text
stringlengths 8
185k
| embeddings
sequencelengths 128
128
|
|---|---|
Butler, J.
The appellees were tbe owners of 2% acres of land planted in strawberries into which the cattle of the appellant, to the number of 150 or 200 head, were allowed to pasture, completely destroying the berries. Appellees brought suit in the court below and recovered the sum, of $175 as damages. The appellant has duly prosecuted this appeal.
On a trial of the case the court refused to permit tlxe introduction of testimony offered on the part of the appellant tending to show the condition of the fence around the berry patch for the reason that that territory was included in a fencing district created by order of the county court, in which order the running at large of cattle was prohibited. This ruling of the court is assigned as error, the contention being that the county court was without authority to make the order. The attack made upon the validity of the order is a collateral one, and therefore, as the court had jurisdiction of the subject-matter, every presumption will be indulged in favor of the validity of the judgment. Hopper v. Wist, 138 Ark. 289, 211 S. W. 143. The court did not err in its ruling.
It is also contended that the conrt erred in the giving of instructions numbered one and two. Instruction No. 1 in effect told the jury that if the defendant (appellant) “permitted his cattle to go upon the berry patch” by reason of which damage resulted, they should find for the plaintiff (appellees) unless the plaintiff agreed to keep up the fences. This instruction was more favorable to the defendant than the pleading or proof warranted, for, as the territory was in the fencing-district, it was the duty of the defendant to keep his cattle inclosed.
Instruction No. 2 related to the measure of damages which we will discuss in disposing of the contention made by the appellant that the evidence was not sufficient to sustain the verdict.
There was testimony to the effect that on or about the 5th day of May the berries appeared to be very promising, the plants having heavy foliage and buds, and the berries beginning to turn. The appellee who grew the berries testified that before they were destroyed by appellant’s cattle the berries were beginning to ripen, and he was preparing to pick them the week following; that he had been in the berry business twenty-two years and that the patch would produce from 150 to 200 crates of berries on which he would clear $200. There was no objection made to the testimony as offered. • There was no dispute as to the berries having been destroyed by appellant’s cattle. Instruction No. '2 complained of told the jury that, if they found for the plaintiff, the measure of damages is the difference in the value of the berry patch before the damage and the value after the damage. Since the uncontradicted testimony showed the berries were completely destroyed, this instruction in effect told the jury that the measure of damages was the value of the berries at the time of their destruction. It is contended that this instruction was incorrect on the authority of the ease of St. L. I. M. & S. R. Co. v. Saunders, 85 Ark. 111, 107 S. W. 194, where it is held that in cases where crops are so immature when destroyed as to have no market value, the measure of damage is the rental value of the land. This contention cannot be upheld because under the proof in this case the berries were advanced to that state of maturity where picking would begin within a few days. That being the case, we think the crop sufficiently mature that those experienced in the growing and marketing of berries could approximate with a reasonable degree of certainty their value at the time of destruction and the measure of damages was such value. Railway Co. v. Leyman, 57 Ark. 512, 22 S. W. 170 ; St. L. I. M. & S. R. Co. v. Hoshall, 82 Ark. 387, 102 S. W. 107. The testimony, given relating to the value of the crop as we have seen, was sufficient to establish with a reasonable degree of certainty the damage and to sustain "the verdict. The judgment is affirmed. | [
-13,
-20,
-35,
-83,
8,
32,
58,
-100,
65,
-93,
118,
83,
-23,
-61,
84,
105,
-29,
-115,
85,
122,
-44,
-74,
83,
-62,
50,
-5,
-54,
-43,
-67,
79,
-4,
116,
9,
20,
-118,
85,
-30,
-96,
-51,
28,
-114,
5,
-117,
121,
89,
16,
56,
127,
22,
79,
53,
-113,
-13,
46,
17,
-61,
105,
44,
-23,
45,
-47,
-8,
-70,
13,
31,
6,
-80,
103,
-98,
-123,
-40,
110,
-104,
49,
1,
-56,
115,
-92,
-122,
116,
15,
-103,
8,
38,
102,
1,
76,
-49,
8,
-120,
6,
-2,
15,
-90,
-44,
0,
3,
33,
-66,
-99,
116,
84,
-121,
126,
-3,
-60,
93,
124,
-121,
-62,
-108,
-73,
-113,
56,
-100,
1,
-21,
-89,
49,
113,
-49,
-30,
89,
71,
48,
-101,
-114,
-41
] |
George Rose Smith, Justice.
Jennie Phillips Dunlap, age 84, died in 1980. Her will, made in 1975, left her residuary estate equally to thirteen named nieces and nephews. Judy Ann Phillips Tate, a niece not named in the will, intervened in the probate proceeding to claim a one-fourteenth share of the estate. She appeals from an adverse decision holding that the testatrix intended a gift to the named individuals rather than to her nieces and nephews as a class. Our jurisdiction is specified by Rule 29 (1) (p).
Three paragraphs of the will are pertinent. After making a provision for the support of her two living brothers the testatrix went on to declare in her will:
After the death of both my brothers, my will may be fully executed. My estate is to be divided equally among those of my nieces and nephews still living at the time of the death of the last of my surviving brothers]....
My nieces and nephews are namely: Pearlie Wood, Ira Lewis, Frances Martin, and Lillie Surber; Ruby Baskin, Olean Box, and Wilma Hurdle; Sylvia Majstoravith and Eugene Phillips, Jr.; Myrtle Taylor, Mirl Phillips, Valda Gregon, and Shelby Phillips; making a total of thirteen (13) nieces and nephews.
##*###
All the rest, residue, and remainder of my estate not heretofore disposed of, I give, devise, and bequeath in equal shares to those of my nieces and nephews still living at the time of death of my last surviving brother
The probate judge correctly ruled that the case is controlled by Rand v. Thweatt, 222 Ark. 556, 261 S.W.2d 778 (1953), where we held that in a case of this kind the decisive inquiry is whether the testatrix was looking to the body of persons as a unit or to them as individuals. We quoted several pertinent principles from Page on Wills, including these:
If the gift is made to beneficiaries by name, the gift is, prima facie, not one to a class, even if the individuals who are named possess some quality or characteristic in common.
#####*
If the names of the members of the class as well as the number of the members are given, the inference is quite strong that the gift is to individuals, and not to a class.
Here the will not only named the nieces and nephews but also stated, “making a total of thirteen (13) nieces and nephews.” The inference against a class gift is therefore quite strong.
In Rand we observed that in attempting to ascertain the testatrix’s intent we had only the will itself, unaided by extrinsic evidence or circumstances. In this case, however, we do have extrinsic circumstances. The appellant, born in 1952, was the illegitimate daughter of the testatrix’s brother, Eli Phillips, then 60, and Bobbie Ray Hindman, then 21. Phillips and Ms. Hindman had lived together for about five years, but they separated about two years after the appellant’s birth, with the appellant thereafter living with her mother. Eli Phillips died in 1962, thirteen years before the testatrix made her will. It is shown that the testatrix knew that the appellant was Eli’s child. Even though the Supreme Court of the United States has held that the equal protection clause of the Fourteenth Amendment prohibits discrimination against illegitimate children, that clause applies only to actions by a state, not to actions by individuals. The testatrix was therefore at liberty, if she chose to do so, to exclude from her bounty an illegitimate niece who had lived with her father, the testatrix’s long since deceased brother, for only about two years. Hence the prima facie inference against a class gift that arises from the will itself is strikingly confirmed by the extrinsic circumstances.
The question presented by this case is not even superficially similar to that considered in Walker v. Case, 211 Ark. 1091. 204 S.W.2d 543, 173 A.L.R. 1009 (1947), relied upon by the appellant. There the testator’s next of kin were his five surviving children and six grandchildren, the children of the testator’s deceased daughter. The will contained bequests to the surviving children of the testator and made this reference to the grandchildren: “I give to my five grandchildren, who are children of my daughter Bert Rand Finley, deceased, the sum of $50 (fifty dollars) each.” The six grandchildren made the novel argument that they were not even mentioned in the will and were therefore entitled to a sixth of the estate, as pretermitted descendants of the testator. The court cited many cases holding that, under the statute requiring that children or their descendants be mentioned in the will, it is sufficient to refer to such children or grandchildren as a class. The court reached the obvious conclusion that since the will mentioned the deceased daughter’s children as a class (not by name, as here), the reference was sufficient to satisfy the statute. How that case can be thought to control this one escapes us.
Affirmed.
Purtle, J., dissents. | [
-15,
-20,
-36,
125,
58,
52,
-102,
26,
115,
-23,
35,
83,
111,
-8,
20,
127,
99,
111,
81,
107,
-74,
-9,
7,
-32,
-46,
-13,
-79,
-60,
-95,
-3,
46,
95,
76,
96,
10,
-35,
102,
-114,
-19,
-110,
28,
80,
8,
33,
89,
-14,
54,
39,
86,
70,
-59,
-98,
-77,
-88,
60,
106,
104,
47,
121,
-69,
64,
-88,
-117,
7,
125,
7,
-111,
21,
-70,
-89,
-24,
14,
92,
60,
-128,
-22,
51,
-74,
-46,
116,
47,
27,
-116,
98,
102,
0,
-19,
-19,
-104,
-120,
39,
-90,
-67,
-89,
-98,
89,
-95,
77,
-73,
-100,
116,
84,
11,
124,
-26,
93,
94,
40,
45,
-113,
-42,
-95,
-88,
-88,
-114,
11,
-6,
-123,
50,
113,
-40,
-94,
92,
71,
125,
-109,
-122,
-38
] |
Per Curiam.
Appellant, Minnie Pryor, by her attorney, Paul N. Ford has filed a motion for rule on the clerk. Her attorney admits that the record was tendered late.
We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam dated February 5, 1979, In re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
-12,
-22,
124,
-68,
42,
98,
48,
42,
-39,
-21,
61,
83,
-91,
-53,
28,
121,
83,
-21,
85,
123,
-58,
-78,
23,
64,
38,
-13,
-15,
87,
-69,
111,
-10,
-2,
76,
48,
-54,
-107,
70,
-56,
-115,
88,
-42,
-127,
25,
-27,
-47,
0,
60,
41,
-48,
15,
113,
126,
-29,
44,
60,
67,
-88,
40,
-51,
59,
64,
-95,
-102,
13,
127,
20,
-79,
-28,
-98,
-121,
-40,
62,
-100,
52,
2,
-8,
51,
-90,
-122,
84,
45,
57,
8,
70,
102,
49,
-108,
-17,
-120,
-88,
20,
58,
-99,
-90,
-8,
105,
-53,
-84,
-106,
-107,
45,
16,
39,
126,
-25,
-35,
89,
44,
9,
-49,
-44,
-77,
47,
48,
-116,
-118,
-22,
3,
16,
117,
-51,
-25,
92,
71,
51,
-109,
-50,
-92
] |
David Newbern, Justice.
This is a breach of contract case. The appellee, Robert Goodall, alleged that the appellant, James C. Mitchell, orally agreed that Goodall could run cattle on Mitchell’s land indefinitely in exchange for improvements to be made on the land by Goodall. There was no written lease, but Mitchell testified Goodall was to have the land for three years. Goodall was in the process of being divorced. Goodall contended that Mitchell had maliciously instigated the sale of Goodall’s cattle, ostensibly under the authority of the divorce court, just to get his land back after Goodall had made substantial improvements on the land and had used it less than a year. The jury awarded damages based on testimony about the cost of improvements made by Goodall on Mitchell’s land as well as punitive damages. We affirm the judgment in favor of Goodall.
Mitchell’s first and second points of appeal are as follows: “There is No Substantial Evidence to Support the Claim that Appellant Sold Appellee’s Cattle;” and “Appellee’s Divorce Caused His Cattle Operation.to Fold.” At the close of Goodall’s evidence, Mitchell moved for a directed verdict with respect to Goodall’s punitive damages claim for lack of substantial evidence and on the ground that it was brought more than a year after the events alleged and was thus barred by a statute of limitations applicable to intentional torts. He did not cite any particular statute of limitations. The motion was renewed only on the statute of limitations ground at the end of all the evidence. No reference was made to insufficiency of evidence on the breach of contract claim either in the motion at the close of the plaintiffs case or at the close of all the evidence. We do not consider arguments made for the first time on appeal. Hooper-Bond Ltd. Partnership Fund III v. Ragar, 294 Ark. 373, 742 S.W.2d 947 (1988); Polnac-Hartman & Associates v. First National Bank, 292 Ark. 501, 731 S.W.2d 202 (1987); Puckett v. Puckett, 289 Ark. 67, 709 S.W.2d 82 (1986).
Mitchell’s third point is that his motion to set aside the verdict should have been granted because a juror improperly failed to reveal a disqualifying relationship to Goodall. The jury panel was asked by the court if any of them were related by blood or marriage or had any business or social relationships with Goodall. Juror Hern said her ex-husband and Goodall were cousins and that she knew Goodall but had not recently associated with him.
Mitchell’s motion alleged that Hern’s sister was married to Goodall’s brother. He argues that Hern was not a qualified juror according to the applicable statute. Arkansas Code Ann. § 16-31 -102(b)( 1) disqualifies a person from service as a petit juror if she “ [i] s related to any party or attorney in the cause within the fourth degree of consanguinity or affinity.” Obviously there was no blood relationship between Hern and Goodall, thus if she was disqualified it had to be on the basis of affinity.
In North Arkansas & Western Ry. Co. v. Cole, 71 Ark. 38, 70 S.W. 312 (1902), we defined “affinity” as “the tie which arises from marriage between the husband and the blood relations of the wife, and between the wife and the blood relations of the husband.” We held, “[t]here is no affinity between the blood relations of the husband and the blood relations of the wife.” This definition and holding have been followed in later cases. McDaniel v. State, 228 Ark. 1122, 313 S.W.2d 77 (1959); Thornsberry v. State, 192 Ark. 435, 92 S.W.2d 203 (1936). Thus, while Hern’s sister may have been related to Goodall by affinity, Hern was not. The motion to set aside the judgment was properly denied.
Mitchell’s final point for reversal is that a directed verdict should have been granted with respect to the punitive damages claim. He argues that the evidence showed that Mitchell was acting only to protect the interest of the bank, of which he was chairman, as mortgagee of Goodall’s cattle. He also notes, again for the first time on appeal, that punitive damages are not normally granted in breach of contract cases.
By not raising it at the end of the evidence, Mitchell abandoned his argument that the evidence was insufficient to support punitive damages. Arkansas R. Civ. P. 50(a) permits a motion for directed verdict at the end of the plaintiff’s evidence and at the close of all evidence and requires that specific grounds be stated. Rule 50(e) provides that “failure to move for a directed verdict at the conclusion of all the evidence, or to move for judgment notwithstanding the verdict, because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support a jury verdict.” Here there was no motion for judgment notwithstanding the verdict, and the motion for directed verdict at the close of the evidence did not mention insufficiency of the evidence on punitive damages. The argument was waived. See Copelin v. Cortner, 291 Ark. 218, 724 S.W.2d 146 (1987).
Affirmed.
Purtle, J., dissents. | [
112,
-8,
-44,
77,
8,
96,
40,
-102,
97,
-86,
103,
83,
-87,
-61,
20,
111,
70,
125,
69,
106,
-43,
-77,
6,
65,
-46,
-77,
25,
-59,
-88,
78,
-27,
85,
76,
0,
-54,
-43,
-30,
-62,
-63,
28,
-82,
6,
-117,
-20,
-39,
0,
60,
61,
48,
95,
17,
-82,
-85,
46,
29,
71,
8,
42,
107,
125,
80,
-8,
43,
-123,
63,
18,
-77,
37,
-118,
7,
-8,
126,
-112,
53,
9,
-24,
90,
-74,
-122,
116,
15,
9,
8,
102,
99,
16,
72,
77,
124,
8,
39,
-37,
31,
-90,
-112,
8,
99,
103,
-74,
-99,
72,
20,
4,
-2,
-27,
-115,
28,
44,
3,
-57,
-42,
-125,
13,
108,
-100,
27,
-17,
-89,
21,
97,
-51,
-30,
92,
69,
58,
31,
-113,
-109
] |
Tom Glaze Justice.
On October 26, 1987, the appellee, Bobby Sharp, suffered a back injury during the course and arising out of his employment with Kinco, Inc. At the time of this work-related accident, Continental Casualty Company (CCC), the appellant, provided worker’s compensation insurance coverage for Kinco, Inc. CCC paid Sharp worker’s compensation benefits totaling $128,424.77.
In October 1990, Sharp and his wife, Margie, through their attorney James Filyaw, brought a third-party-negligence action against Don Bull, Terracon Consultants S. C., Inc., Terracon Environmental, Inc. and Terracon Consultants E. C., Inc. in Sebastian County Circuit Court seeking damages for Sharp’s 1987 back injury. On February 26,1991, CCC, through retained counsel Wayne Harris, filed a motion to intervene in the third-party suit to preserve its right to a subrogation lien pursuant to Ark. Code Ann. § 11-9-410 (1987), which reads in relevant part as follows:
(1) LIABILITY UNAFFECTED.
(1) The making of a claim for compensation against any employer or carrier for the injury or death of an employee shall not affect the right of the employee, or his decedents, to make claim or maintain an action in Court against any Third Party for the injury, but the employer or his carrier shall be entitled to reasonable notice and opportunity to join in the action. If they, or either of them, join in the action, they shall be entitled to a first lien upon two-thirds (2/3) of the net proceeds recovered in the action that remain after the payment to them of the amount paid and to be paid by them as compensation to the injured employee or his dependents.
(2) The commencement of an action by an employee or his dependents against a Third Party for damages by reason of an injury to which this chapter is applicable, or the adjustment of any claim, shall not affect the rights of the injured employee or his dependents to recover compensation, but any amount recovered by the injured employee or his dependents from a Third Party shall be applied as follows:
(A) Reasonable cost of collection shall be deducted.
(B) Then, in every case, one-third (1/3) of the remainder shall belong to the injured employee or his dependents, as the case may be;
(C) The remainder, or so much as is necessary to discharge the actual amount of the liability of the employer and the carrier; and
(D) Any excess shall belong to the inj ured employee or his dependents.
The Sharps’ third-party action proceeded to trial, and a verdict was rendered in their favor in the amount of $456,893.60. The court entered judgment on the verdict, and attorney Filyaw, in accordance with his one-third contingency fee agreement with Sharp, received one-third of the gross recovery — $152,297.86. Filyaw was also reimbursed costs in the amount of $4,170.29. After deducting these costs of collection under § 11-9-410(a)(2)(A), the net recovery to be distributed (between the Sharps and CCC) under (B), (C) and (D) of § 11-9-410(a)(2) was $300,425.45. Accordingly, the Sharps were first entitled to one-third of this net figure, or $100,141.81, leaving $200,283.64 as the balance to be distributed. Because the remaining balance exceeded the worker’s compensation benefits CCC had paid Sharp, CCC was reimbursed only the $128,424.77 in benefits it had paid Sharp, and the remaining or excess funds, $71,858.87, were awarded the Sharps, fixing their total recovery at $172,000.68. The Sharps contested CCC’s receiving the full amount of its subrogation-lien amount, arguing CCC should pay one-third of such amount, $42,808.25, as collection costs since CCC exerted no efforts or assistance in pursuing the third-party action.
Mr. Sharp filed this declaratory judgment action against CCC, asserting CCC would be unjustly enriched if it were reimbursed its entire amount of benefits, and the trial court agreed, by granting Sharp’s motion for summary judgment finding that (1) prior to trial of the third-party action, the Sharps requested CCC to share in the cost of prosecuting the third-party action and CCC refused to participate, (2) the recovery of $456,893.60 in the third-party action was due primarily to the efforts of the Sharps’ attorney in investigating, developing, preparing and trying the third-party action and (3) CCC was not entitled to accept the benefits of the services of the Sharps’ attorney without payment of a reasonable attorneys’ fee. The trial court then awarded Sharp one-third of CCC’s subrogation lien amount, $42,808.25. This amount was in addition to the $152,297.86 amount Filyaw received as attorney’s fees or costs of collection in the third-party action. CCC appeals the trial court’s decision awarding this additional amount. While the trial court determined CCC must pay an additional attorney’s fee from its subrogation amount, the court denied Sharp’s contention that CCC must also pay one-third of the costs ($4,170.29) from its subrogation award. Sharp cross-appeals from this part of the trial court’s order. We reverse on appeal and affirm on cross-appeal.
The trial court erred in awarding Sharp an attorney’s fee from CCC’s subrogation lien award because the circuit judge presiding over the earlier third-party action had already awarded the Sharps the full amount of attorney’s fee ($ 152,297.86) as part of the “costs of collection” required under § 11-9-410(a)(2)(A). Because these fees and costs were initially deducted from the full amount of the third-party judgment before either the Sharps or CCC were distributed their respective statutory awards under § ll-9-410(a)(2), CCC effectively paid its proportionate share of the attorney’s fees in the Sharps’ third-party action. No additional attorney’s fee is provided by law.
In determining Sharp was entitled to a portion of CCC’s subrogation award as attorney’s fees, the trial court in this action relied upon the cases of Winfrey v. Carlile v. Nickles, Admr., 223 Ark. 894, 270 S.W.2d 923 (1954); Phillips v. Morton Frozen Foods, 315 F.Supp. 228, (E.D. Ark. 1970); and Boulden v. Herring, 126 F.Supp. 885, (W.D. Ark. 1954). These cases, however, are inapposite, and were limited to the issue as to whether the attorney’s fees in those cases were reasonable or proper under § 11-9-410(a)(2)(A). Here, CCC does not contest the amount of attorney’s fees and costs paid the Sharps’ attorney in their third-party action, but rather agrees that the amount paid Filyaw was reasonable.
Again, the issue here is whether CCC was required to pay an additional attorney’s fee from its subrogation-lien amount. Sharp presents no legal authority imposing such an additional obligation on CCC’s part, and in fact, the authority we have found is directly to the contrary. Burt v. Hartford Acc. & Indent. Co., 252 Ark. 1236, 483 S.W.2d 218 (1972); 2A Arthur Larson, Workmen’s Compensation Law, Subrogation §§ 74.32(a)(2); 74.32(b) n. 30 (1992). Our decision in this respect is consistent with this court’s established rule that attorney’s fees are not allowed except when expressly provided for by statute. Barnett v. Arkansas Transp. Co., 303 Ark. 491, 798 S.W.2d 79 (1990).
In Sharp’s cross-appeal, he points out that, while the trial court below awarded him one-third of CCC’s subrogation interest in attorney’s fees, the court erred in disallowing him an additional amount of costs from CCC’s subrogation award. Once again, the trial court deducted these costs from the full amount of the judgment in the third-party action and awarded these funds to reimburse the Sharps’ attorney the costs he advanced. For the same reasons we held that the trial court erred in awarding additional attorney’s fees as costs of collection, we hold CCC is also not required to pay additional costs from its subrogation award. Simply put, no legal authority requires CCC to pay additional costs, CCC had already paid its statutory or proportionate share of the costs incurred in the third-party action, and it has no further obligation under the law.
For the reasons above, we reverse the trial court’s granting of summary judgment to the Sharps on direct appeal and affirm the trial court’s decision on cross-appeal.
Section 11-9-410 was previously codified as Ark. Stat. Ann. § 81-1340 (Repl. 1976). | [
20,
108,
-39,
-120,
9,
-32,
56,
58,
124,
-32,
-27,
82,
-49,
-28,
13,
111,
-93,
45,
81,
107,
118,
-93,
19,
74,
-58,
-45,
-15,
-122,
-102,
79,
44,
-9,
69,
16,
10,
-44,
-57,
-118,
-59,
92,
-62,
4,
-117,
-27,
-39,
4,
48,
-18,
18,
79,
81,
14,
122,
56,
20,
-49,
8,
42,
125,
-87,
-47,
49,
-45,
5,
126,
1,
33,
4,
-100,
71,
84,
10,
-104,
49,
56,
-22,
114,
-74,
-62,
116,
97,
-119,
76,
44,
99,
34,
9,
-27,
-100,
-104,
14,
-10,
31,
37,
-124,
121,
27,
15,
-106,
-100,
122,
20,
23,
124,
-8,
13,
31,
40,
-125,
-114,
-48,
-78,
-115,
36,
-36,
-125,
-18,
7,
54,
97,
-52,
-94,
95,
-113,
59,
-45,
7,
-100
] |
George Rose Smith, J.
This suit was brought by fourteen landowners and two tenants to enjoin the appellant, T. B. Turner, from maintaining a reservoir which is alleged to obstruct the natural drainage of the plaintiffs’ lands. The plaintiffs also asked damages for crop destruction that occurred in 1948 as a result of inundation caused by the Turner reservoir. Other landowners intervened to assert similar causes of action. The chancellor, after hearing testimony for eight days and after viewing the area in question, entered judgments totaling $6,773 and issued a mandatory injunction requiring Turner to cut 500-foot openings in the banks of his reservoir at four specified points. Turner appeals, and the appellees cross appeal.
In 1948 Turner constructed, apparently for duck-hunting purposes, a rectangular reservoir that is one and three-quarters miles long from north to south and a mile wide. The levee enclosing this reservoir is about three feet high. The principal issue is whether Turner, by putting in this levee, has wrongfully obstructed nat ural -watercourses or lias merely fended off surface waters — as lie is entitled to do if lie does not unnecessarily damage his neighbors. Little Rock & F. S. Ry. Co. v. Chapman, 39 Ark. 463, 43 Am. Rep. 280; Baker v. Allen, 66 Ark. 271, 50 S. W. 511, 74 Am. St. Rep. 93.
Tliis part of Jefferson County slopes gently to the southeast and normally drains in that direction. The slope is so gradual that the fall is only a foot between the west bank of the reservoir and the east bank. In 1948 the appellees owned or occupied lands that lie generally northwest of the reservoir. It is practically undisputed that in November of that year many of the appellees were compelled to abandon their homes because of high water. Several of them testified that for from ten to twenty years they had made crops annually on these farms, but 1948 was the first year in which high water forced them to vacate their homes. Their theory of the case is that the southeastward slope is so nearly horizontal that even a three-foot levee impounds water that extends for miles to the northwest.
After studying the testimony we are convinced that Turner has obstructed at least two natural watercourses. On several occasions we have defined a watercourse. Frequently cited is Boone v. Wilson, 125 Ark. 364, 188 S. W. 1160, where we said: “A watercourse is defined to be a running stream of water; a natural stream, including rivers, creeks, runs and rivulets. There must be a stream, usually flowing in a particular direction, though it need not flow continuously. It may sometimes be dry. It must flow in a definite channel, having a bed and banks, and usually discharges itself into some other stream or body of water. It must be something more than mere surface drainage over the entire face of the tract of land occasioned by unusual freshets or other extraordinary causes.” In Richardson v. State, 77 Ark. 321, 91 S. W. 758, we defined a bayou as a sluggish watercourse, a small river or creek, an offshoot of a river.
