We have also held that seasonable cultivation of patches on unenclosed and undefined lands, without color of title, is insufficient to constitute the continuous, pedal, and actual possession to the extent of the claimed boundaries for the seven years that the law requires of an adverse possessor. Hill v. Surratt, 240 Ark. 122, 398 S.W. 2d 225. See also Dierks v. Vaughn, 131 Fed Supp. 219, affirmed 221 Fed. 2d 695 and the Arkansas cases therein cited.
To constitute effective adverse possession the possession must be continuous for the full period; if there is a break in the continuity, the adverse holding before and since the break cannot be tacked in computing the period of limitations. Brown v. Hanaver, 48 Ark. 277, 3 S.W. 27; Nicklace v. Dickerson, 65 Ark. 422, 46 S.W. 945. See also Byers v. Danley, 27 Ark. 77; Pulaski County v. State, 42 Ark. 118.
As already stated, Mr. Ruff had the burden of establishing his claim of title by adverse possession, so we now examine the evidence most favorable to his claim. Mr. Ruff identified a redemption deed to his grandfather, D. P. Ruff, dated in 1896 calling for “Pt NE NW Sec. 34 Twp. 9 Range 20 — 2 acres.” He said he interited the property as the last of the family In pointing out the land in litigation from an aerial photograph, Mr. Ruff said:
“This little triangle angle right here, Northwest, Northwest, and my property runs to these trees. There is some very large old trees right here that we use to use for shade when we was working there. We use to rent it out and turned off the road and came down here and angled into that property. About where the line between the Utley property use to be the Carter place and our property joins. Angled into that over this little triangle.”
Mr. Ruff said he had always regarded the highway as his west line. He said the south, east and north sides of his property had been fenced but there had never been a fence completely around it. He said the fence along his north line came out to where the trees stopped 30 or 40 feet from the highway. He said potatoes and cotton were raised on his “little patch” until about 1927 when he went into the Navy. He said he never knew of anyone claiming the property here involved until Utley erected his fence in 1970. He said that prior to 1970 he did not know where the quarter section lines were; that the highway had been moved from its previous location but that he had always claimed his land as extending to the highway. Mr. Ruff then testified as follows:
“Q. What is the description on your redemption certificate?
A. Well, it only shows 3 acres. 34, 9, 20. Part of the Northeast, Northwest.
Q. Now, are you claiming any property of the Northwest, Northwest?
A. Yes, sir.
Q. And how did you get title to that?
A. Adverse possession.
Q. And I take it you never had any deed or any other evidence of title?
A. No, sir.
Q. Have you fenced that property?
A. No, sir.
Q. You didn’t fence it along the edge of the road?
A. No, sir, Mr. Utley did that for me.
Q. Well, was there ever a fence running on your property line that would be your west property line?
A. Not tó my knowledge.
Q. You don’t recall any?
A. I don’t recall any fence being on the west side of our property.”
Mr. Ruff said he had two surveys made of his property and both surveys found his southwest comer to be in the highway. He said his two acre tract was located in the northeast quarter of the northwest quarter and he did not claim any property in the northwest of the northwest except the little triangle by adverse possession.
“[W]e just went across it, in an out of the property, as a good, easy natural place coming down from Dover with equipment. That was the first place you approached the property, and we just angled off the road into it by those big trees.”
Mr. Lawrence Campbell testified that he is 78 years of age and has been familiar with the Ruff land for about 60 or 70 years. He said he attempted to purchase the property at one time from Mrs. Elizabeth Ruff but she could not make up her mind about selling it. He said he always assumed the Ruff family owned the property, and never did hear of anyone else claiming it. He said he never did know where the property lines were located; that he didn’t get that far along in his negotiations with Mrs. Ruff to inquire as to the property lines; that he assumed the Ruff property extended west to the highway, but never did hear anyone claim one way or the other as to the property lines.
Mr. Newton Powers testified that about 1920 the Ruff two acres was planted in sweet potatoes. He said he plowed the potatoes up and stored them in working out a doctor’s bill he owed to Mrs. Ruff’s brother. He said he never heard of anyone claiming title to the land involved, and did not hear of Ruff claiming title to it until the past few days.
John Page testified that he was the administrator of the Carter estate (Utley’s grantor); that he never did know the exact location of the south line of the Carter property, but knew that Ruff claimed some property south of the Carter property. He said he also tried to purchase the property from Mrs. Ruff for a filling station. He said he understood that the Ruff property extended to the road but that he didn’t know where the lines were and that he doesn’t remember Mrs. Ruff telling him it extended to the road.
County Judge Grant testified that he was originally in the real estate business and had an open listing to sell all of Mr. Ruff’s land. He said he had one prospective purchaser for the land here involved, but after a survey by Mr. Ragsdale indicated that about half of the property fronted on the highway, the prospective purchaser refused to buy, because he wanted all the highway frontage.
Chancellor Richard Mobley testified that in 1961, before he was elected chancellor, he represented the Carter heirs in partitioning their property, a part of which was later sold to the appellant Utley. He said he had also represented the Ruffs from time to time and it was his understanding that both the Utley land and the Ruff two acres were bounded on the west by Highway 7. He said he never did hear of anyone making claim to any property east of the highway adjacent to the Ruff property. He said he prepared the deed of conveyance from. Carter to the appellant Utley and included in the description: “All of the Northwest quarter of the Northwest quarter of Section 34, Township 9 North, Range 20 West, lying East of State Highway 7.” He said there was some question as to the exact acreage owned by the Carters and this description was included in the deed to make sure that Utley would receive everything the Carters owned. He said he prepared the deed from the description in the abstract of title and the name “Ruff” was not mentioned in the abstract.
Mr. Ragsdale testified that he made a survey of the Carter land as testified by Chancellor Mobley but his testimony adds nothing in support of adverse possession of the land here involved. He did say the property was grown up in bushes and trees and did not appear to have been in use for a long time.
Mr. Ruff, on recall, testified that he had paid taxes on two acres in the northeast of the northwest since 1896. He said that when he went into the Navy in 1927, the two acre tract had been in cultivation as far back as he could remember. He then testified as follows:
“Q. When did you go in the navy?
A. January 22, 1927.
Q. Did you cultivate it?
A. Yes, sir.
Q. What crops did you raise on it?
A. Cotton.
Q. How far out did you come? Did you come to the road?
A. No, we came to the big trees that is setting just about on that quarter section line on the west side of our property. This little triangle that continues out to the road, we merely used that to go in an out of the property.
Q. Is that where you parked your team?
A. That’s right. Not only myself, but the renters that we rented that land in successive years. There is one particular large tree there and they parked their team and wagon when we were chopping cotton and picking cotton. We would take the teams there with a cultivator and cultivate it.
Q. But for a period of ten to fifteen years this was in cultivation?
A. More than that I’m sure.
Q. By cultivation, do you mean row crops?
A. Cotton and potatoes that I know of. Dr. Truette, my second uncle, rented it for many years from my grandmother and planted sweet potatoes in there.
Q. Is that the sweet potatoes Mr. Powers was talking about?
A. That’s correct. He worked it with day labor to collect some of his fees. The farmers owed him money and they would come in and do the work.” (Emphasis added).
Mr. Utley testified that he purchased and claims the property here involved in the northwest quarter of the northwest quarter of the section. He and surveyor Orton testified that the property was grown up in trees, vines and undergrowth to the extent that a bulldozer was employed for the purpose of clearing the property line for the purpose of a survey. The both testified they found an old fence row consisting of some posts and old wire running north and south for some distance from the north line of the property and about ten feet west of the true boundary line between the northeast quarter and the northwest quarter of the section. Mr. Utley said he built his fence on the true boundary line as established by Or-ton’s survey. We cannot say that the chancellor erred in accepting Orton’s survey as establishing the true division line between the northwest quarter and the northeast quarter of section 34 here involved.
The record indicates that the chancellor may have viewed some of Utley’s testimony as to his own exercise of dominion and rights of ownership over the property involved with considerable skepticism and for good reason. But the burden was on Ruff to prove his own title by adverse possession as previously defined in the decisions, supra. Mr. Ruff recognized his burden in this regard and readily assumed it, but as we view the record, he fell far short of proving adverse possession. He simply proved by several witnesses that they assumed his land extended west to Highway 7 and had never heard anyone claim that it did not. According to Mr. Ruff’s own testimony, he had always considered the highway as being the west boundary of his two acre tract. His testimony was straightforward and carries the ring of truth, but it falls far short of the proof required. He simply says in substance that his two acres in the northeast of the northwest were in cultivation prior to 1927 and the workers, while attending crops on the land, parked wagons and ate their lunches under a tree on the edge of the property here involved. He denied knowledge of any fence ever existing north and south on the west side of his property and said that he only used the property here involved in gaining access to the two acres in cultivation. Of course, use of a passageway over property of another does not affect title to the property outside the passageway and by the same token, the right to a passageway over the property of another is not dependent upon adverse possession of all the property over which the passageway extends.
As already pointed out, for Mr. Ruff to have prevailed in this case, it would have been necessary for him to have proven actual acts indicating his claim of ownership in the possession of the land involved, otherwise the true owner would never know that anyone was claiming adversely and the true owner’s cause of action would not accrue until he did have actual or constructive knowledge or notice that his land was being claimed by another. The possession in order to ripen into ownership must be actual, open, notorious, continuous (for seven years), hostile, exclusive, and accompanied by an intent to hold against its true owner.
The decree is reversed.
Harris, C.J., not participating. | [
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MoHaney, J.
In 1886 Samuel Kimbler died testate in Crawford County, Arkansas. By paragraph two of his will he devised the land in controversy to his two sons, William and Andrew, subject to the life estate therein given to his widow who predeceased him. In Bird v. Swearingen, 179 Ark. 402, 16 S. W. (2d) 569, we held that said sons, William and Andrew, under said paragraph of the will, took the fee simple title thereto. Prior to his death, William conveyed all his interest in said land t.o Andrew by deed. Thereafter Andrew died intestate leaving surviving him the appellees, Martha Boster (nee Kimbler), Luck Seabolt (nee Kimbler) and Clayton Kimbler, a minor, as his only children and heirs at law.