In the light of these definitions it is pretty clearly proved that Turner has obstructed natural streams rather than mere surface waters. The north levee of his reservoir crosses what was formerly Short Bayou. At its point of entry this bayou had a clearly visible channel that is not only described by witnesses but is also discernible upon aerial photographs of the area. After entering the Turner property this bayou flattened out and became a broad sheet of water in the nearly level timberland, but the evidence indicates that the water continued to flow sluggishly toward the southeast until the stream reappeared with well defined banks at a point east of the reservoir. In much the same way Fish Lake Bayou used to flow across the southern part of the appellant’s reservoir. At the west line this bayou had a visible channel, but several hundred feet after entering the Turner property Fish Lake Bayou temporarily “fingered out” and became a marsh or “scatters” before reappearing as a bayou at a point inside the east boundary of the reservoir. The fact that these streams temporarily flattened out and flowed without well defined banks did not destroy their character as watercourses, nor did this fact deprive the appellees of their right to insist that the water’s flow be unimpeded. The leading cases on this point recognize that at intervals a stream may spread out and become sluggish without thereby being reduced to surface water. Gillett v. Johnson, 30 Conn. 180; Macomber v. Godfrey, 108 Mass. 219, 11 Am. Rep. 349; Mitchell v. Bain, 142 Ind. 604, 42 N. E. 230.
The appellant insists, however, that unless he can obstruct these bayous his lands are condemned to be forever a broad right-of-way for water draining from the north and west. This fear is not well grounded. All that the upland proprietors may legally demand is that the natural streams be permitted to continue their eastward flow without hindrance. Turner is charged with notice that the land he bought is crossed by living watercourses. He may reclaim his swampland by confining these streams' between levees or within ditches, but in doing so he must provide channels that will take care of the bayous’ waters in ordinary conditions and in times of any recurrent floods that may he reasonably expected. Undoubtedly be may maintain a reservoir on bis property, but in doing so be cannot flood his upland neighbors by blocking the flow of natural watercourses.
We do not think, however, that the record supports the chancellor’s finding that 500-foot openings must be cut at four points in the banks of the reservoir. The evidence indicates that somewhat narrower openings may be sufficient to permit the passage of the water. Without attempting to define the width of the cuts we modify the decree to provide that the appellant must remove his levees for sufficient distances to allow the waters to flow without obstruction in normal conditions and in times of recurrent floods.
Reversible error is assigned in several rulings upon the admission or exclusion of evidence. This is a chancery case, however, which we try ele novo. It is enough for us to say that, even conceding all the appellant’s contentions, the preponderance of the testimony nevertheless supports the decree.
- Finally, it is contended that the money judgments are excessive. In several instances this is true, owing to two errors in the chancellor’s computation of damages. Most of the judgments are for the value of cotton crops that were inundated before the appellees were able to finish gathering them. A number of the appel-lees testified that they would have picked the cotton themselves, and in these cases the chancellor charged nothing for the expense of gathering the crop. This was error. The appellees were entitled only to the value of the cotton at the time of its destruction, and not to charge them with the cost of picking it would be to reimburse them for labor that was never performed. We have held that when a matured crop is destroyed the cost of harvesting it should be deducted in arriving at its value. Moore v. Lawson, 210 Ark. 553, 196 S. W. 2d 908. Second, several of the plaintiffs received judgments for more than, the amounts they sued for. In a very similar case of crop damage, where the jury returned a verdict for $1,347.50 even though the complaint alleged only $390 as damages, wo held that the amount stated in tlie complaint measured the máximum recovery. Western Union Tel. Co. v. Byrd, 197 Ark. 152, 171, 122 S. W. 2d 569; see also Cohn v. Hoffman, 45 Ark. 376. These two errors in computation require us to recalculate nearly all the judgments, hut we see no reason to burden the reports with figures that are of no conceivable value as a precedent. These matters are set forth in an appendix that will not be published in the official or unofficial reports.
On cross appeal it is urged that the appellees are entitled to double damages under Ark. Stats. 1947, § 35-523. These plaintiffs elected to sue in equity, however, and in the absence of any showing of willful wrongdoing on Turner’s part we are not willing to say that he should be subjected to a penalty. See Cooley v. Lovewell, 95 Ark. 567, 130 S. W. 574; Hendrix v. Black, 132 Ark. 473, 201 S. W. 283, L. R. A. 1918D, 217.
With the indicated modifications the decree is affirmed. | [
-15,
110,
-100,
60,
-104,
-24,
56,
-78,
73,
-86,
-13,
83,
-51,
5,
4,
53,
-61,
61,
117,
121,
-60,
-73,
31,
-90,
82,
-13,
123,
-35,
-70,
93,
-20,
-41,
76,
24,
74,
-43,
-62,
-88,
73,
88,
-98,
23,
27,
-19,
-39,
64,
54,
111,
54,
79,
53,
-115,
-13,
46,
29,
-61,
9,
44,
-53,
44,
65,
113,
-102,
76,
-1,
20,
33,
-25,
-126,
35,
72,
42,
-112,
-80,
8,
-20,
115,
50,
-126,
117,
7,
-102,
12,
114,
98,
11,
45,
-49,
44,
-128,
6,
-33,
-119,
-90,
-46,
8,
66,
64,
-66,
-99,
120,
16,
102,
-2,
100,
-59,
89,
104,
-125,
-126,
-108,
-77,
-125,
-24,
-103,
19,
-29,
23,
32,
116,
-51,
-86,
92,
69,
113,
-33,
15,
-7
] |
Lyle Brown, Justice.
Appellant John Shelton was sentenced to four years confinement on a plea of guilty to grand larceny. At the tíme of sentencing he sought credit for time spent in jail. The trial court ordered the commitment pre-dated to give credit for only a part of the time spent in jail. The sole question on appeal is whether appellant was entitled, as a matter of right, to credit for the full time he was incarcerated.
This court has twice been faced with the same question. Kimble v. State, 246 Ark. 407, 438 S.W. 2d 705 (1969); Harper v. State, 249 Ark. 1013, 462 S.W. 2d 847 (1971). In Kimble, appellant received less than the maximum sentence. He sought, among other relief, credit for time served in jail prior to trial. On appeal we said: “Appellant argues that he should have been given credit on the present sentence for this amount of time. As to the days served in jail, we do not agree, for we have no statute permitting this to be done”. In Harper, we had the same question before us and we ruled as in Kimble. Also. see Gross v. Saruer, 307 Fed. Supp. 1105 (E. D. Ark., 1970). We are further persuaded by legislation on the subject. Ark. Stat. Ann. § 43-2813 (Supp. 1971). There it is provided that the sentencing judge may in his discretion allow credit for time served in jail. It is of considerable significance that the legislature has treated the subject and did not see fit to make the credit mandatory.
We hold that when the sentence imposed plus time served in jail awaiting trial does not exceed the maximum penalty, the prisoner is not entitled as a matter of right, to credit for full time served in jail while awaiting trial.
Affirmed.
Byrd, J., dissents. | [
112,
-22,
-35,
62,
11,
96,
19,
-100,
82,
-93,
-12,
91,
-83,
-49,
5,
121,
49,
75,
85,
124,
77,
-73,
39,
89,
-78,
-13,
73,
87,
114,
107,
-19,
-44,
78,
-80,
-54,
117,
102,
-56,
-25,
92,
-50,
-124,
-69,
101,
-48,
0,
32,
41,
22,
14,
49,
23,
-93,
42,
16,
-53,
109,
44,
75,
43,
-112,
-79,
-102,
15,
107,
84,
-95,
5,
-111,
7,
-48,
38,
-120,
57,
1,
-24,
114,
-122,
-126,
84,
73,
-101,
-116,
102,
98,
-96,
21,
-18,
-68,
-87,
14,
122,
-99,
-89,
-112,
81,
75,
77,
-74,
-35,
126,
20,
12,
-2,
-27,
-60,
81,
44,
1,
-34,
-76,
-111,
-115,
101,
-122,
-78,
-29,
37,
-112,
113,
-52,
-30,
92,
-58,
122,
27,
-114,
-10
] |
J. Fred Jones, Justice.
This is an appeal by Gilbert and Lottie Weir from an adverse chancery court decree on a petition they filed against Revo Trucks and Sadie Trucks for the removal of obstructions from a public road.
The appellants, Gilbert and Lottie Weir, are husband and wife and so are the appellees, Revo and Sadie Trucks. For convenience the parties will be referred to hereafter as Weir and Trucks. Weir and Trucks own adjoining properties. The Weir property lies north and east of the Trucks property and the road involved in this litigation runs east and west and then north and south between the two properties. Throughout the record the road is referred to in separate parts as the “East-West road” and the “North-South road.” That portion of the East-West road in litigation extends the full east-west width of the Trucks property between it and the Weir property to the north, and the North-South road extends from the northeast corner of the Trucks property south between the Trucks property and the Weir property lying east of the Trucks property. The Trucks home is in the northwest corner of his property near the west end of the East-West road. There are also two abandoned houses and a barn on the Trucks property south of the East-West road. One of the abandoned houses and the barn were built by Otto Harding who subsequently sold the property to Trucks. The Weir home is located on his property north of the Trucks property and has access to and from the county highway system over Weir’s own property and has no connection with the East-West road between the Weir and Trucks properties. Weir contends that he needs access over the road here involved to and from his property lying east of the Trucks property, and that he has a right to such access as a member of the traveling public. Trucks built a wire fence within three or four feet of Weir’s fences on the north side of the East-West road and on the west side of the North-South road and this litigation arose when Trucks attached a “Posted, Keep Out” sign on the gate across the west end of the East-West road near his home.
Weir filed the present action against Trucks alleging that a public road had existed between his and Trucks’ land for more than fifty years; that Trucks had built fences and gates across the road and he prayed an order for the removal of the obstructions. Trucks denied the allegations and specifically denied that there had been a public road between the lands for more than fifty years.
The chancellor found some evidence that a public road had been established by prescription over the area many years ago but found that its use had been abandoned by the public for more than seven years, and the chancellor dismissed Weir’s petition for want of equity. The chancellor set out in some detail his findings from the evidence in this case and from our own examination of the record, we agree with the findings made by the chancellor.
The substance of Mr. and Mrs. Weir’s testimony was to the effect that Mrs. Weir’s father owned a part of their land many years ago and by mutual agreement about 1915 he and the then owner of the Trucks land set their fences back TA feet from their true common boundary line and established a road between their properties for the use of the general public. They said the general public continued to use the road until Trucks built a fence within two or three feet of their own fence and placed a “Posted, Keep Out” sign on the gate at the west end of the road near Trucks’ house.
Otto Harding, the last person besides Trucks who lived on the road, testified that the road had been an old log road but had grown up in bushes and trees when he purchased his ten acres twenty years ago. He said when he told Weir he had purchased the land and intended to build a house on it, Mr. Weir remarked that there was no road to it. He said he purchased the land from Trucks and Trucks agreed to give him all the land necessary for a road. He said he borrowed the money with which to purchase the land and it was necessary to prove to the satisfaction of the lender that a road would be built to the property before the loan was made. He said he cleared out the road from its west end to his house and finally prevailed upon the county judge to pull a ditch on each side of the road. He said the road was used by people coming to his home. Mr. Harding testified that gates were maintained at the west and east end of the East-West road and a gate was maintained and kept locked at the south end of the North-South road. He said he built the gate across the west end of the East-West road about 18 or 19 years ago, and that he maintained two other wire “gaps” across the East-West road adjacent to his property. .
Mr. Weir admitted the existence of gates for many years across the west and east ends of the East-West road and at the south end of the North-South road, and admitted the existence of wire gaps across the road. The gate at the east end of the East-West road was owned and maintained by Weir.
Mr. Trucks testified that many years ago, before Weir purchased the property east of his own, a family lived on that portion of the property at the east end of the East-West road and traveled the East-West road to and from their home. Trucks said he placed the no trespassing sign on the gate to keep people from dumping trash on his property and he built his fences so close to Weir’s fences to retain his bull, which would not jump a double fence. He said he had his property lines surveyed and built his fences within his legal boundary lines. His testimony as to the survey and its accuracy is not controverted. Harding also testified that he had his ten acres surveyed and Weir’s fence was on the true division line according to the survey.
There was some evidence that hunters and fishermen visiting local stock ponds still used the road and that on occasion adjacent landowners used it on foot and horseback in visiting their property; but from the overall evidence, if the road involved in this case was ever a public road, we agree with the chancellor that it became a public road by prescription and has long since been abandoned by the public as a public road and, that was actually the only question before the chancellor.
A public road may be established by judgment of the county court rendered in accordance with the statute or by voluntary dedication or by prescription. Craig v. Greenwood Dist. of Sebastian County, 91 Ark. 274, 121 S.W. 280.
In the case of McLain v. Keel, 135 Ark. 496, 205 S.W. 894, partially relied on by the chancellor in the case at bar, this court said:
“It is well settled that where a highway is used by the public for a period of more than seven years, openly, continuously and adversely, the public acquires an easement by prescription or limitation of which it can not be disposed by the owner of the fee. * * * But it is also equally well settled that the right to a public highway once established by limitation or prescription may be abandoned by non-user, and if so abandoned for a period of more than seven years, the right of the owner of the fee to re-enter and to thereby exclude the public from the use of the highway is restored.”
See also Martin v. Bond, 215 Ark. 146, 219 S.W. 2d 618.
In the case of Porter v. Huff, 162 Ark. 52, 257 S.W. 393, the facts were much like those in the case at bar, and in that case we said:
“It is unnecessary to decide whether the public acquired a right to the use of the road as a public road by prescription or seven years adverse possession, for it lost any right it may have acquired by acquiescing in permissive use thereof for a period of more than seven years after the road was closed by gates. When appellee inclosed his land and placed gates across the road, it was notice to the public that thereafter they were passing through the land by permission, and not by right. The undisputed evidence shows that these gates were maintained by appellee across the road for ten or eleven years, without objection on the part of the public.”
See also Pierce v. Jones, 207 Ark. 139, 179 S.W. 2d 454, and Munn v. Rateliff, 247 Ark. 609, 446 S.W. 2d 664. In Munn v. Rateliff this court said:
“The rule is well established that when a gate is maintained for more than 7 years across a road in which the public has a prescriptive easement, then it is deemed that the public has abandoned the road and the landowner has the right to close it permanently and restrict the road to permissive use. Brooks v. Reedy, 241 Ark. 271, 407 S.W. 2d 378 (1966); Nelms v. Steelhammer, 225 Ark. 429, 283 S.W. 2d 118 (1955); Mount v. Dillon, 200 Ark. 153, 138 S.W. 2d 59 (1940); Porter v. Huff, 162 Ark. 52, 257 S.W. 393 (1924). In these cases we recognized the rule that the installation of the gap or gate .was notice to the public that the road was being used by permission and not as a matter of right. It is the existence of the gate and not how continuously it is closed that constitutes notice. In Brooks v. Reedy, supra, we said: '* * # But it is, we think, clearly established that the gates w;ere in existence at all times from 1952 on, whether up or down.’ And further: ‘* * * It may well be that those using the roadway did not always put up the gaps; however, be that as it may, the important fact is that the fence and gates were in place for the statutory period, and, under the language in Mount v. Dillon, supra, the fact that the gates were not always closed does not make any difference.
In the case at bar the chancellor had the opportunity to see and hear the witnesses in evaluating the evidence .which was in conflict. In such a situation our rule is that when the evidence is conflicting and evenly poised or nearly so, the judgfnent of the chancellor on the question of where the preponderance of the evidence lies is considered as persuasive. Turnage v. Matkin, 227 Ark. 528, 299 S.W. 2d 831 (1957). In view of this well established rule and after a review of the testimony and exhibits presented in the case at bar, we cannot say the findings of the chancellor are against the preponderance of the evidence.”
See also Simpson v. State, 210 Ark. 309, 195 S.W. 2d 545; Lusby v. Herndon, 235 Ark. 509, 361 S.W. 2d 21.
We agree with the chancellor in the case at bar, that if the public did ever have any right to use the road in question, such right was acquired by prescription and was lost when the public acquiesced for more than seven years to the building and maintenance of the gates and gaps across the road. Following such period of acquiescence by the public without complaint, the traffic over the road became permissive and the owner of the land over which the road runs has the right to close the road to the public.
In addition to the appellants’ contention that the chancellor erred in failing to order the roads opened as public roads, they now contend on this appeal that the chancellor erred in failing to order the roads opened as private roads. This second contention was not before the chancellor at the trial and we are unable to consider assignments of error on contentions raised for the first time on appeal. Wright v. Ark. State Highway Comm’n, 255 Ark. 158, 499 S.W. 2d 606.
The decree is affirmed. | [
-15,
-20,
-40,
-20,
-86,
0,
25,
-70,
73,
-93,
-11,
-41,
-81,
-54,
8,
99,
-9,
125,
-15,
107,
-11,
-78,
95,
-94,
115,
-13,
-77,
-33,
-5,
78,
-28,
87,
92,
96,
-53,
93,
102,
10,
-59,
92,
76,
3,
9,
-19,
-47,
80,
56,
-85,
84,
15,
117,
-114,
-29,
44,
24,
-29,
-88,
108,
-53,
44,
-47,
-77,
-83,
20,
95,
6,
-128,
100,
-72,
-127,
-22,
25,
-112,
117,
-128,
-8,
119,
-90,
-107,
-12,
67,
-103,
8,
-78,
-30,
3,
85,
-25,
-28,
24,
12,
-6,
13,
6,
-102,
57,
73,
32,
-76,
-99,
112,
80,
119,
-2,
-20,
-59,
29,
104,
4,
-49,
50,
-79,
-115,
-72,
-124,
65,
-21,
9,
50,
113,
-49,
-14,
93,
7,
17,
31,
14,
-15
] |
David Newbern, Justice.
In this municipal land use zoning case we must determine whether a land use which violated a zoning ordinance became a permitted, preexisting, non-conforming, use when the zoning ordinance was repealed and replaced by another zoning ordinance. We hold that a nonconforming use of land which violated a previous zoning ordinance is not a permitted non-conforming use under a subsequently enacted zoning ordinance. The decree of the chancellor to that effect is affirmed.
The case was submitted to the chancellor upon a stipulation of facts. In 1985, Robert L. and Opal Robertson, the appellants, owned a 40-acre tract, zoned “agricultural,” on which they had one mobile home. At that time Ordinance 177 of the City of Lowell, the appellee, allowed one mobile home per 20 acres of land in an agricultural district or zone, subject to approval of the Lowell Planning Commission. A neighbor who wished to place a mobile home on his one acre of land adjoining that of the Robertsons deeded his land to the Robertsons. The planning commission approved the placement of a second mobile home on the tract which then consisted of 41 acres. Ordinance 222, passed onApril9,1985, amended Ordinance 177, but it made no change in the provision pursuant to which the second mobile home on the tract was approved.
Sometime prior to June 17,1986, the Robertsons moved yet another mobile home onto the tract without planning commission approval. The stipulation states that they deeded back to their neighbor the one acre previously added to their 40-acre tract, but it does not state when that occurred. The Robertsons do not deny that the third mobile home was placed on their land in violation of Ordinances 177 and 222, thus we presume the deed back to the neighbor was executed after the third mobile home was placed on what was then a 41-acre tract.
On July 8,1986, the city adopted its third zoning ordinance. This one was a comprehensive ordinance which repealed “[a] 11 ordinances or parts of ordinances in conflict” with it. It provided that mobile homes could be placed only in mobile home parks and that “[n] on-conforming use of land and structures may be continued and improved but not expanded so long as it remains otherwise lawful.” The city sought an injunction to have the second mobile home on the now 40-acre tract of the Robertsons removed because it was in violation of Ordinance 238. The Robertsons contended that the two mobile homes remaining on the 40-acre tract constituted a non-conforming use permitted under the ordinance. They did not contend in their brief to the chancellor, and they do not contend here, that their deed back to their neighbor caused their land to conform to Ordinance 222 and thus to constitute a lawful non-conforming use permitted under Ordinance 238. The record does not demonstrate when that deed was executed, thus no such argument can be the basis of a decision in favor of the Robertsons on this appeal.
The Robertsons’ argument is that their use is a permitted non-conforming use under Ordinance 238 because, by repealing the preceding zoning ordinances, the city made lawful all uses preceding Ordinance 238. The city argued, and the chancellor found, that Ordinance 238 was a repeal and reenactment of the zoning law. Thus he concluded the repeal was “neutralized,” and the Robertsons’ extra mobile home was at all times in violation of the city’s zoning laws and therefore did not qualify as a remaining non-conforming use under Ordinance 238.
We need not discuss whether the enactment of a comprehensive zoning law necessarily completely repeals a preceding comprehensive zoning law because we agree with the chancellor’s conclusion that, to the extent there has been a repeal, the repeal is “neutralized” with respect to continuation of the rights and liabilities under the preceding law. In Chism v. Phelps, 228 Ark. 936, 311 S.W.2d 297 (1958), we held that where a statute is repealed and all or some of its provisions are simultaneously reenacted, the reenactment is considered a reaffirmance of the old law, and the provisions of the repealed act thus reenacted are continued in force. The Robertsons argue, however, that the provisions of Ordinances 177 and 222 with respect to mobile home regulation were not continued or reenacted because Ordinance 238 established a complete set of new rules applicable to them. That argument disregards the apparent intent of the city not to repeal the old zoning law so as to legalize every land use in violation of it, but to expand the scope of impermissible uses.
In the Chism case it was contended, in effect, that by repealing the law establishing the comparative negligence standard in torts cases and reenacting it with changes, the general assembly had reinstated the contributory negligence standard with respect to an automobile accident which occurred before the repeal and enactment of the new law. We rejected that argument, pointing out that the general assembly intended no such thing. We noted that by reenacting a comparative negligence rule the general assembly “demonstrated a clear disinclination to restore the common law rule.” 228 Ark. at 942, 311 S.W. at 300. Paraphrasing that decision, and applying it by analogy to these ordinances, we say here that by reenacting a comprehensive zoning ordinance the City of Lowell demonstrated a clear disinclination to return to being a city without land use regulation.
To be valid, a nonconforming use must have been a lawful use when established, and so a use which was established in violation of either public law or private property rights is usually not recognized as a nonconforming use. If the previous use was a zoning violation, the case is clear that such use cannot attain the status of a nonconforming use under the same (or a subsequent [)] zoning ordinance [footnote omitted].
N. Williams and J. Taylor, 4A Williams American Planning Law, § 110.02, p. 89 (1986). See also R. Anderson, 1 American Law of Zoning, § 6.14, p. 481 (1986).
Affirmed.
Purtle and Glaze, JJ., dissent. | [
-15,
124,
-40,
-84,
26,
99,
24,
-72,
122,
-71,
-11,
27,
-17,
-54,
12,
1,
-30,
125,
81,
89,
-59,
-73,
18,
-61,
84,
-45,
67,
83,
-8,
109,
102,
-121,
94,
36,
-62,
-3,
-60,
72,
-19,
-38,
-106,
7,
-117,
101,
-47,
66,
52,
59,
66,
15,
85,
31,
-77,
44,
53,
-49,
112,
44,
73,
61,
89,
-8,
-68,
13,
107,
15,
-128,
-92,
-104,
-123,
120,
11,
-112,
49,
8,
-24,
119,
-80,
-106,
116,
71,
-37,
12,
34,
98,
1,
109,
-1,
-8,
24,
14,
-38,
109,
-122,
-112,
25,
97,
98,
-97,
-107,
84,
6,
76,
126,
-52,
-123,
31,
108,
5,
-89,
20,
-79,
77,
-8,
-116,
-127,
-13,
7,
49,
48,
-54,
-54,
94,
98,
115,
91,
-114,
-38
] |
George Rose Smith, Justice.
Melvin Rice died intestate in April, 1981, survived by four children. At his death Melvin owned 11 certificates of deposit issued by the Corning Bank, totaling $39,525.08 and payable on Melvin’s death to his brother, the appellee Marlin Rice. A controversy arose between Marlin and Melvin’s administrator, because Melvin had not designated in writing, over his signature, that the CD’s were payable on his death to Marlin, as the statute and cases require. Ark. Stat. Ann. § 67-552 (e) (Repl. 1980); Cook v. Bevill, 246 Ark. 805, 440 S.W.2d 570 (1969); McDonald v. Treat, 268 Ark. 52, 593 S.W.2d 462 (1980).
To settle that dispute the bank filed this bill of interpleader, asking the court to determine ownership as between Marlin and the estate. Marlin, however, filed a counterclaim against the bank, seeking judgment for the face amount of the certificates on the ground that the bank had negligently failed to carry into effect Melvin’s intention that the certificates be made payable on his death to Marlin. This appeal by the bank is from a decree holding (a) that the bank is liable to the estate as the owner of the certificates and (b) that the bank is also liable to Marlin, as the third-party beneficiary of the bank’s contract with Melvin, for the amount of all the certificates except one, which was issued more than five years before Melvin’s death. Marlin cross appeals as to the excepted certificate. The bank argues several theories in its effort to escape double liability. Our jurisdiction is under Rule 29 (1) (c).
The facts are not in dispute. The bank never requested the purchaser of a CD to designate in writing the payable-on-death beneficiary of the CD. Melvin Rice was a regular customer of the bank up until his death, buying CD’s from time to time. On July 20,1978, he bought a $3,000 certificate payable to himself or on his death to Marlin. During that transaction, which was handled by Louise Coleman, a vice-president of the bank, he asked about his other certificates and learned that some were payable on his death to his son Robert and some to his brother Marlin. He directed that all of them be made payable to Marlin. Ms. Coleman made appropriate changes on the bank’s carbon copies of the various certificates. She asked Melvin to bring in the originals so that he could initial the changes on them as well. The chancellor found that he did bring in the originals, which is obviously true, because in every instance the change that was made on the original conformed exactly to the change on the bank’s copy, except that it was written on a different typewriter. Ms. Coleman conceded that the changes could have been made by someone else in the bank. That evidently happened, because the various changes could not have conformed exactly to the bank’s records unless they had been made at the bank. Certificates bought later by Melvin were made payable on his death to Marlin.