Frank Kimbler and Matilda Bird are children of said Samuel Kimbler, and brother and sister to said William and Andrew. In 1926, on the theory that the will above mentioned conveyed only a life estate to William and Andrew, they brought a suit to partition said land, claiming an interest therein. They caused a summons to be issued to the appellees directing them to attend a meeting on an adjoining farm tO' the land in controversy for the purpose of settling the Kimbler estate, the meeting to be held at 10 a. m., and caused a deputy sheriff in a remote part of the county to serve the appellees on the morning of the day set for said meeting. All the parties attended the meeting, and in addition appellant, the deputy sheriff, Mr. Seabolt and the attorney representing plaintiffs in the partition suit and appellant in this appeal, also attended. Through representations there made appellees were induced to execute a deed to appellant, prepared at the time by the attorney then present, in which Frank Kimbler and Matilda Bird joined, for a consideration of $666.66 to each of the appellees, $500 each to Kimbler and Bird and $500 to be paid Nannie Cowen, a sister of Kimbler and Bird, whose address was unknown.
About two months later, appellees brought this action to cancel the deed executed by them as having been obtained through misrepresentation, fraud, duress and as the result of a conspiracy on the part of all the other parties present to cheat them 'out of said land.
The trial court overruled a demurrer to the complaint, and, after hearing the evidence, canceled the deed, and offset the rents and profits against the betterments made by appellant. The case is here on appeal by the purchaser. .
The demurrer was properly overruled, as the complaint stated a good cause of action. It is said there was no tender made in the complaint of the money received from the sale, but the record discloses that the two adult plaintiffs paid the money they received into court, and that the money paid to the guardian of the minor was held subject to the order of the court. So the purchase money received by them was actually tendered and in court.
We.are also of the opinion that the court.correctly held that the deed was obtained by fraud, to which appellant was a party, and that it should be canceled. The uncles and aunts of appellees had no interest in this land as the fee simple title passed from Samuel Kimbler to his two sons, William and Andrew, and by deed from William to Andrew. Bird v. Swearingen, supra. Therefore when Andrew died intestate, the whole title passed to his children, the appellees, free from any claims of his brother and sisters as heirs of Samuel Kimbler. As to appellee, Clayton Kimbler, it is admitted that he was a minor at the time he signed the deed, and that he has the right to rescind, even in the absence of any fraud or misrepresentation. As to the other two adult-appellees, who were summoned to be present on the Larue place at 10 a. m. of the morning of the service of notice, we think the evidence clear, satisfactory and convincing in favor of the finding of the court that they were induced to execute the deed to appellant through ignorance of their rights and through fear of loss of their entire inheritance in litigation. We think it unnecessary to set the evidence out in detail, but suffice it to say we have carefully considered it and find that it more than preponderates in favor of the findings of the court — that it complies with the clear, satisfactory and convincing rule relative to the cancellation of deeds. The circumstances under which the meeting was arranged,-the abuse of the process of the court t.o obtain the meeting, the possession of the process by appellant, his arrangement with the remote deputy to serve it, the fee of $25 paid the deputy by appellant to serve it, the youth and inexperience of the minor, the inexperience and illiteracy of the two adult appellees, the threats of litigation which had already been instituted by three persons who had no title whatever, and other facts and circumstances that might be mentioned lead inevitably to the conclusion reached by the court, and that appellant was a party to the whole transaction.
We also conclude that the court properly offset the rents and profits against the betterments made by appellant while in possession of the land. The abstract of the evidence before the master is too meager to justify us in setting’ aside the decree in this regard.
We find no error, and the decree is accordingly affirmed. | [
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George Rose Smith, Justice.
The appellee was charged by information with the offense of criminal libel. The information was amplified by a bill of particulars filed by the State at the defendant’s request. The trial court sustained a demurrer to the information and dismissed the charges, on the ground that the statute defining the offense is so vague as to be unconstitutional. Ark. Stat. Ann. § 41-2401 (Repl. 1964). The constitutionality of the statute on its face, as it applies to this information and bill of particulars, is the issue now before us.
The information charged that Weston, unlawfully and maliciously, in writing in a publication identified as the Sharp Citizen, blackened the memory of Larson Dickey, Sr., deceased, and defamed Larson Dickey, Jr., a living person, by the publication of writings tending to impeach their honesty, integrity, veracity, or reputation and thereby expose them to public hatred, contempt, and- or ridicule. In response to the motion for a bill of particulars the State filed a copy of the article, apparently an editorial, which gave rise to the charges.
That article, using the “editorial we,” states that Weston has received letters indicating that “Junior” Dickey and Les Anderson, the county judge of Sharp County, are organizing the citizens of Cave City “to place another advertisement in the newspapers all around Cave City about how the Sharp Citizen ought to be run out of business.” The article states that the two men will have to find a scribe to handle the paper work, because they cannot read or write. The article goes on to say: “Then, too, they will have to consider the cost of all those ads. The price would be greater than Junior Dickey could lay his hands on, even if he ran his still (the one he inherited from his father) every night for a month.” The article contains several other paragraphs, but we have given what we regard as the pertinent assertions.
The ownership or possession of an illicit still is a felony, punishable by confinement for not less than one year nor more than three years. Ark. Stat. Ann. §§ 48-936.1 and 48-936.2 (Supp. 1971 and Rep). 1964).
The statute now in question, which is said to be unconstitutionally vague, was adopted as part of the Revised Statutes of 1838 and reads as follows:
A libel is a malicious defamation, expressed either by writing, printing, or by signs or pictures, or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, veracity, virtue or reputation, or to publish the natural defects, of one who is living, and thereby expose him to public hatred, contempt and ridicule. [Section 41-2401.]
Weston does not argue, and the Supreme Court of the United States has not held, that the guaranties of the First Amendment preclude the State from declaring the publication of a libel to be a criminal offense. Rather to the contrary, both the appellant and the appellee quote from and rely upon Professor Leflar’s article, Legal Liability for the Exercise of Free Speech, 10 Ark. L. Rev. 155 (1956), where the need for restrictions upon completely unfettered speech is recognized:
No responsible citizen can intelligently argue that the individual’s right to free speech could be absolute, in an ordered society made up of human beings . . . No society yet organized by mankind has been willing to permit the completely free and untrammeled communication of every possible idea that might emerge through the lips or pens of those who seek for one reason or another to affect their fellows by the use of words.
Ip TP
We are long accustomed to rules of law under which a man is legally liable for his harmful acts. . . . That words can be as harmful as physical acts nobody will deny. The fact of course is that words are acts, as much the voluntary product of a deliberate plan to engage in a course of conduct as is the swinging of a fist or the exertion of pressure on the gas pedal of a motor car.
Thus the narrow question is whether our statute, on its face, is so lacking in precision as to fall fatally short of defining the conduct that is being prohibited. We are unwilling to strike down the statute upon that ground. Libel, both civil and criminal, is notoriously difficult of exact definition. The definitions of libel in publications that seek the greatest possible precision do not differ materially from our statutory definition. Webster’s New International Dictionary (2d ed., 1934); Bouvier’s Law Dictionary (3d rev., 1914); Restatement of Torts, § 559 (1938). A number of other states have adopted statutes similar to ours. We have found no case holding such a definition to be unconstitutionally vague.
Counsel for the appellee do not suggest in their brief any definition of libel that would, in their opinion, withstand an attack based upon the First Amendment. The formulation of such a definition could hardly give effect to the intention of the legislature. That is, the more precise and inflexible the definition becomes, as by making it a libel to falsely charge another with being a liar or a thief, the more likely it is that the statutory language would fail to encompass many, many instances of slightly different language that the legislature would also make punishable if it were practical to do so. Thus the alternative to the general language now contained in the statute would be an enactment so specific that it would necessarily discriminate between utterances so similar as to be equally culpable.
The appellee devotes much of his brief to a discussion of the line of recent Supreme Court decisions that began with New York Times Co. v. Sullivan, 376 U.S. 254 (1964). (For an analysis of those cases see Note, 47 Notre Dame Lawyer 153 [1971].) Those decisions are not now pertinent to the case at hand, which comes to us upon demurrer to the information. There the court’s emphasis was upon the plaintiff’s burden of proving actual malice and upon the public status of the complaining party or the public interest in the subject matter of the asserted defamation. Here the existence and effect of actual malice are elements to be developed by the proof rather than to be set out in the information. Similarly, whether the asserted ownership or possession of a still is a matter of pressing public interest cannot be determined upon demurrer to the charges.
The trial court was in error in sustaining the demurrer. Inasmuch as the appellee has not yet been placed in jeopardy, State v. Gill, 33 Ark. 129 (1878), the judgment is reversed and the cause remanded for further proceedings. | [
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Kirby, J.,
(after stating the facts). Appellant insists that the killing of the child was an unavoidable accident, and that the court should have directed a verdict and erred in giving said instructions, and in any event that the damages awarded are excessive.
No witness saw the little boy in time to give warning or do anything to prevent his being struck by the automobile, in front of which he ran following the larger boy across the street. The man who called the boys, his own eleven-year-old son and the little fellow playing with him, to come home from the opposite side of the street, and turned after starting back into the house to see if they were coming, saw him about three or four feet in front of the car when it was inevitable that he would be run down. The owner of the car didn’t see him until he was in front of the car; while the driver, watching the larger boy, who was ahead of the small boy, from the time he crossed in front of the car until he was past all danger, did not see the small boy until after he had been struck by the car. The law of the case has been well settled in the several decisions of this court defining the relative rights and reciprocal duties of persons using the public streets and highways as pedestrians or in operation of automobiles and other cars or vehicles thereon, each being bound to the exercise of ordinary care for his own safety and the prevention of injury to others in the use thereof. Millsaps v. Brogdon, 97 Ark. 469, 134 S. W. 632, 32 L. R. A. (N. S.) 1177 ; Minor v. Mapes, 102 Ark. 351, 114 S. W. 219, 39 L. R. A. (N. S.) 214 ; Butter v. Cabe, 116 Ark. 26, 171 S. W. 1190, L. R. A. (N. S.) 1915C, 702 ; Texas Motor Co. v. Buffington, 134 Ark. 323, 203 S. W. 1013 ; Oliphant v. Hamm, 167 Ark. 167, 267 S. W. 563 ; Snow v. Riggs, 172 Ark. 835, 290 S. W. 591 ; Gates v. Plummer, 173 Ark. 27, 291 S. W. 816 ; Murphy v. Clayton, 179 Ark. 225, 15 S. W. (2d) 391.
Ordinary care, however, is a relative term, its interpretation depending upon the facts and circumstances of each particular case; and, although drivers of automobiles and pedestrians both have the right to the use of the streets, the former must anticipate the presence of the latter and exercise reasonable care to avoid injuring them, care commensurate with the danger reasonably to be anticipated. Minor v. Mapes, supra ; Snow v. Riggs, supra ; Texas Motor Co. v. Buffington, supra ; and Murphy v. Clayton, supra.
“However, the doctrine that drivers or owners of motor vehicles are not insurers-against all accidents ap plies in the present state of the law to injuries to children. If no one can reasonably foresee the sudden presence of a child in the path of an automobile, so as to prevent a collision with him, the driver or his master, proceeding at a lawful speed and being otherwise in observance of the traffic regulations, will not be liable for injuries from such a collision.” 1 Blashfield, 'Cyclopedia of Automobile Law, p. 641.
The instructions complained of, Nos. 1 and 2, the first of which contained no direction to the jury, were no more than an application of the principles of law, as herein declared, to the facts of the case as made, and no error was committed by the court in giving them.
Although it is true that the chauffeur was shown to be an experienced and careful driver, never before having injured any one by the movement of his car, and, although he was not driving it at an excessive rate of speed, he did not see the little boy before striking him, his attention being concentrated on the larger boy, who also came from behind the standing car on the west side of the street, passed in front of his car and on to the east side of the street, fearing lest he might attempt to return and be injured. He knew that people lived along the street, and that children played about and crossed over it, saw the larger boy run across the street in front of his car from west to east and watched him until he got entirely across, not looking to see whether other children were attempting to follow him across; and the jury could have found that he was negligent in so doing, not exercising reasonable care to avoid injury to the little boy, following the other one, whose presence he should have anticipated.
It is next contended that the damages awarded are excessive, and this contention must be sustained. Where the death of a child, incapable of earning anything or rendering services of any value at the time of its death, as in the present case, is the subject of the action, the value of the probable future services to its parents during its minority must, in the nature of things, be a matter of conjecture and can be determined by the jury without the testimony of witnesses. L. R. & Ft. S. Ry. Co. v. Barker, 29 Ark. 41 ; Hines v. Johnson, 145 Ark. 602, 224 S. W. 989.
In the case of St. L. I. M. & S. R. Co. v. Freeman, 36 Ark. 41, we held (quoting syllabus) that “the measure of damages to a parent for killing his child is the pecuniary value of his services during minority, and the cost and expense incurred by the parent on account of the injury, less the reasonable and necessary expense of raising it; the value to be such as is ordinary with children in like condition and station in life, without regard to the relationship between them, or to the parent’s feelings or the child’s suffering.”
Our statutes (§ 7085, O. & M. Digest) provides that no child under the age of 14 years shall be employed or permitted to work in any remunerative occupation, except during school vacation when they may be employed by their parents in occupations controlled by them; and parents are required to- send their children between the ages of 7 and 15 years to school (§ 9042, O. & M. Digest).
In Interurban Ry. Co. v. Trainer, 150 Ark. 19, 233 S. W. 816, the court held the damages recovered, $5,000, by the parents for pecuniary loss for the services of their child, a girl eleven years old, excessive and reduced the amount to $’2,500. It was there said: “In determining what the pecuniary value of the services of a child of tender age would be to its parents between the time of its death and the age of maturity, the jury should take into consideration the position in life of both parents and child, the occupation of the parents, their physical condition, their circumstances, and also the sex, age, physical and mental condition of the child. While the law is liberal in allowing the jurors to voice their own opinions and conclusions as to the pecuniary value of the services without any specific proof or opinion of such value by affirmative evidence, yet such conclusion as reflected by their verdict must be predicated upon the facts and circumstances as above detailed and accord with what rea sonable men in viewing sucb facts and circumstances would decide.”
In L. R. & Ft. Smith Ry. v. Barker, 33 Ark. 350, 34 Am. Rep. 44, one of our earliest cases on tbe subject, tbe court in reversing a .judgment on a Verdict of $4,500 as excessive, less than $2,300 being finally recovered, said: “We are satisfied that if the facts of the case were submitted to one hundred impartial men, of sound, discriminating judgment, of experience and observation in the raising of children, properly instructed in the law as to the measure of damages, ninety-nine, if not all of them, would say that the damages awarded in this case for loss of probable service were excessive, and such is our judgment.” It may be observed also that the record herein shows that the jury returned a verdict for $1,000 damages on the first trial of the instant case.
The little child herein was undersized and undernourished, according to testimony, incapable of earning anything for some years, and the court is of opinion that the recovery of a greater amount herein than the judgment was reduced to in the Trainer case, supra, cannot be permitted to stand. The judgment will therefore be reduced to the said sum of $2,500, and, as modified, it will be affirmed. It is so ordered. | [
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Robert L. Brown, Justice.
The appellant, Kenneth Holloway, and his wife, Peggy Holloway, ran a day-care center in North Little Rock called Peggy’s Day Care. The appellant was charged with and convicted of four counts of rape, four counts of sexual abuse, and one count of terroristic threatening committed against nine children enrolled at the day-care center. He was sentenced to life imprisonment for each of the rape counts plus 120 years for the sexual abuse, to be served consecutively. No time to serve was given on the conviction for terroristic threatening.
The appellant now raises multiple issues on appeal: (1) whether the evidence was sufficient to support a conviction of sexual abuse in the first degree relating to victims K.H. and J.R.; (2) whether the trial court erred in permitting the state to reopen its case for six victims to identify Holloway after he made a motion for a directed verdict at the close of the state’s case; (3) whether the trial court erred in permitting the state to amend Counts VII and VIII of the felony information from attempted rape to rape; (4) whether the trial court erred in finding L.S., age four, and Je.Ca., age six, competent to testify. The issues raised are without merit, and we affirm.
An investigation of Peggy’s Day Care began in 1991 after several children who had been enrolled there reported that the appellant had sexually abused them. Following an investigation, an information was filed charging the appellant with two counts of rape, six counts of sexual abuse, and one count of terroristic threatening committed against several children who had been enrolled at the day-care during the time frame from 1989 to 1991.
On March 12, 1992, an omnibus hearing was conducted to determine the competency of the victims. The following witnesses were found competent to testify: L.S., age four; J.C., age five; Je.Ca., age six; K.H., age eight; R.W., age nine; Ja.Ca., age nine; S.G., age ten; H.C., age twelve; K.K., age twelve; and J.R., age twelve. At the competency hearing, the prosecutor announced that, based on the testimony of two victims, the state planned to nolle pros Counts VII and VIII charging the appellant with attempted rape and refile both counts as rape. The state instead amended the two counts on March 20, 1992, and added a count alleging that Holloway was a habitual offender.
The case went to trial on April 10,1992, and a motion for a mistrial was granted due to potential prejudice on the part of a juror. On June 17, 1992, the trial began a second time but was halted due to the trial court’s recusal. The trial commenced a third time on June 30,1992, and was prosecuted over three days to conclusion.
Multiple victims testified about various sexual improprieties by the appellant, whom they called “Mr. Kenny.” The state then rested. Holloway moved for a directed verdict on the basis that several victims had not specifically identified him in the courtroom as the culprit. The trial court allowed the state to reopen its case and recall six victims who made courtroom identifications. At the conclusion of the case, the jury returned a verdict of four life sentences on four counts of rape and 120 years on four counts of sexual abuse in the first degree, to run consecutively.
I. SUFFICIENT EVIDENCE REGARDING K.H. AND J.R.
We begin by considering the sufficiency of the evidence relative to the two counts involving K.H., age eight, and J.R., age twelve.
K.H. testified that she was eight years old and that Holloway had touched her “private spot” in front, which she called her “PG,” and her “private, spot” in back, which she called her “bottom.” She added that Holloway told her not to tell, but she did complain to Peggy Holloway. The appellant urges that this testimony fails the test of sexual contact.
With respect to J.R., age twelve, Holloway contends that she was indefinite about his touching her breasts. He points out that J.R. testified at the competency hearing that he came close but did not actually touch her breasts.
The testimony reveals that J.R., who was twelve years old at trial and presumably ten years old two years earlier when the incident occurred, described the circumstances of the touching at trial:
Q. Did he ever do anything to you?
A. Yes.
Q. Will you tell the jury about that?
A. I asked him. My back was itching one day, and I asked him to scratch it, and he did. And after a few minutes, I told him to stop and he didn’t. And then he started coming around, and he started rubbing at first under my shirt. And then he started coming around to my side, and then he started coming around to my breast area.
Q. And what did he do?
A. He started trying to feel or touch.
Q. Did you have a shirt on?
A. Yes.
Q. Okay. Where was this in relation to your shirt?
A. Up here (Indicating).
Q. Was it on the inside or the outside of your shirt?
A. Inside.
Q. Okay. What did you do?
A. I started to moving, and then I started to move. Then Peggy drove up, and he quit, because he said Peggy was here, and he quit.
Q. Okay. Can you tell us more about that? What he did when his hand started coming around?
A. He was rubbing, and he was trying to feel.
Q. Okay. Can you tell the jury what he was trying to feel?
A. He was trying to feel my breast.
Q. Okay. And did he do that?
A. He didn’t get all the way around, but Peggy drove up before he could.
Q. Okay. Did he touch your breast?
A. He did kind of.
Q. I need you to — When you say kind of, what do you mean?
A. He didn’t get all the way around on it, but he got to the side.
She then admitted that she was not wearing a bra at the time. On cross-examination, she repeated that he did touch her breasts, but said again that he did not get to the front but got to the side. She admitted that her breasts were not developed like “a full grown lady.” She said that she had testified that Holloway had not touched her breasts at the competency hearing because she was scared.
The elements of sexual abuse in the first degree are fixed by statute:
(a) A person commits sexual abuse in the first degree if:
(3) Being eighteen (18) years old or older, he engages in sexual contact with a person not his spouse who is less than fourteen (14) years old.
Ark. Code Ann. § 5-14-108(a)(3) (1987). “Sexual contact” is defined as “any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, or buttocks, or anus of a person or the breast of a female.” Ark. Code Ann. § 5-14-101(8) (1987).
The standard of review on appeal is whether there is any substantial evidence to support the verdict that the appellant touched these two girls for purposes of sexual gratification, viewing the evidence in the light more favorable to the state as appellee. See Green v. State, 310 Ark. 16, 832 S.W.2d 494 (1992).
In the case of K.H., even though she used her own terms — “private spots” and then “bottom” and “PG” — that is sufficient for a jury to believe that a sexual offense occurred, if she describes where those parts are. Stewart v. State, 297 Ark. 429, 762 S.W.2d 794 (1989). She did that in this case when she said her “PG” was in the front and her bottom was in the back. J.R. testified that the appellant touched her on the side of her breasts, and the jury was free to believe or disbelieve this testimony. They chose to believe it. In both cases, the touching of the body parts constituted sexual contact under the statute, and this court may assume that the appellant’s purpose in touching the girls was for sexual gratification without specific proof that he was so motivated. See McGalliard v. State, 306 Ark. 181, 813 S.W.2d 768 (1991). We hold that sufficient evidence supporting the convictions existed on both counts.