The present controversy arises solely because the bank did not require Melvin to comply with the statute by designating in writing that the certificates be payable on his death to Marlin. Ever since the Cook case was decided in 1969 we have consistently held that a payable-on-death certificate is not payable unless the holder signs some instrument to that effect. Hence the trial court was right in holding that the certificates now in issue are owned by Melvin’s estate. Indeed, the bank does not question that holding except by arguing that the bank should not be doubly liable.
The bank’s additional liability for its negligence is clear. Marlin’s cause of action as a third-party beneficiary is established by two similar cases. In Lovell v. Marianna Federal S. & L. Assn., 264 Ark. 99, 568 S.W.2d 38 (1978), we imposed liability in an analogous situation:
After all the deposit of funds in a joint account with right of survivorship under such circumstances is nothing more than a convenient way to plan one’s estate — it has sometimes been referred to as a ‘Poor Man’s Will.’ A bank holding out to the public that money could be so deposited and withdrawn is not in a position to allege fraud to protect it from its malfeasance ....
On facts similar to the case at bar the Court of Appeals held the bank liable to a third-party beneficiary of the mishandled transaction between the bank and the purchaser of the certificate, saying:
There was ample testimony to show that Rebecca Self intended that the three certificates were to pass to Barbara Ann Baker upon Mrs. Self’s death, and that Mrs. Self effectively conveyed that intention to appellee [the bank] .... The loss to appellant arose because of the failure of appellee to follow its own procedures.
The appellee is not required, or permitted, to give legal advice to its customers, but it does hold out to the public that money can be deposited and passed on in the way Rebecca Self attempted.
Baker v. Bank of Northeast Arkansas, 271 Ark. 948, 611 S.W.2d 783 (Ark. App. 1981).
We are not impressed by the bank’s argument that Marlin had to offer testimony that the bank holds itself out as competent to carry out the wishes of its customers in issuing certificates of deposit. A bank can certainly be expected to exercise ordinary care in handling its customers’ business. We agree with the trial court’s disposition of this argument:
The Corning Bank, as well as any banking institution who receives money from its depositors in exchange for certificates of deposit, does indeed hold itself out to issue the Certificate of Deposit in such manner as to comply with the wishes of the depositor. In this instance, Melvin Rice clearly intended that at his death his brother was to have the proceeds and the bank by the testimony of its own employees and former employees admits that it attempted to comply with his wishes. Unfortunately, the bank simply did not comply with the provisions of Section 67-552, Arkansas Statutes Annotated, and it is not incumbent upon the depositor to insist that the provisions of that statute are complied with because the average layman has absolutely no knowledge of the statute. On the other hand, every banking institution should have knowledge of any relevant statutory provision regarding banks in the State of Arkansas.
The bank’s other theories for reversal can be disposed of quickly. Inasmuch as the statute had been in force for years and had been construed in 1969 in Cook v. Bevill, supra, our present holding is in no way unfairly retroactive as to any vested right. As to the statute of frauds, the third-party beneficiary agreement did not have to be in writing, for the statute applies only to contracts incapable of being performed within a year. Reed Oil Co. v. Cain, 169 Ark. 309, 275 S.W. 333 (1925). Here the bank could of course have performed its contract had Melvin died before the expiration of a year.
The bank argues in its brief that it should not be liable twice for the same money. That argument misses the point. The bank has always been liable for the amount of the CD’s, which represented money belonging not to the bank but the purchaser. The only question is whether the bank should pay for its negligence. If not, it gets off scot-free from carelessness that caused a substantial loss to Marlin Rice. There is no double liability, only a single liability for negligence.
On cross appeal Marlin argues that the chancellor was wrong in holding that the statute of limitations bars Marlin’s cause of action upon the CD issued more than five years before Melvin’s death. That argument must be sustained. A statute of limitations does not begin to run until the plaintiff has a complete and present cause of action. Hunter v. Connelly, 247 Ark. 486, 446 S.W.2d 654 (1969). Marlin could not have asserted any cause of action upon the CD’s until Melvin's death, for until then Melvin was free to change the alternative payee or to cash the CD’s himself. Marlin also argues that the trial court should have allowed him more interest on his recovery, but his terse argument, unsupported by a clear statement of the facts or by any citation of authority, does not meet his burden of showing error.
Affirmed on direct appeal, reversed on cross appeal as to the amount of the bond disallowed by the trial court.
Adkisson, C.J., not participating.
Purtle, J., dissents. | [
48,
109,
-120,
92,
24,
-32,
10,
-70,
99,
98,
98,
83,
121,
70,
21,
109,
115,
53,
89,
105,
-73,
-93,
55,
72,
-46,
-13,
-7,
-43,
-80,
93,
-82,
-106,
77,
36,
42,
93,
102,
-126,
-59,
-46,
-114,
0,
43,
100,
-5,
-127,
48,
46,
0,
-115,
69,
-113,
-77,
49,
25,
110,
77,
46,
-39,
-88,
80,
-95,
-101,
-123,
-3,
21,
-79,
37,
-102,
15,
-48,
44,
-40,
115,
16,
40,
50,
-74,
-58,
116,
105,
25,
8,
106,
99,
0,
-123,
-19,
-104,
-104,
23,
-26,
31,
-122,
-106,
72,
33,
111,
-73,
-97,
126,
20,
6,
-12,
-10,
87,
29,
40,
31,
-50,
-106,
-111,
-20,
94,
-100,
11,
-1,
6,
32,
113,
-53,
-94,
93,
71,
124,
-45,
7,
-12
] |
Per Curiam.
Jerry Cash, appearing pro se and in forma pauperis, has petitioned this court to order the State of Arkansas to reproduce the appellant’s abstract and brief on appeal. This case is civil in nature and there is no duty on the part of the state to provide a civil litigant with special materials, assistance, or printing. We held held a number of times that such things will be granted in a civil case only upon a showing of substantial merit. Patterson v. Smith, 289 Ark. 564, 712 S.W.2d 922 (1986); Williams v. State, 289 Ark. 567, 712 S.W.2d 924 (1986); Hayes v. Lockhart, 288 Ark. 419, 706 S.W.2d 179 (1986); Glick v. Lockhart, 288 Ark. 417, 706 S.W.2d 178 (1986).
No such showing has been made in this case and the motion, •therefore, is denied.
IT IS SO ORDERED.
Purtle, J., dissents. | [
112,
-24,
-27,
62,
75,
96,
58,
-98,
113,
-31,
100,
83,
-91,
122,
-124,
89,
-29,
63,
116,
115,
-33,
-77,
119,
73,
122,
-77,
-71,
-44,
-75,
73,
-26,
118,
78,
48,
-30,
-43,
70,
72,
-57,
84,
110,
1,
57,
77,
105,
-23,
48,
35,
114,
15,
49,
-97,
-13,
44,
24,
75,
-19,
44,
73,
-74,
72,
-72,
-104,
23,
61,
20,
-77,
-108,
-100,
-123,
88,
10,
-104,
57,
0,
-24,
50,
-90,
-110,
84,
107,
-71,
9,
102,
98,
2,
52,
-49,
-112,
-84,
102,
-33,
-115,
-25,
-112,
25,
74,
43,
-106,
-97,
127,
20,
15,
-6,
123,
21,
31,
108,
15,
-114,
-106,
-93,
39,
98,
12,
75,
-21,
35,
16,
117,
-59,
-30,
92,
83,
51,
-101,
-114,
-102
] |
PER CURIAM
This is a petition for bail pending retrial of petitioner Harold Sherman Upton following the reversal of his first degree murder conviction, Upton v. State, 254 Ark. 664, 497 S.W. 2d 696. The trial court in refusing bail as in capital offense cases recognized the effect of Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), on our death penalty statutes, but took the position that Act 438 of 1973 reinstated the death penalty as to felony murder cases committed prior to the effective date thereof. We disagree.
Since the authorities define an ex post facto law as one that renders an act punishable in a manner in which it was not punishable when committed, White v. Brown, 468 F. 2d 301 (9th Cir. 1972), it follows that, in view of Graham v. State, 253 Ark. 462, 486 S.W. 2d 678 and Kuehn v. State, 253 Ark. 889, 489 S.W. 2d 505, the capital felony provisions of Act 438 cannot be applied retrospectively to offenses committed prior to its adoption, Ark. Const. Art. 2 § 17.
This matter is referred back to the trial court for the fixing of bail. | [
112,
110,
-11,
-66,
11,
-63,
24,
24,
-14,
-29,
97,
113,
-19,
-17,
0,
113,
115,
77,
117,
121,
-43,
-105,
55,
73,
115,
-109,
85,
-41,
119,
-51,
-26,
118,
76,
96,
74,
-43,
-58,
-86,
-31,
-38,
-114,
4,
-103,
117,
-39,
-47,
48,
42,
-46,
15,
113,
-100,
-93,
42,
22,
-25,
105,
108,
89,
110,
80,
-119,
-104,
-123,
-21,
22,
-95,
-124,
48,
-93,
-16,
123,
56,
49,
24,
-24,
115,
-122,
-122,
84,
107,
9,
-84,
98,
-90,
9,
116,
109,
-72,
-120,
22,
-18,
-87,
-90,
-40,
113,
2,
44,
6,
63,
123,
-108,
46,
106,
-49,
-33,
93,
108,
15,
-50,
-80,
-77,
103,
-83,
-126,
-125,
-29,
37,
112,
117,
-50,
-30,
71,
118,
113,
-37,
-126,
-12
] |
Smith, J.
Appellant alleged, as constituting the cause df action here sued upon, the following facts. The defendants are the executors of the last will and testament of his uncle, Dr. N. H. Grady, who died testate in February, 1926. That on August 4,1924, Dr. Grady sold him 22-2/3 shares of the capital stock of the Citizens’ Independent Gin Company, of Monette, Arkansas, of the par value of $566:66, which sum was paid by plaintiff to Dr. Grady by a cheek dated January 6, 1925, but Dr. Grady had failed and neglected to transfer the stock, and his executors now refuse to do so. It was prayed that the gin company, which was also made a defendant, he required to reissue the stock to plaintiff, and that the purchased stock outstanding in the name of Dr. Grady be canceled.
The gin company filed an answer disclaiming any interest in the litigation and offered to obey any order of the court in regard to the stock, and there was also tendered into court by the gin company certain dividends which had been earned.
The executors filed an answer, in which it was denied that Dr. Grady had sold any stock, in the gin company to plaintiff, but admitted that Dr. Grady had, as a gift, “presented to the plaintiff ten (10) shares of stock, and, although these defendants have offered to have said ten (10) shares of stock covered by certificate issued to plaintiff, he has refused to receive the same.”
Upon the final submission of the cause the chancellor found the facts to be that the plaintiff had not purchased any stock from Dr. Grady, but that “the defendants (the executors) have tendered to the plaintiff ten shares of stock in Citizens’ Independent Gin Company in settlement of this suit, which plaintiff has refused and still refuses; that N. H. Grady, deceased, at one time had intended to> give to plaintiff ten shares of said stock, but had never carried out his intention, ” and upon this finding the complaint was dismissed as being without equity.
The testimony in the case relates principally to a stockholders’ meeting olf the gin company which was held on August 4, 1924. In the minutes of the meeting, as written up by the secretary of the company, it was recited that “Dr. N. H. Grady announced that he wished to retire and, having selected H. D. Grady to represent his gin interest, suggested him as his successor,” and that H. D. Gr'ady was elected a director to succeed his uncle, Dr. N. H. Grady. The secretary admitted, however, that, while he had attended the stockholders ’ meet ing, he was absent from the place of meeting at the time Dr. Grady made the statement which led to the election qf a director to succeed him, and that the portion of the minutes relating to this statement had been based upon statements made to the secretary 'by stockholders, who had attended the entire meeting.
. The depositions of a number of stockholders who Were present at the meeting above referred to were taken about three years after the meeting was held, and this lapse of time accounts for the dimness of the recollection of the witnesses as to the exact statement which Dr. Grady then made,' but the consensus of this testimony is that Dr. Grady then stated that he had given, or had sold, a portion, or all, of his stock to his. nephew, and that he desired this nephew to be elected a director in his place.
Appellant offered in evidence a check dated January 6, 1925, for $566.66, which was payable to, and had been cashed by, Dr. Grady, upon the face of which there was written: “For Gin Stock.’’ Appellant testified that this check was given in payment of the stock, but the chancellor found otherwise, and so do we. It appears that the corporation earned in 1924, and paid in January, 1925,'a dividend of 100 per cent. Appellant received' this dividend from the company and receipted for it, which was 'the exact amount remitted to Dr. Grady; The conclusion that this check was not received by Dr. Grady as payment for the stock upon a sale of it is confirmed by the disposition which appellant made of the dividend earned •and paid for the year 1925. This dividend amounted to 50-per cent., all of which was remitted to Dr. Grady except the dividend on ten shares of the stock, which appellant retained.
The secretary of the corporation identified a letter .which he had written to Dr. Grady on January 23, 1926, this being only a few days prior to Dr. Grady’s death, which,we think correctly recites the facts in regard to this stock, This letter reads in parkas follows:
“Here is the exact standing of your and H. D.’s. position with gin company. You made certain statements to the body, setting out that you would like to- have D. H.'take yóur place; had sold him 10 shares of stock sd that he would be a legal director. Later H. D. presented your letter to the board, which supported your statement to them; it was noted in minutes. While H. D. did not actually have his stock in hand,-they felt him to be a legal director. The body felt that you had made them a wise and useful member, were glad to have him with them and sorry- to see you go out. H. D. has also made them an entirely satisfactory officer, showing a wise judgment in matters of business. Being satisfied on the matter, the board has never called it up. As to issuing the 10 shares to H. D., they feel -that 10 should be presented for cancellation before having the- authority or right to- issue the corporation' stock. That is the only way they ever make a reissue. It will be entirely satisfactory with them to split up your holdings for you in any way you wish, but require equal amount to be placed in their hands for retirement. 'So you see you hold the matter of issuing that stock entirely in your hands. I could not put it out even if I wished.”
Wé think it clear that the gin company and its officers regarded appellant as the owner of a part, at least, of the stock which Dr. Grady had owned; otherwise he would not have been elected a director. The transaction was something more than an unexecuted gift, although the stock was never actually transferred. There was some — 'although slight — consideration for the transaction-. Dr. Grady’s health failed, and he left his home and spent a considerable part of his time in Hot Springs, but desired appellant to succeed him as 'a director, -and this was done. Appellant served as a director, and collected and remitted tó Dr. Grady his dividends.
We -conclude, therefore, that the equity Of the case requires that ten shares of this -stock be reissued to ap pellant, and it is ordered that this he done. Bnt, inasmuch as appellant might have had this relief without suit, and might have had this relief in the court below without prosecuting this appeal, it is further ordered that he pay all costs, including the costs upon this appeal. | [
-14,
-18,
-88,
-98,
26,
-32,
40,
-102,
80,
-62,
101,
83,
-19,
101,
65,
125,
-29,
93,
81,
111,
-10,
-77,
23,
100,
-38,
-77,
-39,
-123,
-75,
-49,
-27,
-42,
77,
52,
10,
-43,
-26,
-58,
-49,
-100,
-50,
0,
41,
-32,
89,
-64,
48,
-21,
68,
71,
81,
30,
-14,
46,
29,
75,
104,
44,
-1,
56,
-64,
-15,
-120,
13,
111,
22,
32,
6,
-104,
-29,
-56,
78,
-104,
49,
33,
-24,
114,
-74,
6,
116,
47,
-99,
8,
98,
98,
43,
33,
-25,
24,
-120,
47,
62,
-99,
-122,
-14,
124,
75,
120,
-66,
-98,
122,
92,
-121,
116,
-8,
-35,
16,
60,
5,
-117,
-42,
-95,
109,
-12,
-98,
7,
-22,
-65,
48,
113,
-39,
58,
93,
71,
118,
-101,
-57,
-48
] |
Lbflar, J.
Plaintiffs Hawkins and Hook suffered personal injuries and Hawkins’ car was damaged in a collision with defendant’s freight train at a highway-railroad crossing in the city of Paragould at about 2:00 a. m. on November 11, 1948. At the trial of plaintiffs ’ action brought to recover for these injuries to person and property, the Circuit Judge directed a verdict for the defendant at the close of all the evidence. Prom the judgment entered upon this directed verdict the plaintiffs appeal.
Since the verdict was directed for the defendant our examination of the evidence must be in its light most favorable to the plaintiffs. Had the case been sent to the jury for a verdict, the jury might have believed the evidence favoring the plaintiffs, and it is our task to determine whether the evidence thus favorably viewed could under the law have sustained a verdict 'for the plaintiffs.
Plaintiff Hawkins, a southeast Missouri farmer, had made a trip in his car from his home to Coal Hill, Ark., to hire cottonpiekers. Plaintiff Hook, a neighbor, accompanied him. Hawkins had hired the needed pickers, who were to go to Missouri on a truck later, and he with Hook had at about 6:00 p. m. on November 10 started back to their home in Missouri. By 2:00 a. m. of the same night, wlien tlie collision occurred, they had traveled the approximately 24b miles from Coal Hill to Paragould and were driving into that city from' the west. Both were watching the road ahead.
The east-west highway in Paragould is crossed at about a 90-degree angle by defendant’s railroad tracks. The tracks are raised some two or three feet above the highway, which inclines gradually up to the tracks on both the east and west. At the time plaintiffs approached from the west, at a proper speed for city driving and with their lowered lights in good condition, defendant’s freight train was standing still on the track while trainmen were making repairs on the train, apparently at its front end. Neither Hawkins nor Hook saw the standing train till they were almost upon it. When they did see it, Hawkins applied his brakes instantly but was unable to avoid crashing squarely into the train, the front of his car being wedged beneath the boxcar which they struck. Both men were injured,-and Hook was knocked unconscious. Hawkins with the aid of bystanders got the unconscious Hook out of the car. Just afterwards the train was pulled a few feet to the south, the trainmen being apparently unaware of the wreck. Plaintiffs’ testimony was that the car was torn up both by the original crash and by being dragged aftei’wards. It was almost a total loss.
Both Hawkins and Hook testified that as they approached the crossing they could see the undimmed lights of a car facing them from the other side of the tracks, and that the undimmed lights blinded them somewhat. Also they saw a red, green and amber traffic light- in operation in the middle of the street ahead of them, on the far side of the tracks. They say that they thought they had an unobstructed view down the highway, and that there were no active signals at the crossing to indicate that it was blocked by a train or anything else.
This apparent inconsistency in the plaintiffs’ testimony, making it seem that they looked through a standing freight train as though it were a glass window, is explained by their testimony, and by the supporting tes timony of several other witnesses. For one tiling, the raised track left an open space of two feet and nine inches beneath the freight car bottoms and above the rails, directly in an automobile driver’s line of vision as he would look ahead on the highway. For another thing, the part of the train immediately in front of plaintiffs as they approached the crossing was an empty boxcar with the doors on both sides wide open. In the light of this evidence, it is entirely possible that a jury might conclude that plaintiffs were telling the truth when they said that they were carefully watching the highway ahead and saw through or under the standing train without ever seeing the train itself until they were practically beneath it.
To justify a verdict for plaintiffs, the jury would have to find (1) that defendant was negligent in the maintenance or operation of its train at the crossing and (2) that the alleged contributory negligence of the plaintiffs was of less degree than the negligence of the defendant. This is one of the situations in which our comparative negligence law, Ark. Stats., § 73-1004, is applicable, so that the contributory negligence of the plaintiffs will not bar their recovery unless it was equal in degree to or greater than the negligence of the defendant. Lloyd, Admx., v. St. Louis S. W. Ry. Co., 207 Ark. 154, 179 S. W. 2d 651.
This Court has several times held that injured plaintiffs could not recover against railroad companies when automobiles were driven into the side of trains standing-still on a highway crossing. Lowden, Trustee, v. Quimby, 192 Ark. 307, 90 S. W. 2d 984; Gillenwater v. Baldwin, Trustee, 192 Ark. 447, 93 S. W. 2d 658; K. C. S. Ry. Co. v. Briggs, 193 Ark. 311, 99 S. W. 2d 579; Fleming, Admrx., v. Mo. & Ark. Ry. Co., 198 Ark. 290, 128 S. W. 2d 986; Lloyd, Admrx., v. St. Louis S. W. Ry. Co., 207 Ark. 154, 179 S. W. 2d 651. Other cases have reached the same result when the automobile was driven into the side of a moving train. Chicago, R. I. & P. Ry. Co. v. Sullivan, 193 Ark. 491, 101 S. W. 2d 175; Ghipman v. Mo. Pac. R. Co., 195 Ark. 721, 114 S. W. 2d 14. From these cases it is conceivable that one might leap to the conclusion that this Court has laid down a rule of law that a plaintiff can never recover when his automobile is driven onto a highway-railroad crossing into the side of a train. A reading of the cases cited makes it very clear that we have not laid down any such broad and all-embracing rule. We have not chosen to disregard the governing abstract principles of negligence and contributory negligence to the extent of saying that there never will be a crossing collision of that sort in which the railroad company or its employees are guilty of negligence, nor have we said that injured plaintiffs figuring in such collisions will always and invariably, in every case that arises, be guilty of negligence equal to or greater than that of the defendant railroad. On the contrary, in Fleming, Admrx., v. Mo. & Ark. Ry. Co., 198 Ark. 290, 294, 128 S. W. 2d 986, 988, one of the cases cited supra, we said:
“It is the settled rule that whether failure of a railroad company to station a flagman at a crossing constitutes an omission of such care as an ordinarily prudent person would use under the same or similar circumstances, is a question of fact where there are obstructions which materially hinder the view of approaching trains, provided the crossing is used frequently by the public, and numerous trains are run. Inasmuch as permanent surroundings may create a hazardous condition, the rule of care goes further and requires precautions where special dangers' arise at a particular time. It is said that the obligation exists, at an abnormally dangerous crossing, to provide watchmen, gongs, lights, or similar warning devices not only for the purpose of giving notice of approaching trains, but such care is to be equally observed where the circumstances make their use by the railroad reasonably necessary to give warning of cars already on a crossing, whether standing or passing, as where a crossing is more than ordinarily dangerous because of obstructions to the view interfering with the visibility of the responsible train operatives, or those approaching the track. ’ ’
The quoted language was repeated approvingly in Lloyd, Admrx., v. St. Louis S. W. Ry. Co., 207 Ark. 154, 158, 179 S. W. 2d 651, 652. It represents well established authority in other states as well as in Arkansas. The true rule is that such cases merely present questions as to whether there is substantial evidence of negligence in the defendant railroad and as to the comparative degree of the injured plaintiff’s contributory negligence. See Hendrickson v. Union Pac. R. Co., 17 Wash. 2d 548, 136 Pac. 2d 438, 161 A. L. R. 96. 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. St. Louis S. W. Ry. Co. v. Britton, 107 Ark. 158, 154 S. W. 215; Mo. Pac. R. Co. v. McKamey, 205 Ark. 907, 171 S. W. 2d 932; Ozan Lbr. Co. v. Tidwell, 210 Ark. 942, 198 S. W. 2d 182.
In the instant case we believe there was evidence from which the jurors might reasonably have found that the defendant through its employees failed to exercise the care which an ordinary prudent man would have exercised under the same or similar circumstances. The time of night, the lights visible across the track,-the open space in the line of an autoist’s vision above the raised tracks and beneath the bottoms of the stopped freight cars, the wide open doors of the boxcar through which lights across the track shone while the boxcar stood motionless and silent, the absence of active crossing signals of any kind, the absence of guard or watchman, the fact that this was on a principal street in the business section of a good-sized city, the fact that the train was then moved a distance down the track with neither sign nor signal given— all this was included in the evidence and if believed by the jury would indicate that defendant created, unintention ally but perhaps carelessly, something like a trap for unwary night drivers. It may or may not be that defendant had time to post watchmen or set signals after stopping the train, but that is not decisive; it is possible that an ordinary prudent man in the position of defendant’s employees would not have stopped a train with open boxcar doors on this raised crossing at all in the absence of opportunity to give adequate warning to the traveling-public. We hold that there was evidence here from which the jury might have found negligence in the defendant.
Further, the jury might sensibly have found under the evidence that, though the plaintiffs were negligent, their negligence was of less degree than that of the defendant. Ark. Stats., § 73-1004. The testimony was that both plaintiffs were watching the road ahead, that the brakes and lights on their car were in good condition and properly employed, that their failure to see the standing train was due to no fault in the driving or in the lookout that both of them constantly maintained, and that they were to some extent blinded by the undimmed lights of a car facing them. They were strangers in the town and unfamiliar with the particular crossing. We cannot say that their evidence was under the circumstances so improbable, so contrary to the very nature of things, that a jury could not reasonably have accepted it, or part of it, and then have concluded that plaintiffs were less negligent than defendant was.
In reaching this decision we overrule no earlier cases. Each of the cases already cited, relied upon by defendant, is readily distinguishable. In Chicago, R. I. & P. Ry. Co. v. Sullivan, 193 Ark. 491, 101 S. W. 2d 175, Chipman v. Mo. Pac. R. Co., 195 Ark. 721, 114 S. W. 2d 14, and other cases like them, the defendant’s train was moving when it was struck, and the very fact of motion on the'tracks ahead served as a warning signal to approaching drivers. In Lowden, Trustee, v. Quimby, 192 Ark. 307, 90 S. W. 2d 984, there was no evidence of surrounding circumstances such as in the principal case pointed to negligence in the defendant, and the plaintiff, keeping no lookout though familiar with the crossing, was guilty of a larger degree of comparative negligence than is indicated, by tlie plaintiffs’ evidence here. Gillenwater v. Baldwin, Trustee, 192 Ark. 447, 93 S. W. 2d 658, involved a plaintiff who drove into a flatcar at a crossing with which he was familiar at 25 miles an hour without slowing down, stopping, looking or listening, taking it for granted that the street was clear. In K. C. S. Ry. Co. v. Briggs, 193 Ark. 311, 99 S. W. 2d 579, there was no evidence of negligence in the defendant other than that its train was stopped on a crossing, and the plaintiff who lived in the neighborhood and had observed the train nearby a few minutes previously ran squarely into it at about 6:30 p. m. without any extenuating circumstances.
Fleming, Admrx., v. Mo. & Ark. Ry. Co., 198 Ark. 290, 128 S. W. 2d 986, is the case already quoted from, stating in reference to proof of negligence in a defendant railroad that “inasmuch as permanent surroundings may create a hazardous condition, the rule of care goes further and' requires precautions where special dangers arise at a particular time.” Besides, the evidence showed that the plaintiff in that case was traveling “at a high rate of speed” when he hit defendant’s train, and there were no such extenuating circumstances as were testified to in the present case. It was easy there to conclude that the plaintiff’s negligence was at least as great as, and probably much greater than, the defendant’s.
Lloyd, Admrx., v. St. Louis S. W. Ry. Co., 207 Ark. 154, 179 S. W. 2d 651, is the only remaining case that deserves special notice. In the Lloyd case, as in the instant case, there were open boxcar doors through which lights shone immediately ahead of the driver when he rammed his truck into the defendant’s train on a crossing at 2:00 a. m. But there was no elevation of the tracks enabling the driver to see straight ahead beneath the cars, there were no blinding rays of light shining into his eyes from across the tracks, and the distance which the truck skidded after the brakes were applied — 130 feet — showed that it was being operated at an excessive and dangerous rate of speed. The driver was thoroughly familiar with the road and the crossing. In this case likewise the conclusion was easy that the truck driver’s negligence was clearly as great as or greater than the defendant’s.
The evidence in the instant case enables us to arrive at no such clear conclusion concerning the negligence of plaintiffs Hawkins and Hook as compared with that of the defendant railroad. We hold that their case should have been left to the jury for determination.
The judgment of the Circuit Court is reversed and the cause is remanded for new trial.
The cases are collected in a series of annotations in 15 A. L. R. 901, 56 A. L. R. 1114, 99 A. L. R. 1454, and 161 A. L. R. 111, the latter being the most complete collection of cases.
Other cases such as Thomasson v. Chicago, R. I. & P. Ry. Co., 203 Ark. 159, 157 S. W. 2d 7, add nothing to what has already been said, and need not be separately discussed. | [
-80,
106,
-27,
-65,
26,
106,
42,
-118,
-31,
-125,
-28,
-45,
-19,
-63,
1,
33,
-1,
41,
-16,
43,
-11,
-109,
21,
-93,
-109,
23,
107,
-59,
-111,
75,
36,
-42,
76,
48,
-54,
69,
38,
72,
-59,
28,
-114,
4,
-7,
-24,
25,
-110,
56,
62,
4,
23,
37,
-98,
-37,
42,
24,
-17,
109,
44,
107,
-71,
-47,
113,
-56,
7,
79,
4,
-93,
6,
-102,
5,
18,
57,
-44,
53,
1,
-4,
115,
-90,
-126,
-12,
105,
-103,
12,
-94,
103,
33,
21,
-123,
-84,
-120,
47,
62,
11,
-89,
56,
9,
1,
15,
-74,
-99,
126,
84,
6,
-22,
-3,
77,
29,
32,
7,
-49,
-108,
-127,
-81,
39,
30,
27,
-21,
47,
20,
100,
-50,
-14,
92,
7,
122,
-101,
15,
-106
] |
Butler, J.
The appellee is a manufacturer of candied mints and other confections. Appellee also manufactures and leases an automatic vending machine to dealers throughout the country. The mints manufactured by the appellee are designated as “Home'Runs,” which identifies the mints with the machine called “The Baseball Mint Vender.” The machine has across its front a picture of a baseball field with bases and players thereon. The amusement feature consists of three metal discs or reels upon the outer surface of which appear bright colored pictures of baseball players, baseballs, etc., in various combinations, so arranged that when the reels are spun they cause a flare of rapidly moving contrasting colors which attract and interest the attention of the passing public to the machine. The mechanism of the machine is so arranged that a symbolic game of baseball may be played thereon by the operator. The opera tor deposits a nickel in the machine. He receives in return therefor a standard package of mints, together with a varying number of slugs — from two to twenty. These slugs may then be used by the operator to start the machine in motion for the purpose of playing the game of baseball. The slugs received have no value except for playing the game of baseball on the machine; they cannot be used to play the machine again for candied mints. When a patron makes a “base hit,” the machine issues a metal or playing disc so that the game may be continued until he completes the inning or the game.
Appellee had arranged with several dealers to lease the machines and was preparing to install them in Pulaski County when the appellant, who is a peace officer, advised that he would seize and confiscate all of the machines upon their being installed, and would arrest all persons who set them up in their places of business. Appellee thereupon instituted this action wherein it sought to enjoin the appellant from interfering with its business. The complaint set forth in detail the manner of operating the machine.
In order to constitute a gaming device under the statute, it must be one that is adapted or designed for the purpose of playing any game of chance or at which cmy money or property may he won or lost, and any one who shall bet any money or other valuable thing, or “any representative of any thing that is esteemed of value,” is guilty under § 2634 of Crawford & Moses’ Digest of betting on a gambling device. By § 2640 of the same chapter of the Digest gambling is defined as the betting of any money or any valuable thing on any game of hazard or skill. It is clear from these sections and the entire chapter on gaming that the word “property” as used in § 2630 and the words “valuable thing” mentioned in other sections are used synonymously, and that any valuable thing or “any representative of any thing that is esteemed of value” is “property” within the meaning of § 2630, supra. The machine in question is one which always gives in exchange for a nickel a package of mints, and in addition to the mints a number of “slugs” in varying amounts from two to twenty with which a game may be played, there being an element of chance in the number of slugs obtained for a nickel. Is the right to play a game obtained in the above manner “property” or a “thing of value” within the meaning of our statute prohibiting the setting up of gambling devices and gambling? We think it is. It is a matter -of common knowledge that the maintenance of places having no value in themselves but which are used for amusement only are among the most remunerative kinds of property, such as miniature golf courses and other like means of amusement, and any thing that contributes to the amusement of the public is a thing Off value. The machine under consideration is attractive to children, and the fact that they may sometimes secure the right to play an attractive game — the opportunity varying with the number of slugs first received and upon “base hits” made — induces them to spend their nickels, not for the mints but for the possibility of the game, and is gambling within the meaning of our statute. We therefore conclude that the trial court erred and that its decree should be reversed with directions to dismiss the plaintiff’s complaint. It is so ordered. | [
-80,
-4,
-100,
-4,
58,
112,
32,
-102,
66,
-95,
55,
19,
-19,
118,
-107,
49,
-73,
105,
20,
104,
-48,
-89,
39,
2,
-14,
-69,
-39,
-43,
-73,
107,
-27,
-44,
76,
48,
-54,
-43,
118,
98,
-31,
28,
10,
37,
43,
104,
49,
66,
52,
46,
114,
74,
33,
-105,
-45,
46,
-98,
-53,
109,
46,
121,
63,
-15,
-24,
-45,
29,
125,
23,
-96,
1,
-103,
71,
-56,
14,
24,
49,
16,
-24,
123,
-74,
-126,
84,
107,
57,
-120,
98,
34,
38,
9,
-83,
-104,
24,
47,
87,
-97,
-121,
-73,
89,
74,
-85,
-68,
-97,
50,
2,
-116,
-2,
-5,
-43,
29,
124,
11,
-58,
-76,
-125,
-81,
118,
-114,
38,
-17,
-89,
49,
81,
-50,
46,
95,
68,
54,
31,
-50,
-63
] |
Lyle Brown, Justice.
This appeal of Harold E. Fort-ner is from the revocation of a suspended sentence. The two points for reversal are (1) that the court erred in permitting an officer to testify as to statements made to the officer by appellant, and (2) that the court abused its discretion.
The charge for which a suspended sentence was imposed was for forgery and uttering. Several months thereafter appellant was charged with burglarizing Phillips Used Cars and taking, among other things, a pistol. On the day set for trial the latter charge was dismissed and a petition to revoke the suspended sentence was filed. An immediate hearing was held on the petition and revoca-don was ordered.
We summarize the evidence in the light most favorable to the State. On March 16, 1973, appellant went home’ around 10:00 p.m. He said he had been to Tex-arkana with two companions and drank some beer; that on his way home he had car trouble with a car he had bought in Texarkana for $50.00; that- he hitch-hiked to Hope and the driver sold appellant a pistol for $10.00; and that he bought a hamburger and went home to eat it. The Fortner family occupied a room at Mrs. Fortner’s grandmother’s house. The grandmother testified that she heard a commotion in the Fortners’ room and that shortly Mrs. Fortner came out saying appellant had a gun and threatened her. Mrs. Fortner testified that appellant did not pull a gun “but he said he had one and patted his pocket”. She said appellant threatened to shoot her “if I kept smarting off”. Appellant called her, so she said, a whore, and cursed her. She said she could smell alcohol on appellant and she thought his antagonism on the occasion was caused by appellant’s drinking.
A pistol was found in a trash barrel used by the grandmother, and Harry Phillips identified it as having been stolen from his office on the same night. A car which was taken from the Phillips lot was found abandoned about two blocks from where appellant resided.
The evidence we have summarized came from an officer who interviewed appellant at the jail, the grandmother, and appellant’s wife. Appellant elected not to testify.
In a conclusionary statement made from the bench, the court remarked that the suspended sentence had been granted conditioned on appellant’s good behaviour. He commented on the facts that appellant had consumed beer, had threatened his wife, and was carrying a gun. The court concluded that the recited matters could not be overlooked and based his revocation upon those actions of appellant. We conclude that the trial court did not abuse its discretion. We have a host of precedents for the proposition that the question of revocation addresses itself to the discretion of the trial court. To cite only a few, Burt v. State, 241 Ark. 798, 410 S.W. 2d 387 (1967); Kinard v. City of Conway, 241 Ark. 255, 407 S.W. 2d 382 (1966); Smith v. State, 241 Ark. 958, 411 S.W. 2d 510 (1967). There must be a gross abuse of discretion before we will overturn a trial court’s revocation. Barnes v. State, 254 Ark. 404, 494 S.W. 2d 711 (1973).
Appellant argues that it was error to permit Officer Ward to testify about a conversation the officer had with appellant while he was in jail awaiting trial. The simple answer is that appellant was first advised of his constitutional rights. It is true Officer Ward was investigating the Harry Phillips burglary and did not advise appellant that his statements could be used against him in a revocation hearing. But that advice was not necessary so long as Officer Ward advised appellant — which Ward said he did — that his statements could be used against him in a court of law.
Appellant points out that the burglary charge was dismissed and that the evidence does not show he had stolen property in his possession. The proof required for a conviction and for a revocation is (different. As stated in Smith, supra, the degree of evidence required as a basis of revocation does not have to show proof of guilt beyond a reasonable doubt.
Finally, appellant says the consumption of beer occurred in his home and should therefor^ ■ not be held against him. That is not the proof. He related to Officer Ward that he drank the beer in Texarkana.
Affirmed. | [
48,
-22,
49,
-98,
43,
97,
24,
-70,
115,
-1,
119,
-45,
-83,
123,
4,
123,
123,
125,
117,
121,
-33,
-73,
22,
-111,
-14,
-13,
-8,
-43,
-77,
79,
110,
-9,
76,
112,
-54,
93,
38,
-60,
-25,
-36,
-114,
-123,
-39,
-27,
90,
-124,
48,
44,
84,
15,
33,
-114,
-25,
42,
28,
-50,
73,
44,
-53,
63,
72,
123,
-103,
13,
-17,
23,
-93,
6,
-100,
7,
-16,
59,
29,
49,
0,
-8,
115,
-112,
-126,
84,
107,
-55,
-116,
32,
98,
1,
-11,
-19,
-88,
-119,
79,
123,
-107,
-89,
-104,
72,
67,
5,
-106,
-99,
107,
20,
11,
-4,
116,
-43,
65,
96,
7,
-54,
-108,
-79,
14,
-72,
-122,
82,
-21,
33,
48,
113,
-51,
-26,
92,
6,
113,
-117,
-121,
-76
] |
Leflar, J.
The issue in this case is whether the Capital Transportation Company’s “trackless trolleys,” large passenger busses operated by 150-liorse- power electric motors receiving' tlieir energy from overhead wires, are within the taxing provisions of Act 115 of 1939 (Ark. Stats., § 75-206). That Act levies a tax upon all “motor busses (which) are operated on certain designated streets, according to regular schedules, in lieu of street cars, and the operators of such motor busses pay a valuable consideration for that privilege not charged against other motor vehicles.”
The Company sought an injunction restraining the Commissioner of Revenues from collecting the statutory tax upon its electrically powered busses, and the Commissioner cross-complained asking for a judgment in the amount of the taxes allegedly due. The Chancellor granted the injunction as prayed by the Company, and the Commissioner appeals. The Company does not deny that the General Assembly may properly levy a tax upon these electrically powered busses; the problem is whether it has done so. This presents to the Court the single question of what is the correct interpretation of Act 115.
Act 115 reads as follows:
‘ ‘ An Act to Levy a Tax on Motor Busses Operating Over Definite Routes and in Lieu of Street Cars.
“Whereas, it has become necessary for persons and companies operating street cars in some of the cities and towns to replace the street cars with motor busses in order to provide an adequate and necessary service, and in the future it will be required of such persons and companies to convert other street car lines into motor bus lines, in order to continue the operation of such transportation systems under their franchise; and
“Whereas, such persons and companies should pay a reasonable fee for the operation of such busses in lieu of street cars which did not pay a license fee to the state, and
“Whereas, other motor vehicles pay a license fee to the state. Therefore,
“Be it enacted by the General Assembly of the State of Ai’kansas:
“Section 1. Hereafter, where motor busses are operated on certain designated streets, according to regular schedules, in lieu of street cars, and the operators of such motor busses pay a valuable consideration for that privilege not charged against other motor vehicles, the owners and/or operators of such motor busses shall pay to the state an annual motor vehicle and license fee of 45 cents per horsepower of the rated horsepower of the motor propelling such motor bus, and in addition thereto shall pay $2.50 for each passenger seating capacity of such motor bus or busses.” (Repealing and emergency clauses omitted.)' The Act was .approved on Feb. 22, i 9S9.
It is established that the Capital Transportation Company has for many years operated a public transportation system on the streets of Little Rock and North Little Rock. For a time the Company operated only electric street cars which ran on fixed metal rails, but during the 1930’s it began using gasoline motor busses on some of its routes. In each instance city ordinances were enacted authorizing the change-over. Since 1939 the tax fixed by Act 115 has been paid on these busses. In 1947, again under authorization of city ordinance, the Company began using and now has in operation 35 of the “trackless trolleys” which it claims are not taxable under Act 115. The old street cars have been eliminated entirely and the metal tracks paved over. The two types of busses, those powered by gasoline motors and those powered by electric motors, now operate in lieu of the old street cars on all the Company’s lines and routes.
Each of the 35 new busses has an individual 150-liorsepower electric motor which receives its energy from overhead trolley wires. The busses have pneumatic rubber tires which roll directly on the pavement surface of the street, and they may be driven a maximum of twelve feet on either side of the overhead wires, thus giving them maneuverability over a 24-foot width on the side of the street where they are driven. Separate sets of overhead wires are maintained on each side of a street.
The purpose of Act 115 appears clearly from its language. It was to levy a tax on busses which ran directly on the pavements and which were substituted for the untaxed street cars that operated on metal rails and not on the pavement. The tax was set at a lower figure than that levied on other busses of the same size and general characteristics, because other busses made a more general use of the State’s highways and because municipal transportation companies pay other taxes that appeared to justify an equalizingly lower levy on busses whose use was limited to fixed schedules and routes within a given city. The tax was designed to put such specialized busses upon a tax-paying parity with other pneumatic tired vehicles which similarly ran upon the pavements and not upon metal rails. Its purpose is evident both from the title and the preamble of Act 115, and also from the body of the act following the enacting clause.
Accepting this purpose in Act 115, the Act still would not achieve its purpose as to busses operated by electric motors if they were by its terms omitted from its coverage. The Company contends that its “trackless trolleys” are not “motor busses” at all, that the statutory term “motor bus” applies only to self-propelled vehicles, and does not include busses whose motors are powered by energy furnished through outside electric wires.
What did the General Assembly of 1939 mean when it used the words “motor busses” in Act 115? The answer cannot be arrived at merely by looking in the dictionary, but must be discovered by examination of the statute as a whole. Holt v. Howard,, 206 Ark. 337, 175 S. W. 2d 384; Elisabeth Arden Sales Corp. v. Gus Blass Co., 150 F. 2d 988, 161 A. L. R. 370 (C. C. A., 8), cert. denied, 326 U. S. 773, 66 S. Ct. 231, 90 L. Ed. 467.
For one tiling, tliis type of bus was already well known in the municipal transportation industry in 1939. See City of Dayton v. De Brosse, 62 Ohio App. 232, 23 N. E. 2d 647, decided Feb. 2, 1939, and Memphis Street Ry. v. Crenshaw, 1.65 Tenn. 536, 55 S. W. 2d 758, decided in 1933, involving the operation of “trackless trolleys” in Dayton, Ohio, and Memphis, Tenn., respectively. If it was the purpose of the legislature to tax busses which ran on the pavement rather than on rails, deliberate omission of a known type of such busses from the new enactment was highly improbable.
For another thing, this type of bus satisfies all the incidental descriptive provisions contained in the statute. These 35 busses “are operated o-n certain designated streets.” They are operated “according to regular schedules.” They are operated “in lieu of street cars.” Furthermore, the operators “pay a valuable consideration for that privilege not charged against other motor vehicles.” All these facts are assured by the terms of the ordinance under which the Company operates the busses, and are freely admitted by the Company.
Everything about the statute makes it appear, that when the legislature used the term “motor busses” it meant “busses moved by individual motors.” The legislature was making a distinction between street cars operating on rails and motor busses operated “in lieu of street cars.” It was not distinguishing between busses moved by internal combustion motors and busses moved by electric motors. It was not distinguishing between busses whose motors are powered by gasoline poured in through a tube and others whose motors are powered by electric energy run in on a wire. There is nothing in the statute limiting the tax to busses which carry a fuel tank.
The word “motor” is discussed in 19 Encyclopedia Americana, p. 514: “A machine for utilizing some power, as gas expansion or electric current, to do useful work . . . The word motor came into common use with the commercial development of electricity. The makers of the first electric machine that was marketed for delivering power chose to call it an electric motor, and since then a reversed dynamo has always been a motor. Then came Daimler’s perfecting of the ‘petrol’ engine, for use on bicycles, which is now technically called an internal combustion engine, but popularly called a motor.” Webster’s New International Dictionary (2nd ed.) under the noun “motor” gives successive illustrations: “(4). A rotating machine which transforms electrical energy into mechanical energy,” and “(5). Any internal combustion engine.”
“Trackless trolleys” are busses which are moved, controlled and directed from within their own bodies by means of individual electric motors. We believe that, in the light of the whole phrasing and purposes of Act 115, they are “motor busses” within the sense in which that term was used in this particular act.
Appellee Company argues that if the term “motor bus” is broad enough to include “trackless trolleys” it is broad enough to include street cars also. The quick answer to that is that a street car is not a bus. A street car is a vehicle that operates on fixed metal rails, whereas a bus has pneumatic tires and operates on the regular street surface. That difference represents the reason why the General Assembly of 1939 saw fit to levy a tax on busses operated “in lieu of street cars.”
The Company also argues that because “trackless trolleys” can not be driven over the State highway systems generally, but only over fixed city routes, they should not be taxed under Act 115. But the gasoline motor busses taxed by Act 115 are similarly limited in their operation to fixed city routes; the moment they enter upon broader operations over the State’s highways generally they lose the special status given them by Act 115 and become subject to the higher fees collected on busses not “operated on certain designated streets, according to regular schedules, in lieu of street cars. ’ ’ The applicability of Act 115 is limited to busses which in fact do not operate over the State highway system generally, and it makes no difference whether they stay within their fixed city routes merely because their drivers keep them there in obedience to orders or because the bus is so constructed that a driver could not disobey orders by driving across the state with it even if he wanted to.
Finally, the Company relies upon two decisions, from Tennessee and Georgia, which held that “ trackless trolleys” were not within the coverage of particular taxing statutes of those states. We agree that both these decisions are sound, but neither of them involves a statute like our own.
In Memphis Street Ry. v. Crenshaw, 165 Tenn. 536, 55 S. W. 2d 758, the question was whether ‘trackless trolleys” were within the general registration and licensing law that applied to all automobiles and motor vehicles in the state. The Court pointed out that “the primary purpose of the law is to secure registration, largely to insure identification, recorded opportunity for the tracing of a rapidly moving class of vehicles of an itinerant, peripatetic, even migratory nature. . . . If this is the primary object of this registration law, then it is difficult to conceive how vehicles thus absolutely confined to fixed routes . . . could be contemplated as within the objective of the lawmakers.” Similarly, it can not be contended that the comparable general automobile registration law of Arkansas is applicable to “trackless trolleys,” nor is that contention now being made.
Thompson, Comr. of Revenue v. Georgia Power Co., 73 Ga. App. 587, 37 S. E. 2d 622, is the other case. It presented the question whether a “trackless trolley” was a “motor bus” within the meaning of the general automobile registration law of Georgia. The Court held that it was not. As in the Tennessee case, the Court looked to the function and purpose of automobile registration, found that its function and purpose were applicable only to the types of vehicles commonly known as automobiles, and concluded that a “trackless trolley” was not an automobile in the sense employed by the general registration act.
As to these cases, we can only hold that Act 115 of 1939 is a different kind of statute. It is not a part of the general automobile registration law of Arkansas. Act 115 is designed merely to fix an amount of state tax payable by motor busses “operated on certain designated streets, according to regular schedules, in lieu of street cars.”
There is nothing in the nature of “trackless trolleys” that makes inappropriate the application of the statute to them. Everything in their physical characteristics and mode of operation makes it as fair and as appropriate for the statute to be applied to them as to other motor busses falling within the statutory description. It would be unfair to the owners of gasoline motor busses and contrary to the spirit and purpose of the statute if ‘ ‘ trackless trolleys ’ ’ were not taxed under it. The statute purports to cover these busses, and we hold that there is no justification for an interpretation that would take them out of the coverage which appears on the face of the statute.
The decree of the Chancery Court is reversed and remanded with directions that a decree be entered in favor of the cross-complainant for the amount of the tax found to be due from the appellee Company under Act 115.
MoFaddin, J., dissents; Gbieein Smith, C. J., not participating.
Under Pope’s Dig., § 6615 (a) and (d), in effect when Act 115 was enacted, ordinary gasoline powered motor busses were charged an annual tax of 45 cents per horsepower on the motor plus $2.50 for each passenger-carrying capacity plus $1.50 for each 100 pounds of gross weight of the vehicle. Act 115 imposed the first two items of tax only, and not the last one named, upon the busses to which it applied.
It is permissible to examine both the title and the preamble of an act to discover its meaning when ambiguity in its text is urged. See cases cited in Anderson, Drafting a Legislative Act in Arkansas, 2 Ark. L. Rev. 382, at 386 and 388. | [
120,
-40,
-44,
126,
26,
64,
26,
-102,
113,
-109,
-92,
83,
-83,
92,
16,
113,
-9,
125,
112,
107,
-11,
-73,
7,
35,
-108,
-41,
-39,
-51,
-67,
75,
100,
-26,
78,
48,
-54,
-43,
6,
75,
69,
94,
-18,
44,
-88,
64,
-23,
1,
52,
105,
114,
7,
17,
-114,
-73,
40,
24,
-61,
-20,
46,
-39,
-95,
-47,
-15,
-86,
-107,
110,
23,
32,
4,
-100,
1,
-40,
43,
-100,
-71,
56,
-20,
119,
-90,
66,
-4,
33,
-39,
-120,
38,
98,
65,
1,
-83,
-68,
-88,
46,
-38,
47,
-92,
-106,
56,
35,
-121,
-105,
31,
84,
18,
15,
-2,
-2,
-107,
95,
108,
7,
-114,
-76,
-77,
-83,
-11,
-122,
20,
-17,
-61,
48,
112,
-54,
-42,
92,
71,
50,
-101,
87,
-108
] |
Smith., J.
Appellant wafi convicted under an indictment charging him with the crime of grand larceny, and he seeks by this appeal only to question the sufficiency of the indictment under which he wa,s tried. The indictment alleges that he stole “two animals of the cattle kind, the property of 'Cratus Sterlin. ’ ’ The property alleged to have been stolen was not otherwise described, and it is earnestly insisted that this description is insufficient, for the reason that, if defendant were again tried for the larceny of these animals under a more particular and sufficiently definite description he could not plead the conviction under this indictment as a bar to that prosecution, for the reason that the indictment describes nothing definitely. It is also insisted that the description of the property alleged to have been stolen is too vague and indefinite for defendant to properly prepare his defense.
We are cited to the definition of the word “cattle” appearing in Webster's New International Dictionary, which reads: “'Collectively, live animals held for property or raised for some use, now usually confined to quadrupeds of the (bovine family, but sometimes including all domestic quadrupeds, as sheep, goats, horses, mules, asses and swine. Also, formerly, rarely used as a singular for beast, ox.”
We are cited also to other definitions of the word “cattle,” which include all domestic quadrupeds, as sheep, goats, horses, mules, asses, and swine, but such is not the meaning of the word “cattle” as employed in our statute on the subject of the larceny of cattle. It reads as follows: “Every'person who shall mark, steal or kill, or wound, with intent to steal, any kind of cattle, pigs, hogs, sheep, or goats, shall be guilty of a felony, and, upon conviction thereof, be imprisoned at hard labor in the penitentiary for any time not less than one year nor more than five years.” Section 2490, >C. & M. Digest.
We have'a statute on the subject of the larceny of horses, etc., which reads as follows: “Whoever shall be convicted of stealing any horse, mare, gelding, filly, foal, mule, ass or jennet shall be imprisoned in the State Penitentiary not less than one nor more than fifteen years.” Section 2491, €. & Lf. Digest.
The word “cattle” could not, therefore, be said to include horses,, mules, etc., within the meaning of our statute, for the reason that a different and a higher punishment is prescribed for the larceny of the latter than is prescribed for the larceny of the former. The word “cattle,” as it appears in § 2490, does not include pigs, hogs, sheep or goats, for those animals are separately named as the subjects; of larceny, made felonies, without regard to value, after the word “cattle” has been employed. We are therefore of the opinion that the word “cattle,” as appearing in § 2490, O. & M. Digest, means animals of the bovine species.
In the .case of State v. Esser, 42 Nev. 218, 174 Pac. 1023, the defendant was charged with the crime of grand larceny, alleged to have been committed by stealing nine head of cattle, the property of another person. In an opinion which held the indictment sufficient, the Supreme Court of Nevada construed the word “cattle,” appearing in the grand larceny statute of that State, to embrace cows, bulls, and steers of the domesticated bovine genus. After a review of a number of cases, the court held that the word “cattle” as generally used in the Western States,'means neat cattle, straight-backed, domesticated animals of the bovine genus, regardless of sex, and includes cows, bulls and steers, but not horses, mares, geldings, colts, mules, jacks or jennies, goats, hogs, sheep, shoats, or pigs.