II. REOPENING OF CASE
Holloway argues next that the trial court erred in letting the state reopen its case to allow six victims to identify him after he had made a motion for a directed verdict. He concedes that this court has held that the decision of whether to permit the state to present additional witnesses after it has rested is discretionary with the trial judge. However, he contends that here it was an abuse of discretion due to the prejudice that resulted from having six victims single him out in rapid succession.
The appellant is correct that we have held that the trial court has discretionary power to permit the state to reopen its case after the parties have rested and, further, that a trial court’s decision to reopen a case will not be reversed absent an abuse of that discretion. Sanders v. State, 310 Ark. 510, 838 S.W.2d 359 (1992); George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991); Cameron v. State, 278 Ark. 357, 645 S.W.2d 943 (1983). The reasoning behind this rule is to permit omitted or overlooked evidence to get to the jury before it returns a verdict, when the defendant is not surprised by the introduction or otherwise prejudiced or placed at some disadvantage that cannot be overcome. Id.
Here, there was no surprise. Each victim had referred to the appellant as “Mr. Kenny” or specifically identified him. There could be little doubt that the reference by nickname was to anyone other than the appellant, Kenneth Holloway. Accordingly, the reopening of the case was to further a point that was all but obvious. In this regard, we have said that identification can be inferred from all the facts and the circumstances that are in evidence. Williams v. State, 308 Ark. 620, 825 S.W.2d 826 (1992); Becker v. State, 298 Ark. 438, 441, 768 S.W.2d 527 (1989). Hence, precise in-court identifications in addition to testimony about what “Mr. Kenny” did may not have been necessary, since he was the sole defendant and none of the victims, though of tender years, pointed him out as the wrong man. See Becker v. State, supra. Nevertheless, we hold that because the appellant was not surprised or otherwise disadvantaged by the testimony of the witnesses recalled by the state, the trial court did not abuse its discretion by reopening this case.
III. AMENDED COUNTS
The original felony information, filed on November 12, 1991, charged the appellant in Counts VII and VIII with attempted rape of H.C. and K.K. The amended felony information, filed on March 20,1992, changed those counts to rape after the girls’ testimony at the competency hearing. Holloway now claims that this amendment violated, Ark. Code Ann. § 16-85-407(b) (1987), which provides that an indictment shall not be amended so as to change the nature or degree of the offense charged.
Holloway rightly invokes the statute on the basis that the degree of the offenses was changed when the two counts were amended to rape. However, we can detect no prejudice resulting from the amendment, and this court will not reverse a conviction in the absence of some showing of prejudice. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984). Furthermore, the amendments resulted in no surprise to the appellant. The felony counts were amended on March 20, 1992, and the case was not tried until June 30, 1992, allowing almost three months for any adjustment in preparation. The appellant has not argued that he did not have adequate time to prepare due to the amendment; nor did he seek a continuance. We have held previously that we will not presume prejudice when a defendant fails to move for a continuance or claim surprise after he is put on notice that the state plans to amend an information. Mitchell v. State, 306 Ark. 464, 816 S.W.2d 566 (1991); Harrison v. State, 287 Ark. 102, 696 S.W.2d 501 (1985); Wilson v. State, 286 Ark. 430, 692 S.W.2d 620 (1985). There was no prejudice to the appellant in allowing the trial to go forward.
IV. COMPETENCY OF CHILD WITNESSES
Holloway claims that the trial court erred in finding L.S., age four, competent to testify because she was not able to demonstrate that she knew the difference between the truth and a lie and also because she did not have good recall of the events. He argues that L.S. could not remember how long it had been since she was at the day-care center, where the Holloways used to take her on excursions, or anything else that happened while she was at the day-care center. In addition, though she testified that the appellant made her perform oral sex, she could not remember how it happened and did not want to describe the circumstances. Finally, at trial L.S. testified that she did not know what Holloway’s “private” was or the difference between the truth and a lie.
With regard to Je.Ca., age six, Holloway claims that at the competency hearing she could not give an example of a lie to demonstrate that she knew the difference from the truth. Secondly, she changed the location of where Holloway sexually molested her in her testimony at the competency hearing, and she could not remember what she was wearing or what the appellant was wearing or many of the details.
We have previously set out the procedure and guidelines for determining the competency of a witness:
A trial court must begin with the presumption that every person is competent to be a witness. A.R.E. Rule 601. The burden of persuasion is upon the party alleging that the potential witness is incompetent. To meet that burden the challenging party must establish the lack of at least one of the following: (1) the ability to understand the obligation of an oath and to comprehend the obligation imposed by it; or (2) an understanding of the consequences of false swearing; or (3) the ability to receive accurate impressions and to retain them, to the extent that the capacity exists to transmit to the factfinder a reasonable statement of what was seen, felt or heard. (Citing authority.) The competency of a witness is a matter lying within the sound discretion of the trial court and, in the absence of clear abuse, we will not reverse on appeal. (Citing authority.)
Logan v. State, 299 Ark. 266, 272, 773 S.W.2d 413, 416 (1989); see also Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986). We have applied the same presumption and standards in deciding the capacity of a child witness to testify. See, e.g., Richard v. State, 306 Ark. 543, 815 S.W.2d 941 (1991); Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988); Jacksonv. State, supra. We further have observed that the evaluation of the trial court in these cases is particularly important due to its opportunity to observe the child witness and to assess the child’s intelligence and understanding of the need to tell the truth. Jackson v. State, supra.
In this case, L.S., age four, testified at the competency hearing that she would tell the truth. She identified a piece of paper as yellow and blue and testified that it would be a lie to say it was black. She said that she would get in trouble with her parents if she told them a lie. She also testified that cartoons are make-believe and people are real. The trial court found that though she was imprecise in her testimony, she understood the oath and the ramifications if she lied. When asked if Holloway did something to her, the court noted that she specifically said what it was he did. At trial, she identified an example of a lie — again with colors — but could not give an example herself and could not explain the difference between a mistake and a lie or truth and a lie. She repeated her identification of cartoons as make-believe and people as real. She testified that the appellant made her “suck his private,” which she described as a hot dog.
The testimony of Je.Ca., age six, was similar. She testified that a piece of paper was yellow and that it was a lie to say it was black and that a lie would get her in trouble. Like L.S., she knew that cartoons were make-believe and that her parents were real. She could not give an example of a lie without reference to a color. She testified that she had been touched “on the private” by Holloway and pointed between her legs. The court found her competent to testify. Subsequently at trial, she could not explain what a lie was and could not say what make-believe meant, but could give examples of both. She testified that Holloway touched her “private” and that he made her touch his “privates.”
This case is somewhat complicated by the fact that a different judge presided at trial from the judge at the competency hearing. Nevertheless, neither judge disallowed the girls’ testimony on competency grounds. There was no error in this regard.
Both girls could identify examples of lying and make-believe at the competency hearing and trial, and each knew the consequences of telling a falsehood. There was, to be sure, some imprecision in the details of the surrounding circumstances and an inability to define concepts such as “truth.” But each girl knew she would get in trouble if she told a lie.
With respect to the essentials of their testimony, they specifically described the requisite touching in one case and oral sex in the other. We have held that a child was competent to testify even when his testimony was not a model of lucidity. Bowden v. State, supra. Moreover, we conclude, as the trial court undoubtedly did, that the variances in testimony did not warrant a finding of incompetence but were for the jury to resolve. See McArdell v. State, 38 Ark. App. 261, 833 S.W.2d 786 (1992). We affirm the trial court’s rulings.
The record has been examined in accordance with Ark. Sup. Ct. R. 11(f), and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.
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John I. Purtle, Justice.
Appellant was granted a divorce in Sebastian County, Arkansas on September 9, 1981. The court withheld disposition of the property until March 30, 1982, at which time appellant was ordered to return to the appellee certain items of furniture and furnishings held by the appellant. The appeal is from the later order; it is argued that the trial court erred in awarding the appellee any property held by appellant. We are of the opinion that the trial court acted properly and affirm.
The parties to this action were married in 1955. Shortly thereafter the appellee inherited some furniture and furnishings from her mother. It is these items with which we are concerned. In 1973 appellant, a foreign service officer with the United States Department of State, was reassigned from Honolulu, Hawaii to Washington D.C. The appellee and the children stayed in Hawaii. Appellant took an assignment to Bogota, Colombia, and was not accompanied by appellee and the children. He returned to Washington in 1975 and the furniture was shipped from Hawaii to him in Washington during that year. On April 2, 1976 appellant filed suit for divorce in Virginia. Appellee filed no answer and appellant was granted a divorce on June 18, 1976. He married again on September 11, 1976 and a child was subsequently born to this marriage. On June 16, 1978 appellee petitioned the Virginia court to set aside the Virginia divorce and later asked for separate maintenance. The divorce was set aside on January 6, 1981. At that time appellant was stationed at Fort Chaffee, Arkansas. On March 19, 1981 he filed suit for divorce in Sebastian County and the divorce was granted on September 9,1981. However, the court withheld a decision on the appellee’s claim for the property in the possession of the appellant. On March 30, 1982 the remaining issues were heard, and appellant was ordered to return, freight pre-paid, certain items of personal property to the appellee. It is from this order that the appellant brings his appeal.
Appellant’s argument in chief is that appellee was barred from asserting her counterclaim because of the statute of limitations. His argument is founded upon the fact that the property was shipped to him in Washington D.C., in 1975, with the express knowledge and consent of the appellee. Therefore, he argues that the statute of limitations ran prior to the commencement of her 1978 suit to set aside the Virginia divorce.
The sole issue before this court is whether appellant is bound to return to appellee the items of property now in his possession which were inherited by the appellee during the marriage. When the divorce was obtained in Virginia the property rights between the parties were not settled. Apparently the Virginia court granting the divorce had no authority to dispose of personal property owned by either of the parties. The trial court in Sebastian County did not attempt to rule on the legal effect of the proceedings in the state of Virginia nor did it address the question of the running of the statute of limitations. The appellant commenced an original action in this state, therefore, the case is legally no different from any other divorce proceeding in Arkansas under the same or similar facts. The Arkansas statute of limitations could not begin to run until notice of the Arkansas divorce action was given to the other party.