In the case of State v. DeWitt, 152 Mo. 814, 53 S. W. 429, the Supreme Court of Missouri held an indictment sufficient charging the taking of “two head of neat cattle, ’ ’ as being in the language of the statute.
In the case of Bell v. State, 175 Ark. 1169, 1 S. W. (2d series) 1006, we held an indictment sufficient which charged the larceny of “one certain ‘yearling,’ the property of Joe Allen,” and in so holding we said that “in common parlance, or in the vernacular of this State, we know that the word ‘yearling’ refers to an animal of the cow kind one year old, or in the second year of its age.” See also, State v. Haller, 119 Ark. 503, 177 S. W. 1138 ; State v. Gooch, 60 Ark. 218, 29 S. W. 640.
The indictment in the instant case is in the language of the statute, and we hold is sufficient to charge the larceny ..of two animals of the bovine genus, and therefore sufficient, and, as no other question is raised, the judgment is affirmed. | [
49,
-2,
-35,
125,
10,
96,
42,
-104,
-45,
-85,
102,
19,
-51,
-58,
4,
113,
-29,
-3,
84,
113,
-42,
-73,
117,
65,
-78,
-5,
18,
-59,
49,
111,
-20,
-12,
1,
16,
-62,
85,
102,
-88,
-63,
92,
-86,
37,
-102,
-27,
104,
0,
44,
43,
22,
14,
113,
-97,
-85,
42,
54,
81,
33,
44,
75,
45,
-24,
121,
-74,
15,
61,
22,
-93,
38,
-66,
3,
-54,
46,
-100,
17,
1,
-24,
115,
-76,
-122,
116,
13,
-101,
12,
98,
98,
0,
93,
13,
0,
-56,
47,
127,
-97,
-121,
-112,
17,
3,
36,
-97,
-99,
114,
-46,
6,
124,
-27,
20,
-97,
96,
-125,
-49,
20,
-109,
-115,
44,
-100,
-7,
-21,
-73,
18,
113,
-51,
-30,
73,
33,
120,
-101,
-122,
-41
] |
DuNaway, J.
Appellant Batchelor was convicted of the crime of rape upon his eight-year-old daughter and the penalty was fixed by the jury as life imprisonment.
The evidence on the part of the State disclosed these facts: About May 30, 1947, appellant was living in a house with his former wife and their four children, including his eight-year-old daughter, the prosecuting witness. The family was working in the cotton fields. On the day in question appellant sent the child’s mother from the house to the mail box which was about one-half mile distant. During Mrs. Batchelor’s absence, appellant laid Ms daughter on the bed, removed her underclothes and had sexual intercourse with her. Appellant continued the act until he observed Mrs. Batchelor returning toward the house. The child was bleeding from her private parts and appellant wiped up the blood with some rags which he then put under the bed. When Mrs. Batche-lor reentered the house and asked what had happened . to their daughter, appellant told her the child had fallen over a lied post and injured herself.
About one month later, at which, time the child’s mother was no longer living with the family, appellant repeated the act of intercourse with his daughter.
In March, 1949, when a child welfare worker from the State Welfare Department was investigating the Batche-lor home, these facts first came to light. It was then that the little girl told of the attacks upon her by her father, she having been afraid to say anything before because of appellant’s threats to “beat her up.” Appellant was arrested March 17,1949, charged by information with the crime of rape, and tried November 21, 1949.
No abstract or brief has been filed by appellant, but we have carefully considered all assignments of error made in the motion for new trial.
Appellant complains of the testimony of the prosecuting witness on several scores. It is contended first that she was not a competent witness because of her youth. The rule in regard to the competency of a child’s testimony was stated in Hudson v. State, 207 Ark. 18, 179 S. W. 2d 165, where we said at page 22: . . if the child-witness, when offered, has capacity to understand the solemnity of an oath and to comprehend the obligation it imposes, and if in the exercise of a sound discretion the trial court determines that at the time the transaction under investigation occurred the proposed witness was able to receive accurate impressions and to retain them to such an extent that when testifying the capacity existed to transmit to fact-finders a reasonable statement of what was seen, felt, or heard, — then, on appeal, the Court’s action in holding the witness to be qualified will not be reversed.” There a child of seven years was allowed to testify. See, also, Ramick v. State, 212 Ark. 700, 208 S. W. 2d 3 (a child eight years old testified); Needham v. State, 215 Ark. 935, 224 S. W. 2d 785 (a child eight years of age testified as to rape committed upon her person).
It is also urged that error was committed by the trial court in having the child repeat a part of her testimony. While the little girl was testifying counsel for the defendant objected that the witness had not been sworn. It developed that this was true, and after having her duly sworn the trial court had the witness give her entire testimony under oath. There was no error in the court’s action in remedying the very defect in the proceedings which had been called to the court’s attention by appellant’s objection.
In connection with his daughter’s testimony appellant also argues that error was committed when the welfare worker whom she had first told of the crime was asked by the prosecuting attorney if the little girl had not told substantially the same story on several occasions. The court sustained an objection by defense counsel to this line of questioning. No request was made that the jury be admonished to disregard the witness’ answer after the court sustained counsel’s objection. No error was committed.
Another alleged error was the admission in evidence of a certain letter to his “wife,” which appellant had written while in jail. The letter was intercepted by the jailer, who testified that he was familiar with appellant’s handwriting and that appellant had written the letter. At the trial introduction of the letter was objected to on the ground that it was privileged. Although there is a division of authority on this question, this court has decided the issue contrary to appellant’s contention. An incriminatory letter written by an accused .to his wife, which has come into the hands of a third party was held admissible in Hammons v. State, 73 Ark. 495, 84 S. W. 718, 68 L. E. A. 234, 108 Am. St. Rep. 66, 3 Ann. Cas. 912, and Hendrix v. State, 200 Ark. 978, 141 S. W. 2d 852.
Appellant also complains of the testimony of one witness as to statements made by appellant at a habeas corpus hearing which preceded the trial. These statements were to the effect that the child had hurt herself when she fell on a bed post and that he had wiped blood from her with clean rags and put the rags under the bed. These were self-serving declarations; the testimony complained of was not prejudicial.
A number of assignments of error have to do with instructions refused by the trial court. It is sufficient to say that the instructions as given by the court fully covered all matters contained in the defendant’s requested instructions. There was no error in refusing to give repetitious instructions.
Finally, the contention is made that the prosecuting attorney in his closing argument improperly referred to newspaper accounts of the great number of sex crimes being committed in this country. The argument complained of does not appear in the bill of exceptions, nol-is it shown that any objection was made to the prosecuting attorney’s remarks. Since the language used by the prosecuting attorney is not set forth in the record we are unable to determine whether, the argument was proper. We cannot presume it was prejudicial to appellant. Mitchell v. State, 73 Ark. 291, 83 S. W. 1050.
The -evidence was sufficient to sustain the verdict; no error appearing in the trial of the cause, the judgment is affirmed.
GrieeiN Smith, 0. J., not participating. | [
-112,
-18,
-68,
-3,
58,
97,
42,
56,
-45,
-109,
-75,
-45,
-85,
-58,
0,
113,
127,
109,
-44,
120,
-111,
-73,
54,
96,
-14,
-77,
-7,
-43,
51,
79,
-84,
-9,
76,
114,
-54,
-47,
-30,
74,
-47,
80,
-122,
-117,
-88,
-22,
18,
66,
38,
61,
88,
15,
53,
-66,
-29,
42,
21,
-38,
-23,
108,
-117,
-67,
88,
33,
-70,
7,
15,
54,
-79,
6,
-70,
4,
120,
52,
92,
53,
0,
-24,
115,
-124,
-126,
-12,
111,
-101,
-92,
98,
98,
1,
-83,
-122,
-71,
-119,
46,
119,
-99,
-89,
-103,
96,
73,
77,
-73,
-43,
40,
20,
-83,
-6,
125,
-60,
29,
96,
42,
-49,
52,
-111,
-113,
-92,
86,
-69,
-13,
45,
32,
117,
-35,
-78,
92,
85,
113,
-101,
-114,
-13
] |
Dunaway, J.
The Commissioners of the Little Rock Municipal Water Works appeal from a judgment in favor of appellee James, rendered by the Pulaski Circuit Court. The cause was submitted to the court sitting as a jury.
James brought this action against appellants to recover a balance alleged to be due under a written contract entered into on April 24, 1946. James had contracted with appellants to do certain work in laying water mains from the filter plant of the Water Works down to and within the business district of Little Rock. Beginning at Second and Pulaski Streets and continuing east into and through parts of the downtown business district of Little Rock, the work necessitated cutting the pavement and digging trenches in forty-one blocks of the city streets.
Upon completion of the work the Commissioners withheld a part of the contract sum of $122,074.37 claimed by James to be due him. Several disputed items were involved in the amount initially withheld, but we are concerned with only one. The judgment now appealed from arises out of a difference between the parties over the manner in which appellee refilled the trenches and maintained this temporary refill.
In his complaint James alleged that he had “ fully complied with the contract and completed the work contemplated thereunder” and that the sum of $1,726.11 due him was being wrongfully withheld. This represented the cost of work done by the City of Little Rock in applying cut-back or hot asphalt to the surfaces of the trenches which appellee had caused to be filled with clay gravel.
Appellants’ defense to the suit was that James had not complied with the terms of his contract, in that he had not filled the trenches with macadam in accordance with required specifications; and that, as authorized by the contract, they liad procured the temporary resurfacing work by the City as the cheapest means of remedying James’ default in performance. The cost of this work they claimed to be entitled to deduct from the total contract price of the project.
The trial court made this finding of fact in rendering judgment for the plaintiff: “The Court finds that the trenches dug by the plaintiff were not paved with broken stone macadam as required by the contract but that they were paved with gravel, which the Court finds to be a substantial compliance with the terms of the contract, and therefore plaintiff is entitled to recover $1,726.11 which defendant incurred in applying cut-back to the trenches. ’ ’
In their motion for new trial, and in their argument here, appellants urge that the trial court erred (1) in finding that appellee had substantially complied with the contract and (2) in rendering judgment for appellee when the court found that the trenches “were not paved with broken stone macadam as required by the contract.”
The relevant provisions of the contract concerning the temporary refilling of trenches by the contractor are quoted: “Paragraph 28.4. The attention of bidders is called to the specifications covering the maintenance of trenches and temporary repaving of broken stone macadam to be replaced and maintained by the Contractor; however, the bidder shall have the option of maintaining trenches by the use of suitable wooden platforms, provided that such platforms are properly and adequately maintained so as to be in nowise an obstruction to traffic at all times. In the event that the timber platforms are not properly and adequately maintained this option will be withdrawn and the CONTRACTOR will be required to place the broken stone macadam and maintain same in all trenches as provided by the specifications.”
“Paragraph 59.3. Where it is important that the surface of the backfill be made safe for vehicular traffic as soon as possible, or where a permanent pavement is to be placed within a short time, the upper twelve (12") inches of backfill shall be of approved moist material, thoroughly compacted in four (4") inch layers by tamping and shall be brought to the required surface grade.”
“Paragraph 59.10. Temporary paving of all ditches in traveled streets shall be done by the CONTRACTOR as a part of this contract and without additional compensation therefor. Temporary paving shall consist of a broken stone macadam wearing surface or of suitable wooden platforms.”
The provision of the contract under which the Commissioners proceeded to have the resurfacing work done themselves and claim the right to deduct the cost is as follows: “Paragraph 32.1. If the CONTRACTOR shall neglect to prosecute the work properly or fail to perform any provisions of the contract, the OWNER, after three days’ written notice to the CONTRACTOR may, without prejudice to any other right or remedy he may have, make good such deficiencies and may deduct the cost thereof from any payments then or thereafter due the CONTRACTOR.”
The proof shows that along approximately three blocks the surface of the trenches was covered with loose crushed stone. This proved unsatisfactory, as the loose stone scattered over the street when cars drove over it, and the rest of the trenches were refilled with clay gravel which had been removed in digging the trenches. It was admitted that no ■ tamping had been done; compaction in the back-filling had been obtained by jetting water into the ditches and letting the clay gravel settle.
It was conceded that on no part of the refilling job was macadam used. In Webster’s New International Dictionary macadam is defined as “the broken stone used in macadamizing” and macadamizing as “to construct or finish (a road) according to the system invented by John Loudon McAdam, which consisted in compacting into a solid mass a layer of small broken stone on a convex well-drained earth roadbed; hence, to construct any road of broken stones, as on a bed of large stones . . .”. From the testimony of appellee himself, as well as that of engineers for appellants, it is clear that the term “macadam” is a technical one applied to broken stone, of various sizes, so laid that it gains a certain compaction.
Appellants insist that appellee’s use of clay gravel was not a substantial compliance with the contract,, but that even if it was, appellee cannot recover the full contract price where only substantial compliance is established.
This court has held that one may recover on a contract upon a substantial performance of it, but from the contract price there must be deducted either the additional cost of literal compliance or the cost of correcting the defects in the work, Mitchell v. Caplinger, 97 Ark. 278, 133 S. W. 1032; Thomas v. Jackson, 105 Ark. 353, 151 S. W. 521; Hollingsworth v. Leachville Special School District, 157 Ark. 430, 249 S. W. 24.
Counsel for appellee concede that this is a correct statement of the law, but urge that it has no application to the instant appeal. Appellee argues that there was testimony before the trial court that one Ryan, the on-the-job work inspector for the Water Works, daily saw' the method of temporary filling which was being used. Appellee testified in effect that Ryan authorized this admitted departure from the terms of the contract. Prom this, counsel argue that as the work progressed, there was a modification of the contract requirements, permitting the use of clay gravel instead of macadam.
The argument then is, that whether the contract was modified was a fact question for the determination of the court sitting as a jury. According to appellee’s theoiy of the case, our review on this appeal is limited to an examination of whether there is any substantial evidence to support the judgment of the court.
It is well settled that fact findings by the trial court in a case such as this are treated with-the same finality as are jury verdicts on appeal, and will be affirmed if supported by any substantial evidence. See Luster v. Robinson, 76 Ark. 255, 88 S. W. 896; Dunaway v. Ragsdale, 177 Ark. 718, 9 S. W. 2d 6; Schulze v. Price, 213 Ark. 732, 213 S. W. 2d 365. Where the court makes no special findings of fact or declarations of law, and none are requested, we look only to see whether there is any substantial evidence to support the judgment.
Appellee contends that since no special findings were requested, by either side our review is so limited in our consideration of the case at bar. This argument, however, overlooks the fact that the court on its own motion did make a special finding of fact. We have held that a special finding by the court cannot be treated as surplusage and disregarded, • even though a judgment might have been sustained but for the special finding. Henderson v. Gladish, 198 Ark. 217, 128 S. W. 2d 257.
In the instant case, without detailing all the testimony, it is enough to say that there was substantial evidence to sustain a finding either way on the issue of substantial performance. The trial court’s determination is therefore conclusive of this issue. But this still leaves for decision the question of law: did the special finding warrant the judgment entered thereof? As this court said in Worthington’s Admr. v. DeBardlekin, Ad., 33 Ark. 651 (at p. 654): “In the case now before us, there was a motion for a new trial, and though the court made no declarations of law, none being asked by either party, we certainly can look into the bill of exceptions to see if there was any evidence to sustain the findings of the court, sitting as a jury, and whether, as matter of law, the plaintiff below was entitled to judgment upon the facts found.” See, also, Supreme Royal Circle of Friends of the World v. Morrison, 105 Ark. 140, 146, 150 S. W. 561.
Here the court found “the trenches dug by the plaintiff were not paved with broken stone macadam as required by the contract”. The necessary implication of this finding is that there had been no modification of the original contract of April 24, 1946, upon which appellee predicated his action. Again, since there is substantial evidence to support this finding, we see no occasion to detail the conflicting testimony on the point. This finding is as conclusive against appellee on the issue of modification of the contract as is the finding of substantial compliance against appellants.
It follows that under the rules of law above-stated as to substantial performance, the judgment for the full amount of the contract price is not supported by the special findings of fact. The court should have allowed a deduction of the necessary cost of correcting the defect in appellee’s performance of his contract.
The judgment will be reversed and the cause remanded for a new trial. | [
-48,
108,
-3,
-19,
-104,
64,
24,
-119,
81,
-95,
117,
87,
-17,
-60,
28,
97,
-29,
125,
-12,
105,
-28,
-94,
15,
98,
-38,
-73,
-5,
71,
-104,
109,
-20,
-44,
76,
57,
-53,
-107,
66,
66,
-59,
80,
-50,
0,
9,
77,
-39,
65,
52,
110,
16,
75,
53,
-114,
-5,
41,
16,
-53,
-19,
44,
-21,
42,
81,
-13,
-118,
-123,
-1,
21,
1,
6,
-104,
3,
-24,
24,
-112,
53,
9,
-20,
115,
-90,
-62,
116,
67,
-101,
13,
96,
98,
34,
1,
-25,
-8,
-52,
22,
-98,
-115,
-92,
-78,
121,
75,
69,
-74,
-107,
120,
6,
5,
-2,
-12,
-52,
93,
108,
3,
-113,
-12,
-13,
43,
60,
12,
3,
-17,
3,
54,
116,
-57,
-94,
92,
71,
51,
-101,
-106,
-47
] |
Dunaway, J.
Appellant Connell is the purchaser of a second-hand automobile from one Caruthers, operator of the Kaiser-Frazer agency in Prescott, Arkansas, and appellee Robinson is in the used car and auto loan business in Fort Smith. Robinson brought an action in re-plevin in the Nevada Circuit Court to recover from Con-nell possession of the car. From a directed verdict and judgment for the plaintiff below Connell has appealed.
• The automobile which is the subject of this litigation was originally sold to one Basham by Caruthers on January 13, 1948, under a contract of conditional sale. This conditional sales contract was immediately assigned by Caruthers to Universal Credit Company. Basham left Prescott with the car, but continued to make the payments due under the contract.
On December 6, 1948, Basham traded in the car in question to Caruthers on a new car. Before making this trade Caruthers checked with Universal Credit Company and ascertained the balance due under the original conditional sales contract, which amounted to $1,008.73. Caruthers also found a purchaser, Connell, for the car to he traded in, before completing the deal with Basham. From the $2,000 purchase price paid by Connell, Caruth-ers paid Universal Credit Company in full.
Although Basham had represented to Caruthers at the time of the trade that there was no other claim against the car, he had in fact had a transaction with Robinson in Fort Smith on October 26, 1948. It was on the basis of this transaction that Robinson claimed title to the car in the instant suit.
Appellee’s version of the Fort Smith transaction was this: On October 26, 1948, Basham, who was unknown to appellee, came to his place of business which had a big sign over it — “Bank Rate Auto Loans Made Here” — and offered to sell the automobile in question for $1,380. Although appellee had some doubt as to Basham’s title, he verified Basham’s assertion that the only claim against the car was for the sum of $528.75 owed to Pacific Finance Company of Lubbock, Texas. Since the car was such a “sweet buy” at the offered price of $1,380, Robinson bought it, paying the Pacific Finance Company in full by check and giving the balance of the purchase price in cash to Basham. About six hours later Basham returned and sought to repurchase the car he had just sold, saying that his wife would probably leave him if she found out he had disposed of their automobile. Appellee then resold his recent “sweet buy” to Basham at a profit of $20 under a conditional sales contract upon which this re-plevin action is based. Basham paid part of the repurchase price in cash with a balance due of $898.08, secured by the conditional sales contract. Basham had no certificate of title to the car and Robinson did not recall whether he had been given any bill of sale by Basham.
Caruthers intervened in the cause alleging that he was entitled to be subrogated to the rights of Universal Credit Company under the initial conditional sales contract by reason of his having paid off that indebtedness at Basham’s request and therefore had a lien superior to any held by Robinson'; he further prayed that the cause be transferred to equity. By Connell’s answer, he claimed to be an innocent purchaser for value; he also claimed the right to be subrogated to the superior lien of Universal Credit Company since he knew of that company’s outstanding title-retaining note and had furnished the money for satisfying that indebtedness. Appellant also filed a motion to transfer to equity.
The trial court overruled the motions to transfer to equity, to which action exceptions were duly saved.
Appellee testified as has been set out above, and introduced the conditional sales contract and check to Pacific Finance Company. No other witness testified in his behalf as to anything relevant to the issues in this case.
Caruthers, Connell and a representative of Universal Credit Company testified as to the payment to the latter company, on the issue of subrogation; and as to the circumstances of the sale to Connell.
The trial court directed a verdict for the plaintiff.
Although there were a number of assignments of error made in appellant’s motion for new trial, including the refusal of the trial court to transfer the cause to equity, on this appeal we consider only the alleged errors argued in the brief. Purifoy v. Lester Mill Co., 99 Ark. 490, 138 S. W. 995. Since we have concluded that the court erred in directing a verdict for the plaintiff, it is unnecessary to discuss the form of the verdict, the only other point argued in appellant’s brief.
It was appellant’s contention at the trial and in the argument here presented that the alleged sale and resale between Basham and Robinson was not a bona fide sale, but was an attempted method of securing a loan made to Basham. If appellee never acquired title to the car, appellant as a purchaser for value would prevail over appellee’s claim, even without consideration of his claimed right of subrogation to the prior lien of Universal Credit Company. We have held that an unrecorded chattel mortgage is not a lien upon the mortgaged property as against a purchaser from the mortgagor, even though such purchaser has actual knowledge of its existence. Primm v. Farrell-Cooper Lumber Co., 210 Ark. 699, 197 S. W. 2d 557.
A question of fact was thus presented whether ap-pellee ever had title to the automobile. As already stated, appellee was the only witness who testified on this issue. It is well settled in Arkansas that the testimony of a party to an action is never regarded as undisputed in determining the legal sufficiency of the evidence. Skillern v. Baker, 82 Ark. 86, 100 S. W. 764, 118 Am. St. Rep. 52,12 Ann. Cas. 243; McCollum v. Graber, 207 Ark. 1053, 184 S. W. 2d 264.
This rule has been considered in two recent cases in which the question of retention of title in the sale of automobiles was in issue. In Sykes v. Carmack, 211 Ark. 828, 202 S. W. 2d 761, the question in a replevin suit was whether title had been reserved under an oral contract of conditional sale. Appellant Sykes, plaintiff therein, and his son testified that title was retained when the car was sold. The jury found otherwise. In answer to the con tention that the verdict was contrary to the undisputed testimony, this court said at page 830 in affirming the judgment: “Moreover the jury may not have credited the testimony that there was a reservation of the title. The interest of appellant and his son is such that their testimony may not he treated as undisputed, and this interest makes the truth of their testimony, although not disputed by any witness, a question of fact for the jury. In the case of Shillern v. Balter, 82 Ark. 86, 100 S. W. 764, 118 Am. St. Rep. 52, 12 Ann. Cas. 243, it was held that the general rule that where an unimpeached witness testified distinctly and positively to a fact and is not contradicted, and there is no circumstance shown from which an inference against the fact testified to by the witness can be drawn, the fact may be taken as established and a verdict directed accordingly, is inapplicable where the witness is interested in the result of the suit, or facts are shown which might bias his testimony, or from which an inference might be drawn unfavorable to his testimony or against the-fact testified to by Mm.”
In a situation where the plaintiff seller of a car claimed retention of title under an oral contract, in the case of Pugh v. Camp, 213 Ark. 282, 210 S. W. 2d 120, we said, in reversing the trial court for directing a verdict for the defendant third party purchaser, at page 285: “So, here, while appellant’s testimony, as above set out, was not disputed by any witness, his interest in the litigation is such that his testimony may not be regarded as undisputed, and a question of fact was made for the jury.”
Appellee argues that the rule of the foregoing cases is not applicable because his testimony is supported by the'-conditional sales contract — that the introduction of this document made a prima facie case entitling him to a directed verdict in the absence of positive testimony contradicting it by appellant. Johnson v. Ankrum, 131 Ark. 557, 199 S. W. 897, and Smith v. Ryan, 175 Ark. 23, 298 S. W. 498, cited by appellee in support of this argument do not so hold. In both of those cases the action was against the makers of a note, and we held that the introduction of the notes made a prima facie case for the plaintiffs, with the burden on the defendant makers to show their invalidity, on the respective grounds urged in defense — and that a jury- question was made. In the instant case, the action is not against the vendee in the alleged conditional sales contract, but against a third party purchaser who contends there never was a valid contract of sale; that it was a subterfuge. In a determination of this question of fact, the challenged document itself adds nothing to the testimony of appellee which is considered as contradicted under our decisions.
Since the judgment must be reversed for the reason already discussed, we have not deemed it necessary to detail the testimony bearing on appellant’s right to be subrogated to the lien of Universal Credit Company. It is sufficient to state that there was substantial testimony to support appellant’s claim on this score.
The judgment is reversed and the cause remanded. | [
116,
108,
120,
110,
26,
96,
58,
26,
122,
-60,
37,
-45,
-23,
-49,
20,
121,
-32,
29,
117,
104,
-9,
-77,
3,
0,
-46,
-109,
-39,
-59,
-79,
-37,
-28,
86,
76,
56,
-54,
-107,
-94,
-56,
-59,
92,
94,
-94,
-101,
100,
-39,
-59,
48,
-5,
0,
75,
69,
-122,
-13,
44,
27,
75,
109,
44,
107,
57,
-63,
-80,
-55,
15,
127,
22,
49,
100,
-70,
17,
-8,
12,
-112,
-80,
24,
-56,
115,
-90,
2,
116,
107,
-103,
8,
36,
118,
34,
33,
-55,
-4,
-68,
38,
-73,
15,
-122,
-78,
88,
8,
65,
-65,
-100,
123,
26,
4,
-12,
-14,
77,
81,
109,
3,
-53,
-110,
-127,
109,
118,
-98,
11,
-1,
75,
-92,
112,
-51,
-14,
93,
71,
119,
-101,
-121,
-16
] |
Leflar, J.
Defendant Atha was • convicted of the crime of operating an automobile “upon the public highway while under the influence of intoxicating liquors” in violation of Ark. Stats. (1949 Supp.), § 75-1023 (Act 255 of 1949).