Under the circumstances we think the court properly proceeded pursuant to the provisions of Ark. Stat. Ann. § 34-1214 (Supp. 1981). This is the controlling statute relating to disposition of this property. The trial court found that the items were neither gifts to appellant nor were they abandoned by the appellee. There being no evidence in the record, nor in the appellant’s brief, that the property in question was not inherited by the appellee, we must affirm the decree of the chancery court. | [
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Hart, C. J.
A. W. Sloss prosecutes this appeal to reverse a decree of the -chancery court dismissing a complaint filed by him against Walter E. Taylor, State Bank Commissioner, to compel the allowance of a set-off upon a note due by him to the American Exchange Trust Company, which had been placed in the hands of said hank commissioner for liquidation.
According to the allegations of the complaint, A. W. Sloss was the president of the Southern Life Insurance Company, and, in compliance with a statute of the State, had on deposit with the State Insurance Commissioner of Arkansas certain certificates of deposit in the American Exchange Trust Company in the aggregate sum of $5,100. On the 17th day of November, 1930, the American Exchange Trust Company elected to exercise the five days’ suspension period allowed under § 717 of Crawford & Moses’ Digest. On the same day, the State Insurance Commissioner demanded'of the Southern Life Insurance Company that it substitute other securities for the certificates of deposit of said bank on deposit with the insurance department. In compliance with the demand of the Insurance Commissioner, A. W. Sloss took an assignment of the certificates of deposit of the bank in the sum of $5,100 and deposited with the Insurance Commissioner his own private securities in place thereof. The exchange of the securities was made in due course of business with the approval of the Insurance Commissioner on the 19th day of November, 1930, being a date two days after said bank had elected to exercise the five days’ suspension rights given it under the statute. A. W. Sloss was indebted to the bank in the sum of $16,100, balance due on a certain note given by him to the American Exchange Trust Company. The note was past due, and A. W. Sloss offered to pay it, but demanded that he be allowed to set off the certificates of deposit aforesaid aggregating $5,100. The State Bank Commissioner, who took charge of the bank at the conclusion of the five days’ suspension period and who is still in charge of its affairs as an insolvent bank, declined to accept said certificates of deposit as a credit and part-payment of the note from plaintiff to the American Exchange Trust Company.
The chancery court sustained a demurrer to the complaint of the plaintiff praying for the allowance of said set-off and, upon the plaintiff’s refusal to plead further, dismissed his complaint for want of equity.
The correctness of the decision of the chancery court depends upon the construction to be placed upon § 717 of Crawford & Moses’ Digest. The part of the section necessary to a determination of the issues raised by the appeal reads as follows:
“A bank shall be deemed insolvent within the meaning! of this act upon the existence of the following facts: (1) If it suspends payment of checks drawn against deposits payable on demand and fails to resume payment thereof within five days; provided, that any clearinghouse association or any other similar association of banks or bankers, by and with the consent and approval of the bank commissioner, may agree to suspend payment of demand obligations for such length of time as may be deemed proper when such action is deemed necessary or proper by a majority of such banks or bankers forming such association, in order to protect the stockholders and creditors of any bank or banks, or to avert financial panics.”
In the construction of this statute, this court has held that where a bank becomes insolvent, a depositor who is indebted to the bank may offset the amount of his deposit in an action by the receiver or assignee to recover on the indebtedness due the bank. Steelman v. Atchley, 98 Ark. 294, 135 S. W. 902, 32 L. R. A. (N. S.) 1060 ; Funk v. Young, 138 Ark. 38, 210 S. W. 143, 5 A. L. R. 79 ; Hughes v. Garrett, 150 Ark. 404, 234 S. W. 265 ; and United States Fidelity & Guaranty Co. v. Maxwell, 152 Ark. 64, 237 S. W. 708. In the case last cited, it was held that where a bank commissioner, as receiver of an insolvent bank, sued a guaranty company on the fiduciary bonds of two of its employees, defendant was not entitled to offset the amount of a deposit it had in the bank which it had guaranteed the depositor and had paid to him after the bank’s insolvency, taking an assignment of the depositor’s claim. The reason was that to permit a debtor of an insolvent bank to offset a claim assigned to it after the bank passed into the receiver’s hands would be allowing a preference against an insolvent corporation, which is forbidden by § 1798 of Crawford & Mioses’ Digest. Thus it will be seen that the general rule in this State is that the right to set-off against an insolvent bank is governed by the state of facts existing at the time of insolvency and not by the conditions that might be created afterwards. 'See also Scott v. Armstrong, 146 U. S. 499, 13 S. Ct. 148 ; and Yardley v. Philler, 167 U. S. 344, 17 S. Ct. 835.
The effect of these decisions above cited is that the State Bank Commissioner is the statutory assignee of the bank, and, like a\ receiver of an insolvent bank, takes the funds in the plight in which they were held by the bank immediately prior to his appointment. See also Davis v. Elmira Savings Bernik, 161 U. S. 275, 16 S. Ct. 502.
Under % 1798 of Crawford & Moses’ Digest, which forbids preference by insolvent corporations, the moment a bank or other moneyed corporation becomes insolvent the rights of all its creditors attach equally to- all its assets, and whoever takes an assignment of its certificates of deposit afterwards, being indebted to such bank, takes them subject to this right of all the creditors to share equally in the assets of the bank. The statute intends to secure to the creditors collectively and exclusively all the assets of the corporation the moment the insolvency takes place. When a receiver is appointed or the bank commissioner takes possession of the assets of the bank under the statute, there is a conclusive presumption of insolvency.
In the case at bar, the bank suspended business for five days, as it had a right to do under § 717 of the Digest. After the bank had suspended business and closed its doors, the plaintiff, A. W. Sloss, took an assignment of certificates of deposits of said bank in the sum of $5,100, and, by this suit, attempts to use them as a set-off to a note which he owed the bank. Before Sloss procured an assignment of the bank certificates, the bank held the note against him; and, if the bank was insolvent, the note belonged equally to all the creditors of such bank and the certificates of deposit could not he used as a set-off in whole or in part by 'Sloss in the payment of his own debt to the bank. If Sloss could be allowed to purchase or receive certificates of deposit of an insolvent bank and with them satisfy a debt of his own to the bank and take from the assets of the bank this amount, then the policy of the statute forbidding preferences and intending to secure equality between all the creditors of insolvent corporations would be defeated. It is not claimed that the bank was not insolvent in fact at the time it suspended payment and closed its doors for five days under the provisions of § 717 of the Digest, When the bank closed its doors and suspended business for five days under the statute, this of itself was sufficient evidence to warrant a finding of insolvency of the bank, when taken into consideration with the further fact that the bank never opened its doors and went into liquidation as an insolvent bank afterwards. Gillett v. Moody, 3 N. Y. 479 ; and Markson v. Hobson, 2 Dill. 330.
In the latter case it was held that a banker who allows his drafts to go to protest, suspends payment and closes his doors against depositors, proclaims to the world that he is insolvent, and a creditor who, with knowledge of these facts, receives payment of his debt secures an illegal preference, and is liable to* the assignee for the amount thus received. In Dodge v. Mastín, 17 Fed. 660, it was held that the ordinary acceptation of the term “insolvent,” when applied to a bank, means “inability to meet its liability in the usual course of business.” The principle is that, “where there is a statute prohibiting preferences or assignments after insolvency, the date of insolvency sets the time, and claims purchased thereafter cannot be set-off regardless of the date when a receiver is appointed.” Miller v. Audenried, 67 N. J. Eq. 252, 57 Atl. 1076 ; affirmed 68 N. J. Eq. 658, 60 Atl. 1134.
It follows that the decree of the chancery court was correct, and it will be affirmed. | [
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Humphreys, J.
Appellant ¡brought this suit against appellee in the circuit court of Clark County to recover damages in the sum of $5,000' for injuries which he re-ceived by falling in a hole alleged to have been excavated and negligently left open by appellee’s employees when they removed a gasoline tank appellee had theretofore installed by burying same in the street in front of appellee’s store in Hollywood.
Appellee filed an answer denying that his employees negligently left the hole open; and a cross-complaint alleging that appellant was indebted to him in the sum of $99.54 with six per cent, interest from the 20th day of September, 1928, and prayed that appellant’s complaint be dismissed and that he have judgment against him for his debt with six per cent, interest from said date.
The cause was submitted to a jury upon the pleadings, testimony and instructions of the court, resulting in a judgment in favor of appellee on his cross-complaint for $110.50 and in favor of appellant for $114.04 in his action for damages, from which is this appeal.
About tbe only disputed issues of fact reflected by tbe record are whether appellee’s employees protected the hole they dug in the ground in excavating the tank by covering same, and whether appellant was indebted to appellee in any sum for gasoline. The evidence is in conflict upon these two issues.
The undisputed evidence in the record reflects that appellee installed a tank of 550 gallons capacity by burying same in the ground in front of appellant’s store in order that he might sell his products to appellant, who agreed to buy his products and operate the tank. Several months thereafter appellant went out of business and the store was occupied by his son and family as a residence. About a year subsequent thereto appellee, without the knowledge of appellant, in his absence from town, sent his employees out one morning and dug up> the tank. Appellant came back after dark, and he and his family had started over to a neighbor’s house, and as he turned the corner, it'being night and dark, he stepped into the hole and was injured.
Appellant’s first contention for a reversal of the judgment is that the court erroneously amended instruction number one requested by him by adding thereto the following words: “If you believe from the evidence it was the duty of the defendant to fill the hole,” and in giving the instruction as amended over his objections. Ajppellant argues that there was no evidence in the record, tending to show that it was his duty to fill the hole when the tank was excavated, and that the jury should have been told as a matter of law that it was appellee’s duty to do so. We do not think, under appellee’s own testimony, that this issue should have been submitted to the jury. Appellee admitted that his employees excavated’ the tank and does not state that when it was installed appellant assisted in doing so, or that he agreed to assist him in any way when he excavated and removed the tank. Appellee did not testify that there was any'agreement or contract on the part of appellant to fill the hole after he (appellee) removed the tank. Of course, the jury found in favor of appellant, and awarded him damages in the sum of $114.04 for the injury received when he fell in the hole, hut it cannot be said that his cause was not prejudiced by the submission of the issue to the jury of whose duty it was to fill the hole. If the court had instructed the jury that it was appellee’s duty under the law to fill the hole, a greater amount might have been awarded appellant for his injuries. Under the evidence in the case the court should have refused to amend the instruction.
Appellant’s next contention for a reversal of the judgment is that the court erred in refusing to give his requested instruction number 5. This instruction follows § 375 of Crawford & Moses’ Digest, which states, in substance, that every person who shall dig an opening on any unenclosed land shall be required to securely enclose same, or cover same and keep ‘same covered with strong and sufficient covering. This section was to protect animals running at large on enclosed land and not for protection of persons. The court correctly refused to give appellant’s requested instruction number-5.