' As one ground for appeal, defendant questions the sufficiency of the evidence to support the jury’s verdict. The evidence on which defendant was convicted included the testimony of the sheriff and a deputy , sheriff who were driving late at night in a car a little behind the car which defendant was driving. Both these witnesses stated that defendant was zig-zagging from side to side as he drove down Washington street near the courthouse in Murfreesboro, and that he staggered and smelled of whiskey when they stopped his car and ordered him out of it a few moments later. Several witnesses for defendant testified that they had been with him during various parts of the evening, that they had not seen him take a drink, and that he did not appear to be intoxicated. Defendant himself testified that he liad not had a drink of liquor for several weeks. Under this state of the evidence the jury was free to decide the case either way. We cannot say that its verdict of “Guilty” was without substantial evidence to support it.
Defendant also complains that there was a variance between the indictment and the proof, in that the indictment alleged drunken driving on a “public highway” whereas the evidence showed that defendant was driving on Washington street in Murfreesboro. We do not regard this as a variance at all. Assuming that Washington street is not on a state-numbered highway, it is still itself a “public highway” according to the “usual acceptation in common language” which by Ark. Stats., § 43-1023, we are required to employ in construing the words of an indictment. Defendant was in no wise misled by the words used. He knew that Ark. Stats. (1949 Supp.), § 75-1023, under which he was indicted, made it a crime to drive while intoxicated “upon any of the highways, streets or roadways within the State of Arkansas, ’ ’ and the evidence made it clear that he knew at all times that he was being charged specifically with drunken driving on Washington street in Murfreesboro. There could not possibly have been anjr “prejudice of the substantial rights of the defendant on the merits” within the meaning of Ark. Stats., § 43-1012.
Complaint is made of the fact that the Circuit Clerk was allowed to testify that the defendant had previously been convicted of drunken driving. The statute under which he was tried, in a later section, specifically authorizes such evidence for the purpose of imposing a heavier penalty in event of second or subsequent convictions for driving while drunk. Ark. Stats. (1949 Supp.), § 75-1024. The Circuit Judge expressly told the jury that the evidence was admitted for this and no other purpose. There was no error in this.
Finally defendant argues there was error in allowing him to be cross-examined, when he voluntarily took the stand as a witness for himself, about prior convictions for drunkenness and bootlegging. Such questioning on cross-examination is proper, for the purpose of testing-credibility of the witness. Benson v. State, 103 Ark. 87, 145 S. W. 883; Bookman v. Rorex, 212 Ark. 948, 208 S. W. 2d 991. The Court properly instructed the jury that cred ibility was tlie only issue upon which this testimony should be considered.
No error appearing, the judgment of the Circuit Court is affirmed. | [
48,
-22,
-28,
-66,
56,
64,
10,
-100,
-47,
-125,
-12,
115,
-85,
-60,
13,
49,
-85,
-5,
116,
41,
-35,
-89,
7,
1,
-14,
-9,
107,
-57,
-73,
-53,
-4,
-4,
12,
48,
-61,
85,
37,
72,
-27,
90,
-118,
-124,
-5,
64,
64,
-46,
36,
47,
-59,
15,
113,
-97,
-57,
43,
26,
-50,
-23,
110,
75,
-114,
88,
-23,
24,
29,
-49,
20,
-77,
116,
-68,
1,
-8,
57,
-100,
49,
1,
120,
115,
-74,
-124,
-12,
105,
-103,
12,
32,
-30,
1,
81,
-113,
-84,
-119,
39,
58,
-97,
-92,
24,
9,
73,
13,
-105,
85,
126,
20,
14,
-8,
124,
84,
89,
104,
7,
-113,
48,
-79,
45,
52,
22,
89,
-21,
39,
48,
113,
-51,
-42,
84,
21,
114,
-101,
6,
-106
] |
Ed. F. McFaddin, Justice.
The facts in this case present a sordid story, involving not only the litigants, but also two attorneys, W. R. Berkson of Few York City, and Morris Hecht of Hot Springs, Arkansas.
Mr. and Mrs. Oberstein lived in a Fifth Avenue apartment in New York. They had been married for many years, and had a daughter, Patricia, 17 years of age, when, in January, 1947, Mr. Oberstein announced to his wife that he wanted a divorce. He had become infatuated with another woman. When Mrs. Oberstein refused to consider a divorce, Mr. Oberstein moved from the apartment, ceased paying a $150 weekly allowance to his wife, and used the daughter, Patricia, to convey his threats to the effect that if Mrs. Oberstein did not obtain a divorce, he would give her no money.
At first Mrs. Oberstein consulted a New York attorney of lier own ekosing and was well advised that she conld force Mr. Oberstein to contribute to ber support. But she discontinued the services of her attorney and went to W. R. Berkson, her husband’s attorney, and made a “trade” with that attorney and her husband that she would obtain a divorce, in return for a contract of financial support. On July 22, 1947, Berkson gave Mrs. Oberstein a memorandum:
“Bus leaves 42nd Street Air Terminal Wednesday, July 23,1947, 7 A. M. our time, for Newark. Plane leaves Newark 6:50 A. M. Eastern Standard Time (7:50 A. M. daylight saving time), flight 207 American Airlines. Arrives Little Rock, Arkansas 12:40 noon.
“Upon arrival in Little Rock, you are to make arrangements at the field for a flight to Hot Springs, and are to telephone Mr. Morris Hecht, the attorney, whose offices are in the Arkansas Trust Building, Hot Springs, Arkansas, and whose telephone number is HOT SPRINGS 2657. He will make all arrangements for you there, and will call for you on your arrival at Hot Springs.
“You are to return on Thursday, July 24th, leaving from Little Rock, Arkansas at 5:30 P. M., flight 210 American Airlines. You are to make arrangements to arrive in Little Rock before 5:00 P. M. Mr. Hecht undoubtedly will assist you in making such arrangements.
W. R. B.”
At the same time he gave Mrs. Oberstein this memorandum, Berkson delivered to her the air line tickets and two of his own personal checks payable to Morris Hecht, one for $75 and the other for $90. Also Berkson gave Mrs. Oberstein a letter to Hecht which introduced Mrs. Oberstein, discussed her grounds for divorce, and told Hecht what Berkson desired the decree to contain. There was this significant sentence:
“I feel confident that yon will handle this matter to the satisfaction of all parties concerned. ’ ’
Iu keeping witli the Berkson memorandum, Mrs. Oberstein flew to Little Book on July 23, 1947, and proceeded to Hot Springs, where she contacted Morris Hecht. He took her to the Arlington Hotel, and she gave him the Berkson letter and the two checks. He returned to her room in an hour and she signed a paper which now appears as a deposition. Hecht advised her that the divorce decree would be granted on October 28, 1947. She had dinner with Mr. and Mrs. Hecht, spent the night at the Arlington Hotel, and returned to New York by plane the next day. That was the sole extent of her stay in Arkansas and her only visit to this State until some time in 1949, subsequently to be mentioned.
When Mrs. Oberstein returned to New York, she reported her Arkansas trip to Mr. Oberstein, remained in New York a short time, and at Oberstein’s expense took a cruise to California via the Panama Canal. When she returned to New York, she went to Berkson’s office with her sister so that the latter might furnish a deposition to be used in the pending Arkansas divorce case. Oberstein executed a waiver of service and an entry of appearance, in which appears this language:
“. . . And the defendant, Eli E. Oberstein, further agrees to pay to the plaintiff, Mary M. Oberstein, as and for her. support, and the support and maintenance of the infant issue of the marriage, Patricia Louise Ober-stein, as follows: $150 per week until such time as the plaintiff shall remarry or die, whichever shall occur the sooner. . .
The instrument was acknowledged in New York City by “William B. Berkson” as notary public.
Morris Hecht, the Hot Springs attorney, signed his name to a complaint, filed September 24, 1947, in the Grarland Chancery Court, alleging Mrs. Oberstein to be a resident of Arkansas, seeking a divorce from Mr. Ober-stein on the ground of indignities, and praying for support and maintenance of $150 per week. At the time he did this, Iieeht, of course, knew that Mrs. Oberstein was not a resident of Arkansas. Also, Hecht obtained and filed in the divorce suit the purported deposition of Anna Cook, 194 Ramble Street, Hot Springs, Arkansas, to tbe effect that Mrs. Oberstein bad lived in tbe borne of Anna Cook continuously from July 23, 1947, to October 22, 1947. Hecbt’s wife, Kathryn Hecbt, as notary public, certified that Mrs. Oberstein appeared before said notary in Hot Springs, Arkansas, on October 22, 1947, and gave ber deposition; whereas in fact Mrs. Oberstein had been in Hot Springs only tbe one time in July, 1947, when there was no suit pending. Morris Hecbt also obtained a decree of divorce, on tbe ground of indignities, for Mrs. Oberstein against Mr. Oberstein on October 28, 1947, in tbe G-arland Chancery Court on what Morris Hecbt knew was false evidence of residence.
On October 25, 1947, Mr. and Mrs. Oberstein signed, in New York City, a property settlement agreement, which provided that if tbe divorce decree should be granted, then Mr. Oberstein, in addition to the $150 weekly support money, would pay Mrs. Oberstein $25,000 in cash, pay rent on the apartment, surrender all tbe furniture in it, and also give Mrs. Oberstein an automobile. Both parties acknowledged the instrument before William R. Berkson, notary public. On November 5, 1947, Mrs. Oberstein signed a receipt to Berkson reading as follows :
“Received from William R. Berkson the respective sums of $25,000 and $850, the former representing the cash payment of Eli E. Oberstein to me on securing the final decree of divorce; the latter household allowances and arrears owed me by Eli E. Oberstein. This acknowledges receipt of all other papers referred to in the stipulation in the suit for divorce. . . . ”
Oberstein married “the other woman” a few days after October 28, 1947. Mrs. Oberstein continued to receive the $150 weekly payments; but in May, 1948, she filed proceedings in New York to have the Arkansas divorce declared void. Then, on December 20, 1948, she filed, in the original divorce suit in the Garland Chancery Court, a petition to have that Court vacate the divorce decree of October 28, 1947. As grounds for vacating the divorce decree, she alleged that it was void for want of jurisdiction of the Court over .the parties, and she sought to excuse herself from her part of the fraud and collusion by the claim that she was under “duress” of her husband when she came to Arkansas in July, 1947; and she claimed that this duress was continuous until November 6, 1947. Mr. Oberstein resisted the motion to vacate. Mrs. Oberstein testified when the motion to vacate was heard by the Garland Chancery Court; and on September 6, 1949, a decree was rendered vacating the divorce decree of October 28, 1947. Mr. Oberstein has appealed.
It is only fair to say that none of the present attorneys came into this case until shortly before the filing of the motion to vacate on December 20, 1948; and they as well as the Chancellor are in no wise involved or implicated in the collusion and fraud of the parties, or the unethical conduct of William E. Berkson and Morris Hecht.
So much for the recitation of facts. Now for the applicable rules of law and our holdings:
I. The Divorce Decree is Void. It is crystal clear that the divorce decree rendered in this case by the Garland Chancery Court on October 28, 1947, lacked the essential requirement of jurisdiction. In Cassen v. Cassen, 211 Ark. 582, 201 S. W. 2d 585, in speaking of the absolute requirement of “jurisdiction in divorce cases,” we said:
“Before a person can become a resident of this State so as to have his marital status determined by the courts of this State, he must, in truth and in fact, be a bona fide resident of the State, ... A divorce decree in this State, to fulfill a,ll the requirements for full faith and credit under the United States Constitution, can determine status only when there is a bona fide residence in this State. We quote from § 111 of the American Law Institute’s Restatement of the Law on Conflict of Laws: ‘A state cannot exercise through its courts jurisdiction to dissolve a marriage when neither spouse is domiciled within the state. ’ ’ ’
In the case at bar neither spouse was ever domiciled in this State, so it is clear that the divorce decree rendered by the Garland Chancery Court in this cause on October 28, 1947, was a decree rendered without jurisdiction, and was and is void, and is not entitled to full faith and credit under Article IY, § 1 of the United States Constitution. What we should do about vacating the decree is yet to be considered.
II. Duress. The next question is Mrs. Oberstein’s claim that she was under the duress of her husband in coming to Arkansas and obtaining the divorce. She offers this to excuse her conduct. The elements of duress, sufficient to invalidate a contract, are: (a) coercion; (b) loss of volition; and (c) the resultant contract (17 C. J. S. 526).
To sustain her claim of duress it was incumbent on Mrs. Oberstein to prove that she was compelled — not merely persuaded — to do what she did. The only threat which she says that she received from Mr. Oberstein was, that if she did not agree to get a divorce, he would leave America and pay her no money. These are her words:
“He had told me all along he wouldn’t give me any money at all, unless I did what he told me to do.”
But even when he made these threats, Mrs. Oberstein knew that he could not cut her off penniless. She had already been so advised by an attorney of her own choosing’:
“Q. Did you receive knowledge from any source, through counsel or otherwise, that, under the law, a woman’s husband could be made to support his wife and daughter ?
A. I didn’t need counsel for that. I knew that myself.
Q. Well, you knew that, didn’t you?
A. Yes, I did.”'
Since she knew that Mr. Oberstein’s threats were idle, it necessarily follows that she was not coerced by them. The evidence shows that even though she was at first unwilling to divorce Mr. Oberstein, she did agree to it because she thoug’ht she was making a good “trade”; and she even required him to pay her expenses for the cruise through the Panama Canal. "
Furthermore, all the duress, claimed to have been exerted on her, ceased when she signed the property receipt to Berkson on November 5,1947. Yet she continued to receive the weekly- support money from Mr. Oberstein until some time in May, 1948, when she refused the checks because of her New York proceedings. In Page v. Woodson, 211 Ark. 289, 200 S. W. 2d 768, the wife claimed duress to excuse her from her conduct. The facts showed in that case, just as here, (a) that the claimed duress ceased, with the granting of the divorce and the making of property settlement; and (b) that the-wife delayed over three months thereafter before initiating the proceedings which contained the claim of dnress. In denying any relief to the wife, we quoted from 17 Am. Jur. 902:
“ ‘. . . A contract entered into under duress may be ratified after the duress is removed. Such ratification results if the party entering into the contract under duress accepts the benefits growing out of it or remains silent or acquiesces in the contract for any considerable length of time after opportunity is afforded to avoid it or have it annulled . . ”
In the case at bar Mrs. Oberstein’s receipt of the weekly payments from November 6, 1947, to May, 1948, and her further delay until December 20, 1948, before filing the motion to vacate the Arkansas divorce decree —these facts together with others in the record — convince us that her Arkansas divorce proceedings were not caused by any duress exerted on her; but that she willingly traded her husband an Arkansas divorce decree for a property settlement. We conclude that she was not under duress and that she is now seeking the cancellation of the Arkansas decree to gain additional leverage on Mr. Oberstein for a “new negotiation.”
III. The Problem Confronting This Court. With the question of duress decided adversely to Mrs. Obei;-stein, the case before us becomes one in which a man and his wife conspired and colluded to obtain a divorce decree in Arkansas in a Court that had no jurisdiction. Our Statute (§ 34-1209, Ark. Stats. 1947) provides that no divorce decree will be granted when the parties have been guilty of collusion. Such also is the rule in other jurisdictions. See 17 Am. Jur. 243, et seq.; 27 C. J. S. 620, et seq.; Keezer’s “Marriage and Divorce,” 3rd Ed., § 515, et seq.; and see Annotations in 2 A. L. R. 699 and 109 A. L. R. 882. In 17 Ain. Jnr. 381 these statements appear:
‘ ‘ Collusion between the parties to a divorce proceeding will bar the granting of a decree of divorce, and ordinarily when the fact appears at the trial, the court of its own motion will dismiss the action . . . According to the weight of authority when the spouses through collusion or consent prevail upon the court to take jurisdiction of a divorce suit and render a decree therein, both are precluded from having that decree set aside or attacking its validity because of such collusion or consent, 33
From the facts previously detailed, it is clear that both of the parties are culpable in this case. We do not want any Court of any sister State, or of the Federal system, to afford full faith and credit to the void divorce decree rendered in the Oberstein case by the Garland Chancery Court. Neither do we want either of these parties to profit to the slightest extent by reason of their trifling with the Arkansas Courts. Such is the problem confronting this Court.
If Mrs. Oberstein be given the relief she asks — i. e., vacation of the divorce decree — we would, by precedent, make it possible for the Courts of Arkansas to be used by an unscrupulous litigant as a tool for carrying out a peculiarly vicious type of blackmail. Mrs. Oberstein wants the Arkansas divorce decree vacated so she can “re-negotiate” with Mr. Oberstein in her New York suit, in which he would then be unable to claim the Arkansas divorce decree to be entitled to full faith and credit.
On the other hand, if this Court, on its appellate review ele novo of the case, should reverse the vacating order entered by the Garland Chancery Court in 1949, we would be granting Mr. Oberstein relief'to which his own participation in the collusion and fraud disentitles him. He, in effect, is saying that the Arkansas Court was without jurisdiction to grant the divorce in the first instance, but that we should suffer the void decree to remain of record, so he can use it as a shield against Mrs. Oberstein’s New York suit. Thus, if we affirm the Chan- eery Court, we would be allowing Mrs. Oberstein relief to which she is not entitled because of her fraud; and if we reverse the Chancellor’s decree, we would be allowing Mr. Oberstein to have relief to which he is not entitled because of his fraud. Each of them is estopped, because of collusion and fraud, from obtaining the sought relief.
In none of our cases have both spouses come from another State, and by joint collusion and fraud, obtained a divorce decree from our Court; and then one of the spouses had the temerity, to subsequently ask the Court— in the same case — to relieve the petitioning party against her (or his) own fraud. That is the situation here. So we list the following cases as distinguishable from the case at bar: Corney v. Corney, 79 Ark. 289, 95 S. W. 135, 116 Am. St. Rep. 80; Barnett v. Miller, 131 Ark. 110, 198 S. W. 873; Dawson v. Mays, 159 Ark. 331, 252 S. W. 33, 30 A. L. R. 1463; Morgan v. Morgan, 171 Ark. 173, 283 S. W. 979; Rice v. Moore, 194 Ark. 585, 109 S. W. 2d 148; Murphy v. Murphy, 200 Ark. 458, 140 S. W. 2d 416; Barth v. Barth, 204 Ark. 151, 161 S. W. 2d 393; and Feldstein v. Feldstein, 208 Ark. 928, 188 S. W. 2d 295.
Excellent and exhaustive briefs have been submitted by the learned counsel for each side. Mr. Oberstein’s counsel cite, inter alia, Hall v. Hall, 93 Fla. 709, 112 So. 622; Curry v. Gurry, 65 App. D. C. 47, 79 Fed. 2d 172; McNeir v. McNeir, 178 Va. 285, 16 S. E. 2d 632; Ferry v. Ferry, 9 Wash. 239, 37 Pac. 431; Norris v. Norris, 200 Minn. 246, 273 N. W. 708; Horowitz v. Horowitz, 58 R. I. 396, 192 Atl. 796; Newcomer v. Newcomer, 199 la. 290, 201 N. W. 579; and Carpenter v. Carpenter, 146 Neb. 140, 18 N. W. 2d 737.
Mrs. Oberstein’s counsel cite, inter alia, Hotting s-head v. Hottingshead, 91 N. J. Eq. 261, 110 Atl. 19; Hopkins v. Hopkins, 174 Miss. 643, 165 So. 414; Lippincott v. Lippincott, 141 Neb. 186, 3 N. W. 2d 207,140 A. L. R. 901; Wampler v. Wampler, 25 Wash. 2d 258, 170 Pac. 2d 316; Querze v. Querze, 290 N. Y. 13, 47 N. E. 2d 423; and Roberts v. Roberts, 81 Cal. App. 2d 871, 185 Pac. 2d 381.
In addition to the above cases, we list the following: Williams v. North Carolina, 325 U. S. 226, 89 L. Ed. 1577, 65 S. Ct. 1092, 157 A. L. R. 1366; Sherer v. Sherer, 334 U. S. 343, 92 L. Ed. 1429, 68 S. Ct. 1087, 1 A. L. R. 2d 1355; Coe v. Coe, 334 U. S. 378, 92 L. Ed. 1451, 68 S. Ct. 1094, 1 A. L. R. 2d 1376; People v. Dawell, 25 Mich. 247, 12 Am. Rep. 260; In re Ellis Estate, 55 Minn. 401, 56 N. W. 1056, 23 L. R. A. 287, 43 Am. St. Rep. 514; Saul v. Saul, 74 App. D. C. 287, 122 Fed. 2d 64; and Axtell v. Axtell, 183 da. 195,187 S. E. 877.
To review all the cases in which courts have been called on to vacate divorce decrees obtained by fraud or collusion would be a work of supererogation; rather, we give only the general rules from the great weight of authority in such cases and then- draw our own conclusions.
In the topic on divorce and separation in 17 Am. Jur. 390, there is a discussion on the vacating and setting aside of void divorce decrees; and we find these three statements of the general rules:
(1) — ‘ ‘ Generally speaking, a decree of divorce can be vacated or set aside only at the suit of the spouse claiming to be injured by the decree, where it appears that the granting of the decree was in no way due to his or her fault . . .” 17 Am. Jur. 390.
(2) — “Generally, no relief will be granted in favor of a spouse against whom a divorce decree is granted if he or she consented to the granting of the decree or colluded in its procurement . . .” 17 Am. Jur. 390.
(3)- — “According to the weight of authority, when the spouses, through collusion or consent, prevail upon the Court to take jurisdiction of a divorce suit and render a decree, both are precluded from having’ that decree set aside or attacking its validity because of such collusion or consent . . . ” 17 Am. Jur. 381.
Under the first quoted statement, Mrs. Oberstein is not entitled to have the divorce decree vacated because she was at fault in her collusion and fraud in obtaining the decree. Under the second quoted statement, Mr. Oberstein is not entitled to any relief — either in the trial court or here on de novo appeal — because he was a party to the fraud in obtaining the divorce decree. And under the third quoted statement, both Mr. and Mrs. Oberstein are precluded from any relief of any kind connected with the divorce decree because they were both guilty of collusion and fraud on the Court.
But the State of Arkansas is the silent third party to every divorce proceeding in this State; and the other States of the Federal Union are entitled to know whether the divorce decree is valid and entitled to full faith and credit.
Therefore:
(1) — We hold that the divorce decree rendered in this cause by the Garland Chancery Court on October 28, 1947, was and is void; and this adjudication of invalidity prevents the divorce decree from being entitled to full faith and credit in this, or any other State.
(2) — We hold that each of the parties — Mr. and Mrs. Oberstein — is precluded from any relief of any kind involving the said decree: she from having it vacated, and he from having it recognized.
(3) — We refuse to adjudge costs in favor of either party, since both are culpable; and, without reversing or affirming, we direct that a mandate issue remanding this cause to the Garland Chancery Court so that the holding here will be entered as the decree of that Court.
(4) — The proper authorities of Garland County, Arkansas, will investigate and act on the matter of perjury and subornation of perjury as may be developed. We are calling to the attention of the New York Courts the conduct of W- R. Berkson in this case. By per curiam order this day made, the Bar Buies Committee of this Court is directed to institute disbarment proceedings against Morris Hecht.
The Chief Justice concurs and dissents; Mr. Justice George Bose Smith not participating.
In Mr. Oberstein’s response to the motion to vacate, he refers to Berkson as his attorney in this sentence: “He alleges that the plaintiff asked his attorney to assist her in engaging a Hot Springs attorney who would represent her in the contemplated proceeding.”
The full text of the letter is:
“July 21, 1947
Re: Mary M. Oberstein
v. Eli E. Oberstein Morris Hecht, Esq.
Arkansas Trust Building Hot Springs, Arkansas
Dear Mr. Hecht:
“Mrs. Oberstein will leave New York on Wednesday morning, 6:50 o’clock, flight No. 207, and is expected to arrive in Little Eock at 12:40 noon. She will call you from Little Eock and will endeavor to fly from Little Eock to Hot Springs.
“For your information, the facts are as follows:
“The parties were married on April 14, 1930, in Easton, Pennsylvania. There is one child of the marriage, to wit: a daughter, Patricia Louise Oberstein, who was born on January 31, 1931.
“Mrs. Oberstein’s action for divorce is based upon indignities to the person which consist of foul and abusive language by the defendant, so repeated and continuous in the presence of friends, strangers and business associates as to constitute a course of conduct rendering plaintiff’s condition intolerable. His attitude toward plaintiff indicated conduct connoting settled hate and manifestation of alienation and estrangement. He would boast to plaintiff and to others in their presence of his affairs with other women, would embrace other women in plaintiff’s presence, would on innumerable occasions state that he had not occupied the same bed with plaintiff for several years because he derived greater satisfaction from his affairs with other women.
“During the past number of years he would absent himself from home for long periods of time, and for the past three years abstained from having any marital relations with plaintiff, and in fact occupied a bed separate and apart from plaintiff. More recently defendant packed his belongings and took up quarters away from the home, and has not returned, and in addition, has stated that he refuses to return to the plaintiff, and for a long period of time had refused to furnish her with moneys for her subsistence and that of the daughter of the marriage.
“I believe the above sets forth sufficient indignities to the person of the plaintiff, and shows a desertion and abandonment.
_ “The plaintiff and defendant will agree upon terms of support and maintenance after the action is instituted, and will consent to the inclusion of such terms in the decree to be entered in the case. I believe that I can prepare the waiver here in New York and can obtain the signature of the defendant. Shall I include in such waiver the terms of alimony and support agreed upon between the parties, or do you require that by stipulation in the action to be included in the decree. I prefer that no separation agreement be entered into at this time.
“Mrs. Oberstein will make payment directly of your fees and expenses for her lodgings.
“I feel confident that you will handle this matter to the satisfaction of all parties concerned. If you require cooperation from ine, you have but to call upon me.
“Mr. LaCrosse joins me in best wishes and kindest regards.
“Yours very truly,
WEB/sm Air Mail”
Material portions of this agreement are:
“In the Garland Chancery Court
Mary M. Oberstein
v.
Eli E. Oberstein
STIPULATION
“It is hereby stipulated by and between the plaintiff and defendant in the above entitled action as follows:
“In the event that plaintiff shall obtain a final decree of divorce in the above pending action ,
“(1) The defendant shall pay to the plaintiff the sum of twenty-five thousand ($25,000) in cash.
“ (2) The defendant shall renew the lease on apartment 8C at 1150 Fifth Avenue, Borough of Manhattan, City of New York, in his name and shall pay the rent therefor.
“ (4) The defendant shall execute a hill of sale to a certain DeSoto Coupe automobile 1946 model, Serial No. 5793077, Engine No. 51120502.
“(5) The defendant waives all claim for household furniture now in the premises in apartment 8C at 1150 Fifth Avenue, Borough of Manhattan, City of New York.