Appellant’s next contention for a reversal of the judgment is that the court erred in giving instruction number 3 requested by appellee, which is as follows: ‘‘3. You are instructed that contributory negligence is a good and valid defense, and if any is shown by the evidence to exist, however slight, which contributed to the accident, the plaintiff cannot recover.” The instruction was abstract, and should not have been given. There is no evidence in the record tending to show that appellant was guilty of contributory negligence, although pleaded.
Appellant’s -next contention for a reversal of the judgment is that the jury erred in figuring interest at eight per cent, on appellee’s account against appellant ■for gasoline instead of six per cent., and from May 9, 1928, instead of from September 20, 1928, as prayed for in appellee’s complaint.
As the cause must be reversed, and as these alleged errors will likely be corrected on a retrial of the cause, we deem it unnecessary to discuss them.
On account of the errors indicated the judgment is reversed, and the cause is remanded for a new trial. | [
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McHaney, J.
This case has been before this court heretofore, Maners v. Walsh, 180 Ark. 355, 22 S. W. (2d) 14. It was there reversed with directions to transfer to equity. On a retrial, in the chancery court, the court found for appellant in the sum of $250 damages and $67.50 paid by her to appellee on the contract, which latter amount had been tendered into court at the beginning of the action, with interest, which amount was reduced by the costs incurred in the former trial and appeal, and entered a decree accordingly, from which judgment there is an appeal and cross-appeal.
We deem it unnecessary to set out the contract which forms the basis of this action, as it was copied in full in the opinion on the former appeal. We have carefully considered this contract and the evidence supporting the respective contentions of the parties and have reached the conclusion that, by the great preponderance of the evidence, appellee signed the contract, not as a grantor, for it is undisputed that he was not the owner, but only for the purpose of enabling the owner, Williams, and appellant, to enter into a contract of sale and purchase of the property. A suit was pending in the chancery court for the foreclosure of appellee’s first lien against the property, which had proceeded to a decree in his favor for $2,018.01 and for a sale of the property to satisfy this judgment. The contract so specifies as follows : ‘ ‘¡Said decree being for the principal sum of $2,018.01, in favor of the said W. H. Maners with costs thereon and interest thereon at the rate of ten per cent, per annum from the rendition of said decree. After the amount herein mentioned due the said W. H. Maners is fully paid, then the balance of the consideration herein-before expressed shall (be paid by the said party of the second part (appellant) unto Ida R. Williams.” Both appellant and Williams knew that the extent of appellee ’s interest in the property was the amount of his mortgage judgment, and that all he was to realize from the sale from Williams) to appellant was this amount and no more. Instead of having the property sold under the de cree to satisfy his judgment, he simply agreed, as a matter of grace, to accept payment of his-indebtedness from appellant at the rate of $67.50' per month. There can be no doubt that all parties understood this, and that he executed the contract to enable Williams and appellant to make the trade, thereby agreeing to accept payments on the monthly plan, but that his claim should first be satisfied. The property was at all times to' stand security for the debt, and his relation of mortgagee continued with appellant substituted as mortgagor instead .of Williams. :
As said by this court on the former appeal: ■ “Equity looks beyond the mere form in which the transaction is clothed and shapes its relief in such way as to. carry out the true intent of the parties to the agreement, and to this end all the facts and circumstances of the transaction, the conduct of the parties thereto, and their relations to one another and to the subject-matter, are subjects for consideration.” .When we have done this, the conclusion is irresistible that appellee, for the accommodation of others, simply agreed that the security he held for the indebtedness in one form might continue to be' security in another form.
Under this view of the matter, there was no obligation upon appellee to bid the property in at the foreclosure sale. That duty rested upon Williams, the real owner, and the record shows that appellant secured a judgment against Williams for her damages. There was, therefore, no liability on appellee either for improvements made by appellant while in possession or for damages as for breach, as he was not an obligor in the contract. The decree on appeal will be modified and affirmed for $67.'50', the payment made to appellee under the contract, with costs to the date of tender by appellee of said sum and interest. On the cross,-appeal the decree is reversed, and remanded with directions to dismiss the ■complaint for want of equity, with costs to appellee.
It is so ordered. | [
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Minor W. Millwee, Justice.
This is a suit by appel-lee, City of Texarkana, Arkansas, to remove an encroachment on the south side of East Seventh Street in said city allegedly resulting when appellant, Oney Earl "Wynn, in 1946, erected a building known as the “Wynn Motel” five and one-half feet over the north boundary of his Lot 12, Block 26, of the original town of Texarkana, Arkansas.
The complaint alleged that in December, 1880, the St. Louis Iron Mountain & Southern Railway Company, hereinafter called Southern, made and recorded a plat of the blocks, lots, streets and alleys of the original town of Texarkana, Arkansas, on part of a certain section of land in Miller County, Arkansas, showing said Lot 12 to be 49 feet wide and 140 feet long abutting on East Seventh Street, which was shown by said plat as being 78 feet wide at all places; that appellant Wynn and his predecessors in title claimed title to said lot through Southern and their conveyances are based on saidplat; that state and federal highway authorities were in the process of widening and resurfacing East Seventh Street and required the full width thereof for such purposes. Appellee prayed that a mandatory injunction be issued requiring* appellants to remove the alleged encroachment. The suit originated in chancery, but was transferred to circuit court on motion of appellants.
In the answer appellant Wynn asserted ownership of said Lot 12 together with a strip nine feet and 10 inches wide and 140 feet long adjacent to the north boundary of said lot by adverse possession of Wynn and his predecessors in title since 1877. It was also alleged that Southern parted with its title to the property in 1877 and, therefore, had no right to dedicate a street 78 feet wide in 1880. After the circuit court denied appellee’s motion to remand to chancery, the case proceeded to trial before a jury resulting in a verdict and judgment for appellee.
The first three assignments of error in the motion for new trial challenge the sufficiency of the evidence to support the verdict. The fourth assignment alleges that the uncontradicted evidence reflects that appellant Wynn has title to the strip of land in controversy by adverse possession. The fifth assignment is that the trial court erred in refusing to grant a motion for a peremptory instruction for appellants at the conclusion of the testimony on behalf of appellee.
The evidence reflects that about the time Texarkana was incorporated as a town, Seventh Street, at the point in controversy, traversed a knoll which was cut down by the town in opening and grading the street, leaving a terrace or embankment about three feet high on or adjacent to the south side of the street and increasing in height to the back of said Lot 12 now owned by appellant Wynn. The evidence is in sharp dispute as to whether the front or north edge of this terrace formed the north boundary of said Lot 12, or whether said terrace extended several feet into the south part of East Seventh Street for the 140-foot length of the lot abutting on said street.
It is undisputed that four small houses were erected and stood on top of this terrace facing Seventh Street for many years prior to 1935 when appellant Wynn went into possession of Lots 11 and 12 of Block 26 under a gift from Ms mother, Mary E. Pugh. Wynn removed the houses in 1935 and graded Lot 12 down to the street level. The oldest of the houses, known as the Dosty house, was on the west end of the lot at the corner of Seventh and Hazel Streets. In 1936 Wynn erected a filling station on or near the site of the Dosty house. The filling station does not fall within the encroachment area and the evi-' dence is in dispute as to whether the Dosty house and the other three houses removed by appellant actually extended into the 78-foot street.
In 1946 appellant Wynn obtained a permit from the city and erected the Wynn Motel east of the filling station. Two of the engineers and surveyors testified that the front of the building extended into Seventh Street five feet and six inches. Another surveyor stated that the encroachment was five feet and seven inches, while a fourth fixed the encroachment at five feet and three inches. Some of the witnesses for appellant thought the old houses extended as far, or farther, into Seventh Street than the Motel building, while there was evidence on behalf of the city that said buildings did not encroach on said street.
There was also considerable variance in the testimony as to when the four houses were erected on the terrace. There was some evidence on behalf of appellants that the houses were erected prior to 1890. However, one of appellant’s witnesses stated that J. IT. McClain erected the three houses east of the Dosty house, on the site of the present Motel, during his ownership of the lot, and the record discloses that the property was deeded to McClain in 1899.
The parties stipulated that Texarkana was incorporated as a town in 1880, advanced to a city of the second class in 1887, and became a city of the first class in 1903. The first statute exempting municipalities from the statute of limitations as to streets and other public places was enacted in 1885 and applied only to cities of the first class. This statute now appears in the third subdivision
of Ark. Stats. (1947), § 19-2304. Since Texarkana did not become a city of the first class until 1903, the case was submitted to the jury on the question whether Wynn’s predecessors in title actually held adverse possession of the strip in controversy for seven years prior to 1903. This question was resolved in favor of the city on evi-, denee which is disputed but substantial and sufficient to support the verdict. It follows that the trial court did not commit error in refusing to direct a verdict in favor of appellants.
The sixth assignment in the motion for a new trial alleges error in the court’s refusal to give appellants’ requested instructions Nos. 2, 3, and 5. The requested instructions are set out in appellants’ brief, but none of the other instructions are abstracted. We have repeatedly held that the refusal to give certain instructions cannot be relied upon as error unless all of the instructions are set out in the abstract. Keller v. Sawyer, 104 Ark. 375, 149 S. W. 334. In DeQueen & Eastern Ry. Co. v. Thornton, 98 Ark. 61, 135 S. W. 822, the court said: “Counsel for appellant assign as error the action of the court in refusing a certain instruction, which they set out in their abstract. They contend that the refused instruction is not covered by any other instruction given. But they have not set out the other instructions, and the court might differ with them as to their construction of the omitted instructions. Under rule 9 counsel must abstract them, or we will assume that the theory embraced in the refused instruction was fully covered by the other instructions given which are not abstracted. St. Louis, I. M. & S. Ry. Co. v. Boyles, 78 Ark. 374, 95 S. W. 783.”
Where instructions given in a case are not set out in appellants’ brief, it is conclusively presumed that the case was submitted to tlie jury under instructions correctly declaring tlie law. Wilson-Ward Co. v. Fleeman, 169 Ark. 88, 272 S. W. 85.3; Sloan v. Ayres, 209 Ark. 119, 189 S. W. 2d 653. The court gave four instructions requested by appellee and two requested by appellants. Since these instructions are not abstracted, it must be presumed that the court correctly declared the law governing the issues.' Moreover, the refused instructions relate to questions of abandonment and estoppel by the city and establishment of an alleged agreed boundary between the city and Wynn, or his predecessors in title; and this court has held contrary to appellants ’ contention on said issues in the following cases: Little Rock v. Wright, 58 Ark. 142, 23 S. W. 876; Paragould v. Lawson, 88 Ark. 478,115 S. W. 379; Mebane v. City of Wynne, 127 Ark. 364, 192 S. W. 221; Butler v. Emerson, 211 Ark. 707, 202 S. W. 2d 599.
The seventh and last assignment of error in the motion for new trial reads: ‘ ‘ That the Court erred in giving-each and all of the instructions requested by the Defendants [Plaintiff] and particularly Instruction No. which charged the jury that no title by adverse possession could be acquired after May 27, 1903, for the reason that said instruction was contradictory to Defendants Instruction No. 1 and was confusing to the jury.” In connection with this assignment appellants earnestly insist that the trial court committed error by arbitrarily instructing the jury in appellee’s requested instruction No. 5 that the strip of land in controversy was 5 feet and 6 inches wide when there was a variance in the testimony as to the width of the alleged encroachment. Even if it be conceded that appellants properly preserved an exception to the challenged instruction in said assignment seven, the abstract is fatally defective in that none of the instructions given are set out in appellants ’ brief.
It is also argued that a verdict should have been directed for appellants because appellee failed to show or deraign title to a street 78 feet wide. The record shows that Cairo & Pulton Railroad Company procured a patent from the United States covering the site of the original town of Texarkana in 1857 and published a map of the town. The patentee railway consolidated with St. Louis, Iron Mountain Railway Company in 1874 to form Southern which conveyed Lot 12 in Block 26 to W. M. Fuller in 1877. On March 1,1880, Fuller conveyed to B. F. Kelly “Lot 12 in Block Number 26 in the town of Texarkana, Arkansas, as laid down' on the' map of said town published by the Cairo & Fulton Railroad Company now the St. Louis Iron Mountain & Southern Railway, being forty-nine feet front by one hundred and forty feet deep.” Kelly conveyed the lot to Nannie Mooring in 1886 and the latter conveyed to J. H. McClain in 1899. In 1923 McClain conveyed the lot to W. K. Pugh, who devised the property to his widow, Mary E. Pugh.
It is true that the dedication deed and plat were made and recorded by Southern in 1880 after the deed to Fuller in 1877 and the record here does not show whether Cairo & Fulton Railroad Company sold lots with reference to the map it published prior to consolidation with St. Louis, Iron Mountain Railway Company. But it is clear from the record that the parties here claim under a common source of title and that Lot 12 of Block 26, which is described throughout the chain of title as being 49 feet wide and 140 feet long has been conveyed and reconveyed with reference to the map recorded by Southern in 1880 and the earlier map published by Cairo & Fulton Railroad Company. It is well settled that “when the owner of land makes- a plat thereof, or adopts one made by someone else, and sells lots by reference to the map, this amounts to a dedication of the streets and public ways shown on the map.” Hope v. Shiver, 77 Ark. 177, 90 S. W. 1003. The evidence is sufficient to show that Southern adopted the map published by Cairo & Fulton Railroad Company and there was a dedication of the abutting Seventh Street by sale with reference to the published plat.
When Kelly sold and conveyed Lot 12 to Nannie Mooring in 1886, he adopted the plat recorded by Southern showing a street 78 feet wide abutting said lot. Appellant Wynn claims title under this deed and all intervening sales and conveyances from Nannie Mooring to appellant Wynn were made with reference to the recorded dedication deed and plat showing the width of Seventh Street as 78 feet. Since these sales and conveyances were made according to the recorded plat adopted by the several grantors, it is immaterial that Southern had parted with title to Lot 12 when the dedication deed and map were recorded. The evidence is, therefore, substantial and sufficient to show a valid dedication of a 78-foot street by the several conveyances which stem from the common source of title of the parties.
The judgment of the circuit court is affirmed.
Ark. Stats. (1947), § 19-2305 provides that no statute of limitation shall bar removal of street encroachments by cities of the second class. This statute was enacted in 1897. While its provisions were not invoked in the instant case, the testimony as to seven years adverse possession prior to 1897 is, of course, weaker than that relating to such possession prior to 1903. The statute seems to have also been overlooked in the case of Fordyce v. Hampton, 179 Ark. 705, 17 S. W. 2d 869. Ark. Stats. (1947), § 19-3831 was enacted in 1907 and applies to all municipalities. | [
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Steele Hays, Justice.
This is a second appeal and, like the first, involves the sufficiency of the proof of attestation of a will. When the case came before us initially, we held the probate judge had erred in admitting a will to probate without the testimony of two attesting witnesses. See in the Matter of the Estate of Sharp, 306 Ark. 268, 810 S.W.2d 952 (1991). The order was reversed and the case was remanded to the probate court for further proceedings.
On remand, the proponents of the will, over the objection of the contestants, undertook to present further evidence of attestation and the probate judge admitted the proof and again accepted the will for probate. The contestants have appealed, arguing the law of the case. Because we must sustain that contention the order is reversed and the action remanded.
Our opinion in the first appeal states that although three witnesses testified concerning the proffered will, one stood to benefit under the will. Another did not recognize the signature of the purported testator and had no recollection concerning the manner of its signing. Thus, only one of the three met the requirements of Ark. Code Ann. § 28-40-117(a) (1987).
Ordinarily in that situation the disposition would be a reversal and dismissal of the action. But this was a probate case and the matter was necessarily remanded for a continuation of proceedings affecting the administration of the estate of the decedent or, for that matter, the possibility that a different will would be proffered. The two appeals of Standridge v. Standridge, a probate case found at 298 Ark. 494, 769 S.W.2d 12 (1989) and at 304 Ark. 364, 803 S.W.2d 496 (1991), provide an apt illustration. In the first appeal, the validity of a marriage between Andy and Carroll Standridge was the issue. That dispute was resolved by the decision of this court in Standridge I and, under the doctrine of the law of the case, was not open to further development on remand. This was explained in Standridge II:
Whatever was before this Court, and is disposed of, is considered as finally settled. The inferior court is bound by the judgment or decree as the law of the case, and must carry it into execution according to the mandate. The inferior court cannot vary it for any other purpose than execution. It can give no other or further relief as to any matter decided by the Supreme Court, even where there is an error apparent; or in any manner intermeddle with it further to execute the mandate, and settle such matters as have been remanded, not adjudicated by the Supreme Court. [Emphasis in original.]
In Sharp I nothing in the language of that opinion suggests the issue of attestation was not fully developed or that additional evidence concerning the will was contemplated. The import of the opinion, tacit but nonetheless implicit in the holding itself, was that there had been a failure of proof on behalf of the proffered will. That being so, the law of the case applies and the decision is final. Milsap v. Holland 186 Ark. 895, 56 S.W.2d 578 (1933).
Reversed and remanded for further proceedings relative to the estate of Glenn W. Sharp, deceased. | [
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George Rose Smith, J.
The appellees are three attorneys, Shields Goodwin, DuVal Burkins, and U. A. Gentry, who brought this suit to obtain compensation for having successfully represented the appellant, L. J. Burbridge, in litigation that was concluded by our decision in Bradley Lbr. Co. v. Burbridge, 213 Ark. 165, 210 S. W. 2d 284. That opinion disposed of three cases that had been consolidated in this court. In one case, a suit in ejectment, we held that Burbridge had title to the 320 acres involved in all the cases. In another, a suit to enjoin the removal of piling from the tract, we upheld Burbridge’s contentions and awarded him a judgment for $330.26, with interest that brought the total amount to about $630. The third suit was for the value of pine timber cut in the first decade of this century, and we held that the action-was barred by laches.
While the record in the case at bar is of great length the issues are relatively simple. The appellees contend, and the chancellor held, that by their contract with Bur-bridge they are entitled to a one-fourth interest in the 320-acre tract, which is estimated to be worth about $80,000. The appellant contends that the appellees are entitled only to a fourth of the $630 recovery, his theory being either that the appellees had no contract of employment in the ejectment suit or that the ejectment suit was needlessly tried, since the issues would have been settled by the other cases.
The facts that led to the earlier litigation go back almost a century. In 1869 the land in question was conveyed to appellant’s mother, Isabella Burbridge, “and the issue of her booty.” In 1891 Isabella Burbridge purported to convey the fee simple to J. F. Ritchie, who took possession. Bjr subsequent conveyances Ritchie’s title passed to the Bradley Lumber Company. Among many questions in the earlier litigation were those of adverse possession and of the construction of the 1869 deed. We held that Isabella Burbridge was merely a life tenant and that possession under her 1891 deed did not become adverse to the remainderman until the life tenant’s death in 1932.
The first of the three earlier cases was the piling suit, filed by Purkins in 1931. Next came the pine suit, filed by Goodwin in 1933. It was Goodwin’s opinion, which our decision confirmed, that the lumber company would acquire title by adverse possession unless an ejectment suit was instituted within seyen years after Isabella Burbridge’s death. He accordingly filed the ejectment suit in 1939, pursuant to the written contract of employment upon which the present case centers. By that contract Burbridge agreed that Goodwin should receive for his services 20% of any recovery by judgment, compromise, or otherwise, or 25% if the case should be appealed to this court.
At first Goodwin and Burbridge agreed to let the ejectment suit pend uutil the other cases, which were in chancery, were tried, Por reasons originally satisfactory lo Burbridge none of the eases were brought to trial for mail}' years after-, their filing. Goodwin entered the army in 1942 and later withdrew from the pine case. Burbridge, with Goodwin’s approval, then employed Gentry to handle the pine case. The chancery cases were finally brought to trial on December 10, 1946, after Goodwin had returned to civilian life. There is testimony that on the evening before this trial the three attorneys and Burbridge all agreed that the ejectment suit should also be tried as quickly as possible so that all the cases could be consolidated in the Supreme Court. Burbridge was undoubtedly reluctant to have the ejectment suit tried, but the evidence shows pretty conclusively that he acceded to what he considered to be the more informed judgment of his attorneys.
On January 20, 1947, the three lawyers met with Burbridge and his son in Little Rock. At that time Goodwin was the attorney of record in the ejectment suit, Gentry in the pine suit, and Purldns in the piling suit. It was agreed that the attorneys would pool their efforts in all the cases and divide their fees equally with one another. It was also agreed that the suit at law would be tried as quickly as possible, although Burbridge was still opposed to this strategy and yielded to the others against his own inclinations. Thereafter the litigation was prosecuted to its conclusion, with the results that we have stated.