“(7) The defendant shall procure a life insurance policy upon his life in the sum of $15,000, shall cause the plaintiff to be named therein as beneficiary, irrevocable, until such time as she shall remarry or die, whichever shall occur the, earlier, and the defendant shall make payment of all premiums which may become due on such policy during such period of time.
. “The foregoing provisions are in addition to the provisions set forth in the waiver and entry of appearance of the defendant, heretofore executed by him on the 3rd day of September, 1947, and filed in the above entitled action. The provisions hereof, it is stipulated and agreed, are not to be incorporated in any decree to be rendered in this action, but in the event of the breach of any of the provisions herein set forth, the plaintiff shall have the right, independently of these proceedings, to institute any action or proceeding in any jurisdiction whatsoever for the enforcement of the provisions hereof,
“In the event that a final decree of divorce shall not issue or be obtained in the within entitled action, then all the provisions set forth in this stipulation shall be deemed null and void and of no effect whatsoever.”
See, also, Univ. of Ark. Law School Bulletin, Vol. 9, p. 80 (May 15, 1941), “Duress — A State of Mind.”
See, also, Leflar on “Conflict of Laws,” §§ 133, 137, 138 and 140; the article “The Validity of Void Divorces” by Fowler Vincent Harper in 79 U. of Pa. Law Review 158; the article on “Extraterritorial Divorce” by Lorenzen in Vol. 54, Yale Law Review, 799; and the Annotations in 2 A. L. R. 699,109 A. L. R. 832,109 A. L. R. 1018. And in the 1948 Supplement to the Restatement of the Law on “Conflict of Laws,” § 112, there is this statement:
“Any person may be precluded from questioning the validity of a divorce decree if, under all the circumstances, his conduct has led to the obtaining of the divorce decree or for any other reason has been such as to make it inequitable to permit him to deny the validity of the divorce decree,” | [
48,
41,
-30,
127,
10,
-96,
14,
-120,
82,
47,
39,
-45,
-31,
-11,
4,
45,
-78,
47,
84,
97,
-41,
-73,
86,
38,
114,
-109,
104,
-39,
-79,
-19,
-11,
-35,
107,
114,
-62,
89,
102,
-62,
-53,
20,
28,
0,
-85,
-24,
-40,
-62,
52,
61,
72,
13,
97,
-82,
-29,
46,
29,
102,
44,
108,
-49,
-84,
-46,
48,
-117,
14,
-19,
22,
-125,
96,
-112,
36,
-40,
46,
-100,
48,
32,
-88,
115,
-90,
-122,
116,
68,
-119,
4,
112,
98,
4,
-115,
-11,
-16,
-120,
14,
61,
-115,
-121,
120,
72,
9,
72,
-66,
-100,
99,
85,
3,
-38,
57,
13,
17,
-32,
10,
-118,
-42,
-79,
-49,
120,
28,
17,
-29,
99,
87,
116,
-117,
34,
77,
70,
123,
-69,
-34,
-14
] |
Ed F. McFaddin, Justice.
Appellant filed action seeking to recover $600 alleged to have been paid to ap-pellee on November 25, 1945, when the latter was Sheriff of Craighead County. Appellant also sued the American Surety Company, the surety on Brown’s bond as Sheriff of Craighead County ; but for clarity we refer to Brown as the defendant and appellee. The defense was a general denial and a plea of limitations. At the close of tlie plaintiff’s case, the Court directed a verdict for the defendant ; and this appeal ensued.
G-iving the evidence in favor of the appellant its strongest probative force, it appears that on November 24, 1945, appellant and his wife were arrested on the charge of illegal possession of liquor for sale. Each was fined $100 and costs in the Mayor’s Court of Caraway, Craighead County, Arkansas; and appellant promptly paid the said fines and all costs. Thereafter appellant claims that he went to Jonesboro at the instruction of the appellee, Sheriff of Craighead County; and on that trip appellant claims that appellee required him to pay $600 additional, on penalty of being sent to jail. The $600 was paid on November 25th, and thereafter appellant learned that the $600, which he had paid to Brown, was never paid to the County Treasurer or any other legal depository.
This action was filed on May 5,1949. The question, whether the payment was voluntary, is not presented in this case. We are required to determine only (a) the applicable Statute of Limitations; and (b) when such Statute began to run.
I. The Applicable Statute of Limitations. By one side or the other we are cited to the following: the two-year Statute (§ 37-203 Ark. Stats.); the three-year Statute (§ 37-206); the four-year Statute (§ 37-207) ; and the five-year Statute (§ 37-213).
We hold that the pi ¿intiff’s cause of action comes within the three-year Statute of Limitations (i. e., § 37-206), because it is an action to recover money wrongfully taken by Brown from Wrinkles. According to appellant, Brown used bis office as a color or cloak to wrongfully obtain the money; so this is an action to recover money wrongfully obtained. See State v. Jones, 198 Ark. 756, 131 S. W. 2d 612; Baker v. Allen, 204 Ark. 818, 164 S. W. 2d 1004; F. & C. Company v. State, 197 Ark. 1027, 126 S. W. 2d 293, and cases there cited.
II. When the Statute of Limitations Began to Run. The date of the payment was November 25, 1945, and this action was filed on May 5, 1949, which was three years, five months, and ten days after the payment. The statutory bar of three years began when the plaintiff’s ' cause of action accrued. Three rules suggest themselves:
(a) — The cases hold that in an action to recover money paid by mistake — in the absence of any claim of fraud — the cause of action accrued on the date of such payment. See Richardson v. Bales, 66 Ark. 452, 51 S. W. 321; State v. Jones, 198 Ark. 756, 131 S. W. 2d 612; and Brookfield v. Rock Island Improvement Co., 205 Ark. 573, 169 S. W. 2d 662, 147 A. L. R. 451. If Wrinkles paid Brown the $600 by a simple mistake as to whether it was due, then Wrinkles’ cause of action to recover the money accrued on the date of payment, and was barred when this action was filed.
(b) — The cases hold that in an action to recover money paid to a public officer under duress, the cause of action accrued as soon as the duress was removed. "While we have found no cases in this State on the point, the texts — based on cases from other jurisdictions — recognize this statement as the uniform rule. See 40 Am. Jur. 835 containing the discussion “Duress By Public Officers”; and 34 Am. Jur. 193 containing the discussion “Duress and Undue Influence.” If Wrinkles paid Brown the $600 because of duress (that is, because Brown was a public officer threatening imprisonment), then the cause of action to recover the money accrued as soon as the duress was removed. There is nothing in the evidence to show that the duress was not removed as soon as the payment was made; so the cause of action was barred.
(c) — The cases hold that in actions to recover money paid because of fraud, the cause of action accrued when the fraud was discovered, or should have been discovered, with the exercise of reasonable diligence. See Dilley v. Simmons National Bank, 108 Ark. 342, 158 S. W. 144; Wright v. Lake, 178 Ark. 1184, 13 S. W. 2d 826; and see, also, 34 Am. Jur. 132. If Brown obtained the $600 from Wrinkles by fraud, then the cause of action accrued when Wrinkles discovered the fraud, or should have discovered it, with the exercise of reasonable diligence; and the evidence shows that Wrinkles discovered the fraud either at the time of payment, or within a very short time thereafter, and at all events, more than three years before the filing of this action.
Wrinkles testified that Brown insisted that the $600 was to settle the case with the Deputy Prosecuting Attorney, but Wrinkles admitted that within four weeks after the payment he became suspicious and went to the bank to see about the check which he had cashed to pay Brown the $600. With his suspicions thus aroused, an inquiry pursued with reasonable diligence would have established Brown’s fraud if it was not already known. The Deputy Prosecuting Attorney testified that within “several months” after the date of the alleged payment, Wrinkles discussed the matter with him. So with Wrinkles’ suspicions aroused, within four weeks of the date of payment, and with the Deputy Prosecuting Attorney available to inform him that the money had not been paid to any legal depository, certainly Wrinkles had that knowledge of the fraud which the law requires to constitute accrual of the cause of action. With all these facts, Wrinkles waited three years, five months, and ten days from the date of payment before filing this action.
All the evidence shows that the cause of action was barred by the three-year Statute of Limitations; and we, therefore, affirm the judgment of the Circuit Court.
This was the Statutory Bond required by § 12-1101, et seq., Ark. Stats., 1947.
This is the rule in testing' the correctness of an order directing a verdict against an appellant. See Garner v. Missouri Pacific Rd. Co., 210 Ark. 214, 195 S. W. 2d 39.
See. 48-918, et seq., Ark. Stats., 1947, forbids such possession in dry territory.
Plaintiff testified he had the money in a bank and Brown sent a man with him to get the money from the bank. | [
112,
-21,
-8,
60,
-104,
-32,
42,
-104,
82,
1,
-91,
-45,
-19,
70,
4,
121,
-29,
125,
117,
121,
-61,
-73,
7,
67,
-14,
-69,
-56,
-59,
49,
79,
-28,
-44,
76,
48,
66,
-111,
102,
-128,
-51,
92,
-114,
0,
-69,
77,
113,
64,
48,
107,
64,
11,
113,
-98,
-21,
47,
48,
79,
105,
44,
79,
63,
80,
-16,
-102,
21,
-17,
20,
-127,
5,
-100,
67,
104,
46,
-104,
49,
0,
104,
114,
-90,
-122,
84,
79,
-103,
44,
98,
98,
34,
-123,
-25,
-8,
-104,
22,
-2,
-99,
-89,
-16,
80,
75,
109,
-66,
-100,
111,
-108,
-123,
-4,
-15,
-44,
81,
108,
39,
-114,
-44,
-79,
-51,
52,
6,
3,
-17,
49,
48,
117,
-49,
-30,
92,
71,
123,
27,
-122,
-41
] |
Smith, J..
The facts out of which this litigation arose are recited in the decree from which this appeal comes, and are as follows:
On December 23,1924, Jeff P. Nix and wife borrowed $1,350 from the Lyman Eeal Estate Company, and as security therefor executed a mortgage on two lots in the city of Fort Smith. On March 6,1926, the real estate company assigned this mortgage and the debt which it secured, without recourse, for value, to E. L. Elliott. On February 19, 1925, Nix and wife conveyed these lots to Ben Cravens, it being recited in the deed to him that he assumed and agreed to pay the mortgage in favor of the Lyman Eeal Estate Oompany.
The court found the fact to be that Cravens was unaware of this provision in the deed to him, and that he never, in fact, assumed that debt or agreed to pay it.
The court further found that, by deed dated October 26, 1927, Cravens and wife conveyed the lots to Dyer Meadors and wife, and that these grantees, in their turn, assumed and agreed to pay the Lyman Eeal Estate Company mortgage.
Upon this finding of fact the court decreed a lien on the lots for the amount of the mortgage and the interest thereon, and ordered the property sold in satisfaction of the lien, but refused to render a personal judgment against Cravens.
Cravens’ testimony was to the following effect: In February, 1925, he and O. J. Hawkins owned a farm in Crawford County, for which Jeff Nix offered to trade other property. The offer was accepted, and Nix conveyed the lots in Fort Smith to Cravens and other prop erty to Hawkins for their Crawford County farm. The deed from Nix to Cravens, as well as the deed from Nix to Hawkins, were both delivered to Hawkins, who, without submitting them to Cravens, caused them to be recorded, and Cravens did not, in the trade, agree to assume and pay the mortgage on the Nix property. Hawkins’ testimony was to the same effect.
According to the recitals of the deed from Nix to Cravens, that conveyance was not made subject merely to the outstanding mortgage in favor of the real estate company, but ivas made upon the consideration of the assumption of its payment. The agreement to pay this mortgage was a part of the consideration of the deed, and upon accepting the deed this contractual obligation was imposed. Such conveyances are quite common, and their effect is well defined.
In the case of Wallace v. Hammonds, 170 Ark. 954, 281 S. W. 902, it was said: “It is well settled in this State that, where a purchaser of mortgaged lands from the mortgagor assumes and agrees to pay the mortgage thereon, he becomes personally liable therefor, which liability inures to the benefit of the mortgagee, who may enforce it in an appropriate action.” See also Felker v. Rice, 110 Ark. 70, 161 S. W. 162 ; Walker v. Mathis, 128 Ark. 317, 194 S. W. 702 ; Kirby v. Young, 145 Ark. 507, 224 S. W. 970 ; Beard v. Beard, 148 Ark. 29, 228 S. W. 734 ; Patton v. Adkins, 42 Ark. 197 ; Benjamin v. Birmingham, 50 Ark. 433, 8 S. W. 183.
In the case of McCown v. Nicks, 171 Ark. 260, 284 S. W. 739, 47 A. L. R. 332, the facts were that McCown and others sold a tract of land to Willis, and reserved a vendor’s lien to secure balance of unpaid purchase money. Willis conveyed the land to Nicks, the deed reciting that Nicks assumed the payment of the balance of the unpaid purchase money. Nicks made a payment on the purchase money and secured an indulgence of time, when, without completing the payments, he reconveyed to Willis for a consideration, recited in the deed, of $1,000 in cash and the assumption by Willis of the payment of the unpaid purchase money notes executed by Willis for the purchase of the land.
McCown and the other vendors sued both Willis and Nicks. The latter denied personal liability on the notes, and alleged that, after purchase of the land by Nicks from Willis, he resold the property to Willis, and by such sale was absolved from liability to the plaintiff vendors, and that he was never indebted directly to the plaintiffs for the unpaid purchase money.
The court treated the law as being settled that Nicks was liable to the vendors of his grantor upon his assumption of payment of the balance of unpaid purchase money, but the case was disposed of upon the decision of the question of rescission by a reconveyance of the property by Nicks to his own grantor, whose debt he had assumed as a part of the consideration for the conveyance to himself. It was pointed out in the opinion that there was a contrariety of view as to whether one who sells property, upon which there is an incumbrance, and procures from his grantee, as a consideration or part consideration of the purchase price, a promise to pay off the debt or incumbrance, can afterwards release his grantee from the obligation or liability to pay the debt to the creditor holding the lien. We held, however, that Nicks’ right to rescind this obligation to pay Willis ’ debt existed, provided the right to rescind was exercised before any privity had been established between the lienholder and Nicks. We held that privity had arisen by part payment by Nicks and the procurement of an extension of time for other payments, and in holding Nicks liable for the debt he had assumed we saidThe doctrine of this court is that the ‘acceptance of a deed containing a stipulation whereby the grantee agrees to pay a mortgage on the land implies a promise to perform it; on which promise, in case of failure, assumpsit will lie’ ” [citing authorities].
Here there has been no attempt to rescind. Indeed, by his conveyance of the land to Meadors, Cravens has placed it beyond his power to rescind. He has not only conveyed the lots, but he passed on to his grantee the identical obligation as to part of the consideration for the deed from himself which he had assumed in the deed to himself.
The testimony establishes the fact, as the court found, that Hawkins did not tell Cravens that the deed to Cravens recited this obligation. But the fact remains that Hawkins was Cravens’ agent. This is true as a matter of law. The deed was delivered to Hawkins for Cravens, and the ratification of this action is conclusively shown by the fact that Cravens has since conveyed the title'which he thus acquired. Cravens cannot therefore be heard to say that Hawkins was not his agent in this transaction. He accepted the benefit of the exchange of lands negotiated by Hawkins, and he must therefore also accept the obligation of that contract.
The decree of the court below will therefore be reversed, and the cause will be remanded with directions to enter a decree in accordance with this opinion. | [
-76,
109,
-80,
63,
26,
64,
42,
27,
90,
-95,
-28,
83,
107,
90,
0,
125,
-30,
9,
113,
105,
71,
-77,
39,
34,
82,
-77,
113,
-35,
-75,
-51,
52,
-42,
77,
52,
-54,
21,
-30,
-30,
-57,
24,
-50,
1,
40,
109,
-35,
0,
56,
-89,
80,
78,
17,
-82,
-13,
44,
61,
75,
72,
46,
79,
-87,
-48,
-16,
50,
14,
95,
7,
16,
71,
-72,
-127,
74,
10,
-112,
49,
-127,
-23,
115,
52,
-106,
116,
64,
-103,
8,
38,
118,
10,
-3,
-17,
-16,
-116,
47,
30,
-99,
-90,
-94,
88,
67,
41,
-66,
-100,
126,
16,
5,
-14,
110,
-115,
24,
104,
10,
-49,
-106,
-127,
31,
48,
-102,
3,
-1,
95,
36,
112,
-49,
-94,
93,
67,
112,
-101,
-121,
-111
] |
Per Curiam.
Appellant, having obtained an appeal from a decree of the White Chancery Court and having lodged a certified copy of the decree in this court, now asks the court to make an order directing the stenographer who took in shorthand a report of the oral testimony in said cause as required by act 267 of the Acts of 1925, to make and file with the clerk of said chancery court a transcript of his stenographic notes as required by said act. See Acts of 1925, p. 823. He asks that the court direct said stenographer to prepare and deliver said transcript of his notes, free from costs, in forma pauperis. This court has no jurisdiction to make such order. The remedy of appellant in such case is in the chancery court. While the chancery court could not make any change in its decree after an appeal had been taken and a transcript containing a certified copy of the decree was lodged in this court, it retained jurisdiction to perform any act in furtherance of the appeal. Rindlaub v. Rindlaub, 19 N. D. 352, 125 N. W. 479, and cases cited. The lower court does not by reason of the appeal lose its jurisdiction to do anything that may be necessary for the presentation of the case in the appellate court. 3 C. J., p. 1254, par. 1367. See also Schofield v. Rankin, 86 Ark. 86, 109 S. W. 1161.
In State of Louisiana v. Clark, 33 La. Ann. 422, it was held that, although the jurisdiction of the lower court ceases when the order of appeal has been granted, yet the court retains its power over its clerk to compel him to fulfill the ministerial duties of his office in the case. Our original jurisdiction in matters of mandamus does not extend to cases like this, and the application is denied. | [
-80,
-20,
-11,
-68,
42,
33,
50,
-74,
96,
97,
53,
81,
45,
-45,
20,
111,
-29,
47,
85,
107,
-49,
-74,
6,
65,
-14,
-13,
-13,
87,
-9,
92,
-25,
30,
72,
48,
-117,
21,
70,
-56,
-115,
80,
-114,
1,
-39,
-20,
-7,
73,
48,
97,
18,
15,
117,
-1,
-29,
46,
85,
-54,
-55,
44,
-23,
-127,
65,
-112,
-101,
13,
125,
7,
-79,
23,
-72,
13,
88,
46,
-104,
25,
2,
-3,
114,
-90,
-121,
80,
43,
56,
32,
98,
-26,
17,
-51,
-17,
-68,
-88,
47,
-66,
-99,
-89,
-45,
73,
72,
33,
22,
-101,
61,
-108,
7,
118,
-20,
-59,
29,
108,
9,
-113,
-108,
-89,
39,
90,
-106,
66,
-22,
-93,
16,
113,
-48,
-40,
84,
75,
51,
-102,
-98,
-112
] |
Robert H. Dudley, Justice.
The chancellor ruled that the complaint in this case failed to state a cause of action for an illegal exaction, and, as a result, the chancery court did not have jurisdiction. Appellant appeals and argues that she pleaded facts sufficient to state a cause of action for an illegal exaction. The ruling of the chancellor was correct, and, accordingly, we affirm.
The facts pleaded were that appellant taxpayer purchased, within the State, a new automobile and an extended warranty, and that appellee Revenue Division of the Department of Finance and Administration misinterpreted the gross receipts tax statute and imposed the sales tax on the price of the extended warranty. The taxpayer challenges only the State’s interpretation of the law. She does not challenge the validity of the underlying tax law.
In Pledger v. Featherlite Precast Corp., 308 Ark. 124, 128-29, 823 S.W.2d 852, 855-56 (1992), we explained:
This exaction case involves a taxpayer who seeks tp enjoin a government from taxing him. In this second kind of exaction case, which, for convenience, we label an “illegal tax” exaction case, the exaction itself must be alleged to be illegal before the chancery court has jurisdiction under the constitutional provision. It is true that we have many cases in which the collection of taxes has been enjoined under the illegal exaction provision, but all involve a tax that was itself illegal. See for example Greedup v. Franklin County, 30 Ark. 101 (1875), an attempt to collect a county levy in excess of the five mills allowed by the constitution; Lyman v. Howe, 64 Ark. 436, 42 S.W. 830 (1897), a tax based upon an assessment not made by the assessor; Ragan v. Venhaus, 289 Ark. 266, 711 S.W.2d 467 (1986) and Merwin v. Fussell, 93 Ark. 336, 124 S.W. 1021 (1910), attempts to collect taxes not properly voted by the people; McDaniel v. Texarkana Cooperage & Mfg. Co., 94 Ark. 235, 126 S.W. 727 (1910), a tax levied by a county having no jurisdiction over the property; City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982) and Waters Pierce Oil Co. v. Little Rock, 39 Ark. 412 (1882), taxes which were not authorized by the city’s delegated power of taxation. However, we have always held that if the taxes complained of are not themselves illegal, a suit for illegal exaction will not lie. Schuman v. Ouachita County, 218 Ark. 46, 234 S.W.2d 42 (1950). In Taber v. Pledger, 302 Ark. 484, 489, 791 S.W.2d 361, 364 (1990), we wrote that “a suit to declare a tax statute unconstitutional, and therefore void” comes within the illegal exaction provision, while a suit “to determine whether the taxpayer’s transactions fall within an exemption created by statute” does not come within the section. More important, and precisely on point in this case, we have held that a flaw in the assessment or collection procedure, no matter how serious from the taxpayer’s point of view, does not make the exaction itself illegal. Schuman v. Ouachita, supra (citing Missouri Pacific Ry. Co. v. Fish, 181 Ark. 863, 28 S.W.2d 333 (1930) and Beard v. Wilcockson, 184 Ark. 349, 42 S.W.2d 557 (1931)). Here, the taxpayer does not contend that the use tax is itself illegal, but rather contends that the assessment of its individual tax, and that of others similarly situated, is carried out in an unconstitutional and illegal manner. Consequently, this suit does not come within the illegal exaction provision of the Constitution of Arkansas, and the Chancellor erred in certifying it as a class action coming within that provision.
Subsequently, in Martin v. Couey Chrysler Plymouth, Inc., 308 Ark. 325, 824 S.W.2d 832 (1992), we held that when the legality of the underlying tax act was not in issue, but only the correctness of the person assessed, the complaint did not state a cause of action for an illegal exaction.
In this case the taxpayer does not challenge the validity of the underlying tax; therefore, the chancellor correctly ruled that the complaint did not state a cause of action for an illegal exaction. The taxpayer’s relief is that which is provided by Ark. Code Ann. §§ 26-18-405 & 28-18-406 (1987), and not a suit for illegal exaction.
Affirmed. | [
-42,
-18,
-8,
44,
42,
-64,
58,
-102,
-46,
-95,
101,
19,
-17,
-61,
16,
118,
-77,
61,
113,
122,
-59,
-77,
35,
65,
-14,
-45,
-39,
87,
-75,
73,
-20,
-100,
76,
-95,
-54,
-43,
103,
-54,
-91,
-40,
-58,
2,
-118,
68,
-8,
-64,
52,
-55,
82,
75,
97,
-114,
-13,
46,
30,
-53,
105,
46,
73,
63,
-48,
-80,
-41,
13,
127,
21,
1,
52,
-104,
1,
104,
14,
-120,
57,
3,
-24,
123,
-90,
-62,
84,
5,
-103,
8,
102,
-30,
19,
41,
-17,
-72,
-120,
46,
-5,
29,
-90,
-110,
120,
107,
15,
-105,
-99,
118,
18,
-60,
114,
-16,
5,
-97,
124,
11,
-114,
-76,
-95,
-19,
116,
-110,
2,
-17,
-92,
48,
112,
-49,
-37,
92,
-57,
26,
-109,
14,
-44
] |
John I. Purtle, Justice.
This is an appeal from an order granting summary judgment against the appellants on their claims against the appellees for damages arising out of an automobile accident. We agree with the appellants that the court erred in holding that there was no genuine issue of a material fact to be resolved.
The facts concerning the accident are not relevant because the appellees have admitted liability. The issue concerns a draft release which was issued by appellees’ insurance carrier and negotiated by appellant, Larry Bennett.
Sometime after the accident, Steve Skinner, the claims specialist for the appellees’ liability insurance carrier, contacted the appellants and agreed to pay “all necessary and reasonable expenses.” He subsequently issued a draft in the amount of $1,208.00 for payment of damage to the Bennett vehicle. Later, Skinner issued a second draft for $333.30 representing medical bills incurred to that date. Still later, he issued a third draft on a release form in the amount of $572.00, the amount of the chiropractor bill. The back of the draft contained the following language:
The undersigned payee accepts the amount of this payment in full settlement of all claims and damages to property and for bodily injury, whether known or unknown, which payee claims against any insured under the policy shown on the face hereof, or their respective successors in interest, arising out of an accident which occurred on or about the date shown. THIS RELEASE RESERVES ALL RIGHTS OF THE PARTIES RELEASED TO PURSUE THEIR LEGAL REMEDIES AGAINST SUCH PAYEE.
After negotiating the draft, the appellant continued to incur medical expenses. When informed by Skinner that the matter was closed so far as the insurance carrier was concerned, the appellants filed suit for damages against Gregory Don Trout for negligence and against Jo Lavonne Trout for negligent entrust ment of an automobile. The appellants also alleged that the appellees were engaged in a joint venture. In their answer the appellees contended that the third draft constituted a full and complete accord and satisfaction in settlement of all claims. The appellees then filed a motion for summary judgment and supporting brief. An affidavit by Skinner was made in support of the motion for summary judgment; in it he stated that he had told the appellants that he would pay all necessary and reasonable expenses resulting from the occurrence. Skinner’s affidavit also stated that Larry Bennett had agreed to sign a release after Dr. Chester quit treating him and sent a final bill. Skinner stated that he issued the draft in the amount of Dr. Chester’s bill as a complete release. It was his contention that Bennett understood that he was signing a full release.
Appellants responded to the motion for summary judgment. Bennett filed an affidavit in support of the response in which he stated that he was receiving treatment from a doctor in Paragould and one in Memphis at the time he received the final bill from Dr. Chester. He also stated that the draft for $572.00 was the exact amount of Dr. Chester’s bill and that he understood it was simply another payment on what Skinner had already agreed to pay. Bennett’s statement included the following:
I understood the language on the back of the check as releasing the final bill from Dr. Chester. Mr. Skinner did not tell me he would require a complete release in our conversation of September 21,1984. He told me to let him know about any other medical bills.