We find it unnecessary to decide whether Goodwin abandoned his employment in the ejectment suit when he was ordered overseas, for the testimony shows that the contract was later reinstated. Anderson Burbridge, the appellant’s son, testified that at the conference of January 20, when the appellant agreed to the trial of the action at law, Goodwin asked, “Do you mean under my old contract'?” and Burbridge, Sr., replied, “Yes.” The appellant’s version is to the same effect, though he says that he was acting under duress. Eight days later Goodwin sent a copy of his contract to his co-counsel, as a confirmation of their understanding as to the division of fees. A copy was also sent to Burbridge, but ho waited about thirteen weeks before first suggesting that Goodwin had abandoned his employment in the ■ejectment suit. In the meantime a hearing liad been held in the circuit court, in which all the attorneys participated. We think it to be clearly shown that the three appellees did have a contract of employment in the ejectment suit.
The appellant’s remaining contention is that he was overreached by his attorneys when he consented to the trial of the ejectment suit. The record does not sustain the charge that the appellees acted in bad faith in bringing the case to trial. Goodwin’s contract fixed a 20% fee in the event of any recovery by judgment “or otherwise.” Even if the ejectment suit had been allowed to abide the outcome of the chancery appeal and even if that appeal had settled the issue of title, there would still have been a recovery in the ejectment suit upon a plea of res judicata. This recovery would necessarily have been by judgment or otherwise; so the appellees • would have earned a 20% fee even without a trial on the merits. In this respect the case may be compared to one in which an attorney is employed in several similar suits and prosecutes a single test case to a successful conclusion. It certainly would not be seriously argued that if the adversary then concedes defeat in the untried cases the attorney is thereby deprived of his right to compensation.
Thus on this issue the real question is whether the appellees violated their fiduciary duty toward their client as a means of obtaining a fourth of the recovery instead of a fifth. We are unable to say that they even exercised bad judgment, much less bad faith. The sole issue in the ejectment suit was that of title to the land. The attorneys rightly feared that the pine suit might go off on the issue of laches, leaving the title still in controversy. The ground for decision adopted by the Supreme Court has occasionally come as a surprise to the attorneys in the case; so the appellees could hardly have given their client positive assurance that this court would adjudicate the title in the remaining chancery case — -the piling suit. The simpler and more certain strategy was to consolidate the ejectment suit with the others, so that the issue of title would be squarely presented on appeal. Both the appellant and his son agreed to this course of action, and both are business men of mature judgment. Finally, when the ejectment suit was called for trial Gentry stated to the court that his client desired a continuance, but both the judge and the opposing counsel insisted that the ease be tried. We are acutely conscious of the fiduciary obligation that an attorney owes to his client, but we are convinced that these appellees were motivated throughout the litigation by the interests of their client rather than by any ends of their own.
Affirmed. | [
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Jack Holt, Jr., Chief Justice.
The issue in this appeal is whether the trial court erred in holding that appellant Clarence Toran is precluded by the doctrine of res judicata from litigating certain issues and claims made below against the appellee, Provident Life & Accident Insurance Company (Provident). We find that the trial court’s decision was wrong. Accordingly, we reverse its judgment and remand the case for proceedings consistent with this opinion.
On July 1,1974, Provident issued and delivered a long-term disability policy insuring Toran and other employees of Federal Compress & Warehouse Company. On November 2, 1978, Toran sustained serious injuries in a truck accident.
In August 1980 he became totally and permanently disabled for purposes of the policy, and on September 9, 1981, was discharged from his employment because he was physically unable to perform his job duties.
After applying for Social Security disability benefits, Toran began receiving disability payments in May of 1982. Shortly thereafter, Provident reduced his policy benefits of $576.66 per month to $149.76 per month pursuant to a policy provision permitting Provident to reduce Toran’s policy benefits by the amount of Social Security benefits to which he or his dependents are entitled as a result of his disability.
Thereafter, Toran sued Provident for the total sum of the reduction, contending that Ark. Stat. Ann. § 66-3709, as amended in 1979, precluded reduction of his policy benefits. The trial court rendered judgment in favor of Toran, and Provident appealed this decision.
In Provident Life and Accident Ins. Co. v. Toran, 288 Ark. 63, 702 S.W.2d 10 (1986), we reversed the trial court’s decision. In doing so, we construed § 66-3709 to permit Provident to reduce Toran’s policy benefits by the amount of Social Security benefits to which he was entitled as a result of his disability, resulting in a net payment to Toran of $149.76.
In June of 1986, Provident reduced Toran’s policy benefits from $149.76 to $50.00 per month. On September 1, 1986, Provident elected to pay him no further benefits, claiming an overpayment because of Social Security benefits applied for by his illegitimate children and paid directly to them.
In May of 1987, Toran filed suit against Provident alleging essentially as follows:
(1) To construe Ark. Stat. Ann. § 66-3709 to allow an insurance carrier to deny or reduce benefits because of the insured’s receipt of like benefits is contrary to the legislative intent of the statute and public policy;
(2) Section 66-3709 prohibits Provident from reducing an insured’s policy benefits by the amount of Social Security disability benefits received by him;
(3) Section 66-3709 prohibits Provident from reducing an insured’s policy benefits by the amount of Social Security disability payments applied for and paid to his illegitimate children;
(4) Provident’s policy terms and § 66-3709, as amended, prohibit reduction of insured’s benefits to an amount less than $50.00 per month; and
(5) By collecting premiums to insure against total disability by its insureds with knowledge that the great majority of employee insureds who are rendered “totally and permanently disabled” will receive Social Security disability benefits, Provident in reality is providing nominal coverage or in some cases, no coverage, except for a $50.00 per month minimum provided for in the policy. This action violates public policy.
Based upon these allegations, Toran prayed for all benefits wrongfully reduced by Provident.
Thereafter, Provident filed a motion to dismiss on the grounds that Toran’s action was barred by the doctrine of res judicata. The trial court granted this motion, finding that the suit was precluded by res judicata and that the complaint failed to state facts upon which relief could be granted. From this order, Toran appeals.
Toran first asserts that the trial court erred in finding he is precluded by res judicata from litigating his claim for policy benefits withheld by Provident because of Social Security benefits paid to his illegitimate children. This contention has merit.
As we recognized in Smith v. Roane, 284 Ark. 568, 683 S.W.2d 935 (1985), res judicata and collateral estoppel are separate concepts. Under the doctrine of res judicata or claim preclusion, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim or cause of action. Restatement (Second) of Judgments § 19 (1982). See also Bailey v. Harris Brake Fire Protection Dist., 287 Ark. 268, 697 S.W.2d 916 (1985); Fish v. McLeod, 206 Ark. 142, 174 S.W.2d 236 (1943). Furthermore, res judicata bars not only the relitigation of claims which were actually litigated in the first suit, but also those which could have been litigated. Bailey, supra; Seaboard Finance Co. v. Wright, Admx., 223 Ark. 351, 266 S.W.2d 70 (1954). In contrast, the doctrine of collateral estoppel or issue preclusion bars the relitigation of issues of law or fact actually litigated by the parties in the first suit. Smith, supra; Restatement (Second) of Judgments § 27 (1982).
Toran’s claim concerning policy bénefits withheld by Provident because of Social Security benefits paid to Toran’s illegitimate children was not litigated in the first action. In addition, it could not have been litigated in that Provident did not reduce Toran’s policy benefits by the amount of Social Security benefits paid to his illegitimate children until after the first action was decided. Therefore, res judicata does not preclude Toran from litigating this matter. We reverse on this point.
Toran also argues that the trial court erred in finding that he is precluded by res judicata from litigating his claim for policy benefits denied him by Provident’s reduction of his benefits from $50.00 per month to zero. We agree.
Under the heading, “Reductions applicable to Basic Benefit Amount,” the insurance policy in question provides in part that the benefit amount shall be reduced by “any periodic cash payment to which the Employee, or a dependent of the Employee is entitled as a result of the Employee’s disability.” In addition, it provides that “[i]n no event, however, will the employee’s basic benefit amount be reduced to an amount less than $50.00.”
Toran is not precluded from litigating his claim for policy benefits wrongfully denied by Provident’s reduction of his benefits from $50.00 to zero per month. Not only was this claim not adjudicated in the first suit, it could not have been litigated since Provident did not reduce Toran’s policy benefits below $50.00 until after the first case was decided.
Finally, Toran argues that the trial court erred in finding that he is precluded by res judicata from arguing that Provident’s policy reduction provisions operate contrary to good public policy and are, therefore, void. We agree with Toran in part.
In May of 1982, Provident reduced Toran’s policy benefit to $149.76 by subtracting the amount of Social Security benefits to which he was entitled ($426.90) from the amount of benefits due under the policy ($576.66). Toran then sued Provident for the total sum of the reduction contending that Ark. Stat. Ann. § 66-3709 precluded reduction of his policy benefits. The trial court rendered judgment in favor of Toran, and Provident appealed the decision. This court reversed the decision of the trial court, holding that such a reduction was not contrary to § 66-3709. See Provident Life & Accident Ins. Co., supra. Thereafter, Provident reduced Toran’s policy benefits to $50.00 per month and later elected to pay him no benefits, claiming an overpayment because of Social Security benefits applied for by his illegitimate children and paid directly to them.
Since Toran litigated in the initial lawsuit his claim for the amount of policy benefits wrongfully denied by Provident’s reduction of his benefits from $546.66 to $149.76 due to Social Security benefits received by him, he is barred by res judicata from litigating this claim in the present action. Consequently, he is precluded from making public policy arguments in support of this claim.
Toran is not barred by res judicata from litigating his claim for policy benefits denied him by Provident’s further reduction of his benefits from $149.76 to $50.00 in that this claim was not litigated and could not have been litigated in the first action. Furthermore, he is not barred by collateral estoppel from contending that Provident’s policy reduction provisions operate contrary to public policy in support of this claim in that this issue was not adjudicated in the first action. However, he is precluded by collateral estoppel from asserting that Ark. Stat. Ann. § 66-3709 prohibits reduction of his policy benefits by the amount of Social Security benefits to which he is entitled as a result of his disability in support of this or any other claim since this issue was adjudicated and determined in Provident, supra.
In addition, Toran is not barred by res judicata from pursuing his claim for policy benefits denied him by Provident’s reduction of his policy benefits from $50.00 to zero due to Social Security benefits received by his illegitimate children in that this claim was not litigated and could not have been litigated in the first suit. Moreover, he is not precluded from asserting that the policy reduction provisions in question contravene public policy in support of this claim.
Reversed and remanded for proceedings consistent with this opinion. | [
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