Bennett further stated that he had informed Skinner that unless his condition improved he would have to seek additional treatment.
It is obvious from the matters presented to the trial court on the motion for summary judgment that there is a direct conflict between the testimony of Bennett and that of Skinner. Additionally, the release on the back of the draft ended with the statement that “this release reserves all rights of the parties released to pursue their legal remedies against such payee.” Apparently the insurance company was reserving its right to go against Bennett, the payee. The language is, at the very least, ambiguous.
We have many times held that a summary judgment should be granted only when it is clear that there are no genuine issues of material fact to be litigated. Ford v. Cunningham, 291 Ark. 56, 722 S.W.2d 567 (1987). In order to settle the issue in this case it is necessary to weigh the credibility of the statements of Bennett and Skinner. Certainly the status of the release is material in-as-much as if it was final, the case is over. On the other hand, if it was merely an interim payment, no release was bargained for. There was unquestionably a substantial issue of material fact to be resolved in the proceeding, and summary judgment should not have been granted.
A decision concerning a somewhat similar issue is found in Creswell v. Keith, 233 Ark. 407, 344 S.W.2d 584 (1961), where this court reversed the trial court’s order dismissing the complaint. In reversing, this court stated:
There are several allegations in the response filed by Creswell that if true would render the release ineffective. Lack of consideration, misrepresentation amounting to fraud, and also duress may be shown to set aside a release, and these are questions of fact.
In Wilson v. Southwest Casualty Insurance Company, 228 Ark. 59, 305 S.W.2d 677 (1957), we held that a misunderstanding or unilateral mistake, when accompanied by fraud, misrepresentation, or inequitable conduct, is sufficient to invalidate a release. In Wilson, the parties testified that the adjuster had told them that if they would sign the release for their personal injuries he would settle with their insurance carrier for the property damage. However, after signing the release, the adjuster refused to settle with the insurance carrier for the property damage. This court held that since the parties understood that there would be a settlement with their insurance carrier on the property damage if they would settle the personal injury claim, this statement amounted to possible fraud in the procurement of the release, and consequently there was a matter to be decided by the trier of facts. The Wilson case stands for the proposition that a representation may be the basis of fraud in procuring a release if there was never any intention on the part of the promisor to fulfill the promise. In the present case the adjuster admits he never intended to pay any more on this claim. Whether he made an unfulfilled promise in order to obtain the release is a fact question which should have been decided by the trier of fact.
Reversed and remanded. | [
-16,
-20,
81,
-114,
25,
96,
42,
11,
125,
-125,
39,
83,
-81,
-57,
4,
39,
-25,
61,
113,
106,
87,
-77,
87,
-21,
-10,
-77,
-7,
69,
-79,
74,
-28,
-2,
77,
32,
-62,
-59,
102,
11,
-59,
80,
-50,
-108,
-120,
-24,
-39,
64,
48,
122,
80,
7,
49,
-97,
-30,
42,
16,
-53,
109,
44,
123,
-95,
-47,
-80,
-117,
5,
63,
3,
-77,
4,
-100,
11,
90,
8,
-112,
-79,
9,
-24,
114,
38,
2,
116,
107,
-103,
24,
98,
102,
33,
49,
-19,
124,
-104,
38,
-2,
31,
-123,
-110,
57,
89,
9,
-97,
-99,
112,
16,
-122,
126,
-8,
29,
13,
44,
3,
-50,
-108,
-77,
-17,
96,
28,
75,
-17,
43,
20,
117,
-50,
-16,
92,
71,
119,
-101,
95,
-98
] |
Tom Glaze, Justice.
The appellee has been (and continues to be) involved in defending a federal lawsuit wherein a group of black voters charged that the appellee’s city boundaries violated the Voting Rights Act of 1965 and the one man, one vote rule. This state litigation ensued in connection with determining whether the appellant or others had the obligation to defend the federal lawsuit. After several hearings and appeals, we affirmed the Lee County Circuit Court’s decision which held that under the terms of a public officials error and omissions liability policy (E & O policy) issued to appellee, appellant was obligated to defend appellee’s interests in the federal suit. See Home Indemnity Co. v. City of Marianna, 291 Ark. 610, 727 S.W.2d 375 (1987); see also City of Marianna v. Arkansas Municipal League, 291 Ark. 74, 722 S.W.2d 578 (1987); City of Marianna v. Arkansas Municipal League, 289 Ark. 473, 712 S.W.2d 305 (1986).
Upon the court’s last remand of this cause, the parties encountered a further dispute concerning the terms of the E & O policy, viz., whether the appellant was required, under a supplementary payments provision, to pay all costs taxed against the insured, the appellee, in the federal lawsuit. In holding the appellant was obligated to pay the costs taxed against appellee, the trial court further awarded appellee the sum of $100,675.62 for the appellee’s cost of defending the federal suit and the sum of $70,906.62 for the costs the federal court assessed against appellee for attorneys’ fees awarded the plaintiffs who instituted, and prevailed in, the federal suit. In this appeal, appellant claims the trial court erred in finding the supplemental payments provision was a part of the coverage given appellee under the E & O policy. It further contends the trial court was wrong in finding that the attorneys’ fees, incurred by the appellee in defending the federal litigation, were reasonable and that the court improperly relied upon oral testimony when determining the reasonableness of those fees since the fees issue was submitted pursuant to a motion for summary judgment. We affirm the trial court in all respects.
Appellant first argues the E & O policy issued to appellee should not be read to include the supplemental payments provision, which requires the appellant to pay all the costs taxed against the appellee for defending the federal suit. Undisputably, some confusion existed as to coverage, due to the manner in which the E & O policy was issued. James L. Winchell, claims adjuster for the appellant, opined that the policy jacket, which was attached to and contained the E & O policy, was one which related to a general liability policy — a policy that covers bodily injury or property damage. However, the policy jacket, on its face, specified the appellee as the insured and reflected the premium payment paid for E& O coverage under policy number GL1396972. The jacket also contained a supplementary payments provision which stated that, in addition to the policy’s limit of liability, appellant was obligated to pay all costs taxed against the appellee in any suit the appellant defended on the appellee’s behalf. The confusion arose in this matter when both an attachment and an amendatory endorsement were added and made a part of the policy. The first attachment, entitled “coverage part,” contained another supplementary payment provision but, unlike the jacket’s provision, it provided the payments would not be in addition to the policy limits. Subsequently, an amendatory endorsement was added and it specifically replaced the supplementary payments provisions in the attachment and provided that “supplementary payments do not apply to insurance afforded by this coverage part.” While the amendatory endorsement clearly amended or cancelled any supplemental payments provision in the E & O coverage attachment, the endorsement made no mention of the supplemental provision set forth in the jacket policy. Thus, the question arose as to whether the amendatory endorsement voided both supplemental payments provisions contained in the policy jacket and the first attachment even though the endorsement failed to refer to the one contained in the jacket.
We recognize that a contract of insurance is to be construed like other contracts, with the different clauses read together and an interpretation given that would harmonize all parts. See Continental Casualty Co. v. Davidson, 250 Ark. 35, 463 S.W.2d 652 (1971). However, an interpretation that will harmonize all parts is not always possible when there is ambiguity in the insurance policy because of two conflicting provisions. It is also established law in our state that provisions contained in a policy of insurance must be construed most strongly against the insurance company which prepared it, and if a reasonable construction may be given to the contract which would justify recovery, it is the duty of the court to do so. See Drummond Citizens Ins. v. Sergeant, 266 Ark. 611, 588 S.W.2d 419 (1979). Further, this court has held that if there is doubt or uncertainty as to the policy’s meaning and it is fairly susceptible of two interpretations, one favorable to the insured and the other favorable to the insurer, the former will be adopted. Id.
The appellant’s own witness, Mr. Winchell, agreed that the language contained in the amendatory endorsement was confusing when trying to determine whether that endorsement was intended to affect the supplemental payments provision set out in the policy jacket. Winchell attributed this confusion to the wrong policy jacket, i.e., a general liability form, being placed on the E & O policy by appellant’s own employee. From the evidence, it is clear the appellee had nothing to do with causing the existing confusion that resulted from the appellant’s own mistake when issuing the E & O policy. Unquestionably, an ambiguity exists when one tries to reconcile the various conflicting provisions that were made a part of appellee’s E & O policy, and in applying the controlling principles set out in our cases cited above, we construe the policy provisions most strongly against the appellant. Accordingly, we are unable to say that the trial court was clearly erroneous in finding that the appellee was entitled to supplementary payments under the terms of the E & O policy issued to it by the appellant. See Burdette v. Madison, 290 Ark. 314, 719 S.W.2d 418 (1986).
Appellant also challenges the reasonableness of the attorneys’ fees awarded to the appellee. In the same connection, appellant argues that the trial judge improperly relied upon oral testimony given by witnesses for the appellee and that such testimony should not have been considered because the matter was before the court on a motion for summary judgment. Appellant cites the case of Montgomery Ward & Co. v. Credit, 274 Ark. 66, 621 S.W.2d 855 (1981), for the proposition that there is no provision for taking oral testimony in the matter of a summary judgment. Appellant does not contest the sufficiency of the oral testimony, but it contends that without the testimony of the appellee’s witnesses, there was insufficient proof that the attorneys’ fees were reasonable.
We cannot agree that the issue concerning attorneys’ fees was before the trial court by way of a summary judgment motion. The appellee had filed both a summary judgment motion and a second amended supplemental complaint seeking monetary judgments for attorneys’ fees and the costs assessed against it. When the hearing in question commenced, the appellee’s attorney made the following statement: “We are here this morning on a hearing on outstanding motions or a second amendment to the supplemental complaint that was in the file.” (Emphasis added.) The appellant never objected to counsel’s statement nor did it object to the testimony subsequently given by appellee’s witnesses. It is obvious that the appellant realized there were disputed facts to be resolved in the hearing that morning. In fact, appellant offered the testimony of Winchell to show that the E & O policy did not require the payment of any costs assessed against the city. From our review of the record, it is readily apparent that the trial judge conducted a hearing on the appellee’s complaint.
For the reasons set out above, we affirm the trial court’s findings and decisions.
While the style of this case shows that there are additional appellees besides the City of Marianna, the issues addressed in this case apply only to the City and therefore we refer to the singular, appellee. The City appealed after the trial court entered judgment under ARCP Rule 54(b).
In this respect, the federal court, under 42 U.S.C.A. § 1988 (1981), awarded attorneys’ fees as a part of costs and it is undisputed in this appeal that this provision, standing alone, would obligate appellant to pay attorneys’ fees assessed against the appellee. | [
84,
-20,
-16,
-67,
9,
-31,
50,
8,
91,
-95,
-27,
83,
-17,
-21,
24,
101,
-69,
59,
117,
107,
87,
-93,
23,
66,
-80,
-69,
-23,
84,
-68,
-17,
-28,
-12,
76,
57,
-22,
-43,
71,
66,
-123,
-40,
74,
-118,
-117,
101,
-23,
66,
32,
-23,
50,
79,
49,
-124,
-15,
42,
48,
75,
104,
44,
-35,
32,
66,
51,
-114,
15,
127,
21,
49,
103,
-102,
-121,
90,
42,
-112,
49,
0,
-24,
114,
-90,
2,
118,
105,
-103,
-120,
102,
100,
0,
-119,
-17,
-52,
-128,
14,
-41,
31,
-92,
82,
121,
59,
14,
-74,
21,
126,
20,
7,
-2,
-12,
21,
31,
44,
-117,
-82,
-42,
-93,
-19,
-32,
-107,
-126,
-25,
19,
-108,
101,
-54,
-94,
93,
71,
58,
-109,
31,
-55
] |
John I. Purtle, Justice.
The Pulaski County Circuit Court affirmed the Public Service Commission’s order no. 4, as amended by order no. 9, which directed public utilities in Arkansas to eliminate from their base rates municipal utility or franchise taxes. The orders required the utilities to collect such taxes solely from the utilities’ customers located within the levying municipality. On appeal appellants unsuccessfully argue that such levies are not taxes, that the order is discriminatory, in violation of the equal protection clause of the Constitution, and the order is arbitrary and capricious.
On February 7,1980 the PSC issued order no. 4 and later amended it by order no. 9 dated July 16, 1981. The order, as amended, prohibited utility companies from including municipal taxes in their base rates. The utilities had previously included such charges in the base rate applied to customers thoughout the territory served by the utility. Public hearings were held prior to the issuance of the PSC orders. Appellants filed a petition for review on May 5, 1980 which was prior in time to order no. 9. The later order was essentially to change the date of implementation of the order. The PSC gave timely notice of its intention to consider the elimination of municipal taxes from the base rates of utilities in future rate cases.
The hearing was set for May 30, 1979 in the hearing room of the commission, Justice Building, Little Rock, Arkansas. Written comments concerning the proposed amendments were invited from interested parties. Many utilities and municipalities submitted written statements or had a representative appear at the public hearing. Most of the comments by the utilities felt it was a good idea to collect these levys from the residents of the levying authority and to reflect on the utility bills the amount which was collected for taxes on behalf of the taxing authorities. The appellants protested strongly at the hearing. The matter was appealed to the Pulaski County Circuit Court where the order was affirmed in its entirety. There is no need to discuss the testimony presented to the PSC because the issue in this case does not turn on the weight of the evidence or credibility of the witnesses. Therefore, no further factual background will be set out.
The issue involved in this case is whether the PSC has authority to issue the order appealed from and whether such authority was used in an arbitrary or capricious manner or in violation of the equal protection or due process clauses of the Constitution of the United States. The appellants argue that the “franchise fee” charged is in the nature of a contract and is not a tax. Such contractual charges, it is alleged, are in exchange for rights of way and franchises furnished by the municipalities. Appellants rely primarily on Ark. Stat. Ann. § 19-2319 (Repl. 1980). This statute authorized municipalities to contract, on behalf of their inhabitants, with a utility to construct and operate such utilities within municipal boundaries. El Dorado v. Coats, 175 Ark. 289, 299 S.W. 355 (1927). Act no. 164 of 1977 (Ark. Stat. Ann. §§ 73-202 a and b (Repl. 1979) divested cities and towns of all rate making authority and vested it in the PSC. The present change is not in the nature of a contract but is a rate charge to customers of the utility.
Appellants rely upon the case of Natural Gas & Fuel Corp. v. Norphlet Gas & Water Co., 173 Ark. 174, 294 S.W. 52 (1927) to sustain their argument that a franchise fee is a contractual charge. The last cited case dealt with a franchise to furnish utilities to a city. There is no mention in the case of the fees imposed after a utility receives a franchise. Appellants also argue that municipalities have the right to establish terms and conditions upon which public utilities may be permitted to operate within the borders of said municipalities. It is true that Ark. Stat. Ann. § 73-208 (Repl. 1979) grants this power to municipalities. However, Ark. Stat. Ann. §§ 73-202a and 73-202b clearly divest the cities and towns from having any jurisdiction to fix or determine rates, and grant exclusive jurisdiction to the PSC in rate making matters. Therefore, neither the case cited nor the statute relied upon support the argument of the appellants. We are not here considering a franchise fee but rather an assessment in the nature of a tax imposed upon the residents by way of what is sometimes referred to as a “franchise tax.”
Appellants insist that it is proper for a utility to include these fees or taxes in the rate base for all of the utility subscribers. Appellants argue that requiring all utility subscribers to pay the same amount or rate for services constitutes equal treatment under the law. On the other hand, they insist that if only municipal residents pay for the increased costs (imposed by the municipalities) such treatment is discriminatory to residents. We agree that an essential requirement of equal protection is that there must be a rationally related or legitimate state interest. However, this does not mean that a utility serving adjoining cities must require residents of both cities to pay the same rate or tax on utilities. If there is any basis for argument that order no. 4 is discriminatory it is on the side of those living outside the municipality levying the assessment. We agree with the PSC that municipal fees or taxes, assessed upon resident utility users, should be paid by the residents of the assessing municipality.
Finally, appellants argue that order no. 4, as amended by order no. 9, was made arbitrarily and capriciously and without any factual basis. The General Assembly of the State of Arkansas has delegated investigation and rate making authority to the PSC. Ark. Stat. Ann. §§ 73-202a & b and 73-215 (Repl. 1979). There is no dispute but that the PSC is the fact finder in such cases and that in performing its legislatively delegated function of rate making the PSC has broad discretion. In Arkansas Power & Light Co. v. Arkansas PSC, 226 Ark. 225, 289 S.W.2d 668 (1956) it was stated:
Once a fair hearing has been given, proper findings made and other statutory requirements satisfied, the courts cannot intervene in the absence of a clear showing that the limits of due process have been overstepped. If the Commission’s order, as applied to the facts before it and viewed in its entirety, produces no arbitrary result, our inquiry is at an end.
We have repeatedly held that if the commission’s order is supported by substantial evidence in the record, and there is neither fraud nor arbitrariness, then this court must confirm the findings of the commission. Arkansas Power & Light Co. v. Arkansas PSC, supra. See also, S.W. Bell Tel. Co. v. Arkansas PSC, 267 Ark. 550, 593 S.W.2d 434 (1980); Arkansas Power & Light v. Arkansas PSC, 261 Ark. 184, 546 S.W.2d 720 (1977); Inc. Town of Emerson v. Arkansas PSC, 227 Ark. 20, 295 S.W.2d 778 (1956). The judicial branch of the government must defer to the expertise of the commission. Fisher v. Branscum, 243 Ark. 516, 420 S.W.2d 882 (1967). The PSC is a creature of the legislature and in rate making it is performing a legislative function, by delegation. It was created by the General Assembly and possesses the same power as the General Assembly while acting within the powers conferred upon it. S.W. Bell Tel. Co. v. Arkansas PSC, supra.
There is no question that the charges here under consideration are in the form of taxes no matter whether called by another name or not. Pursuant to order no. 4 these taxes will be divided and apportioned to the residents and taxpayers residing (or owning property) within the corporate limits of the taxing authority. There has been no showing that the orders of the PSC are arbitrary and capricious and the orders are supported by substantial evidence. We must, under the law, affirm the order of the PSC requiring public utilities to eliminate from their base rate structure assessments made by municipalities in the nature of local taxes or franchise fees. | [
-12,
-19,
-10,
-36,
44,
64,
58,
-106,
89,
-77,
-25,
83,
-17,
112,
-107,
41,
-69,
127,
112,
113,
-123,
-73,
71,
74,
-96,
-13,
-15,
-35,
-80,
95,
-28,
-57,
90,
57,
-54,
-11,
118,
70,
-19,
92,
-26,
3,
-127,
96,
-39,
66,
52,
104,
114,
-117,
49,
-114,
-77,
44,
16,
-53,
-83,
44,
89,
-82,
64,
58,
-102,
21,
127,
-121,
17,
36,
24,
-123,
-16,
10,
-104,
49,
40,
-24,
115,
-90,
-122,
-20,
13,
89,
-115,
104,
34,
3,
32,
-1,
-116,
-120,
30,
-34,
-99,
-92,
-74,
89,
2,
8,
-73,
-108,
108,
82,
15,
-2,
-29,
-124,
-37,
108,
9,
-122,
-90,
-93,
-84,
-28,
-102,
6,
-29,
-57,
52,
116,
-50,
-78,
94,
-49,
54,
91,
14,
-48
] |
Steele Hays, Justice.
This is an appeal from the denial of a motion to transfer a capital murder case to juvenile court. We find no merit to the appeal.
On March 27,1992, appellant Timothy Oliver, aged fifteen, was arrested and charged with two counts of capital murder, along with three others, all codefendants. The charges arose from the brutal slaying of the parents of one of the codefendants in which all four youths participated. The couple was found dead in the bedroom of their DeQueen home on March 24 after reports that neither had been seen for several days. The police went to the couple’s home and found them slain in their bed, both victims of bludgeoning and multiple stab wounds.
The son of the couple gave a confession of his involvement on March 25, 1992, and implicated his three friends, including Oliver. Oliver was interviewed on March 26 and gave a confession which detailed his involvement in the murders. Oliver’s account of the murders included the following excerpt:
Sometime back, Mike Friend talked to me, George Rhoades and Rickey Dawson about wanting to kill his Dad. Mike has talked to all of us at different times about how to kill his stepfather. We have talked about using poison and shooting him.
Friday night, March 20, 1992, we were at George’s house talking about going to DeQueen Saturday night. Saturday afternoon we were at George’s house. We talked about how we were going to kill him and what everyone was going to use.
I decided I would use the ball bat, George would use some type of two-bladed knife, sharp on both sides. Rickey was going to use a large stick about the length of a baseball bat and Mike was going to use an aluminum sword or practice sword. It was only sharp on the end.
We all loaded up in George’s truck and went to DeQueen. We hadn’t been smoking or using any drugs or drinking. We got to DeQueen and me and George got out at the skating rink. Mike and Rickey were in the truck riding around. Around 11:00 p.m. Mike and Rickey picked me and George up. We all went to the Pizza Hut and had a pizza. After we left the Pizza Hut we went straight to Mike’s house.
On the way out there Mike told everyone what he wanted them to do. Mike had already told us in Hot Springs that his Father had $3000 in his billfold and he would split the money with us to help kill his Dad.
Mike told us he would go into the house first because he knew his Dad had a gun under the mattress and he would keep him from getting it.
Mike went in the house first, then George, then me and Rickey last. Mike went to his Father’s side of the bed, I was behind Mike. George was at the end of the bed by the Mother’s side and Rickey was at the end of the bed. Rickey turned the light on and Mike started stabbing his Dad with the sword as fast as he could. The end of the sword bent. His Dad raised up and I hit him in the left side of the head above his eye. Mike took the bat from me and hit his Dad in the head. I got the bat back and hit him in the head three more times while his head was laying on the nightstand. Rickey took the bat from me and hit the lady with it. She was face down when Rickey hit her. George hit the man in the head with the bat also before Rickey took the bat. I saw Rickey hit the lady twice with the bat. I guess George cut her throat because he had talked about it before we got to the house and he had the razor-blade or whatever it was.
As a fifteen-year-old charged with capital murder, it was at the prosecutor’s discretion whether to charge Oliver as a juvenile or an adult, Ark. Code Ann. § 9-27-319(b) (1987). In this case Oliver was charged as an adult, and Oliver then moved to transfer the case to juvenile court under Ark. Code Ann. § 9-27-318(d) (1987). A hearing on the transfer was held on May 20, 1992, and Oliver’s motion was denied. He brings this interlocutory appeal under the authority of § 9-27-318(h).
Oliver does not dispute the trial court’s refusal to transfer. Rather, he argues the trial court erred in denying a motion for a continuance he had made prior to and again at the hearing to obtain psychological testing. He insists that because the court failed to grant the continuance he was prevented from presenting evidence of rehabilitation potential and character traits that the court may consider in a transfer hearing under § 9-27-318.
We first note that the request below was not for a continuance for general psychological testing, as appellant argues on appeal, but for a continuance to raise funds from appellant’s family for a private psychologist to administer intelligence and achievement tests.
On April 30, 1992, Oliver filed a motion for state funds to pay for a psychologist for the purpose of “assistance of a psychologist to perform IQ testing and other achievement tests.” On May 14, 1992, Oliver filed a second motion in regards to the upcoming May 20th transfer hearing, requesting a continuance because “additional time is needed for a psychological evaluation of defendant prior to said hearing.” Neither of the motions was ruled on prior to the May 20th hearing.
At the May 20th hearing appellant addressed both motions and in the first, stated:
Ms. Jones: Your honor, on behalf of Mr. Oliver, I have filed a motion for assistance of an expert. Your Honor, we are requesting funds, since this defendant is indigent, to be able to hire a psychologist to do IQ testing and perform other achievement tests of Mr. Oliver. [Our emphasis.]
The Court responded:
... As far as a psychologist, if they want to be examined we’ll send them to the state psychologist at the state hospital if you want to make a motion to have them examined by the psychologist.
Ms. Jones: Then at this time, your honor, are you denying my—
Court: Yes.
Ms. Jones: —request for a private psychologist?
Court: I am.
Ms. Jones: Your Honor, then I have also filed a motion for a continuance asking for additional time to gather — to visit with Jr. Oliver’s family to see if funds could be raised with the family to get a psychological examination from a private psychologist and we would like to have that information, your honor, before we proceed with the motion to transfer hearing that is scheduled today. [Our emphasis.]
Court: I’m going to deny that motion, too.
From that context of the hearing it appears the request for the psychologist was not for the purpose of testing for character traits and rehabilitation potential but for testing appellant’s intelligence through IQ and achievement tests. It was also evident that the continuance was not for the psychological testing itself, but for time to raise money from appellant’s family for private testing.
An appellant may not change the basis for his argument or raise a new argument on appeal, but is limited to what was requested in the trial court. Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988). The issue on appeal then is whether the trial court erred in denying a continuance to allow appellant time to raise money from his family for the purpose of hiring a private psychologist to administer IQ and achievement tests.
The burden is on the movant to show good cause for a continuance. Arkansas R. Crim. P. 27.3. A motion for continuance is addressed to the sound discretion of the trial court and the court’s discretion will not be reversed absent a clear abuse of the discretion. David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988). The burden of proving prejudice and an abuse of discretion rests on the appellant. Kelly v. State, 261 Ark. 31, 545 S.W.2d 919 (1977); David v. State, supra.
The court considers several factors in considering whether a continuance should be granted, including: 1) diligence of the movant; 2) probable effect of the testimony; 3) relevance of the testimony; and 4) the likelihood of procuring the evidence or witness sought. Touvell v. State, 299 Ark. 375, 772 S.W.2d 347 (1989). We have not given equal weight to these factors, but have considered them in the context of the facts of each case. See e.g. Touvell v. State, supra; Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1987).
This case is similar to Touvell v. State, supra, where we found the factors weighing most heavily were the relevance of the evidence and the probable effect of the testimony. As in Touvell, there was other evidence here that made the information appellant was seeking by way of continuance merely cumulative. There was evidence of appellant’s general intelligence level and achievement levels through the testimony of his school counselor and the school’s records of appellant’s grades and standardized testing over the last three years. We believe these tests were sufficient to apprise the court of appellant’s intellectual and scholastic abilities for purposes of the transfer issue. Appellant has not shown how greater development of this sub-issue would have been helpful to the judge. Further, appellant did not apprise the court of the likelihood of securing funds from appellant’s family nor how long such a project might take. There was no showing that it could have been accomplished speedily while this capital murder trial remained pending.
In light of the fact that the court offered testing through the state hospital, which appellant has not argued would be inferior to private testing, there has been no showing of an abuse of discretion by the trial court nor any prejudice resulting from the denial of a continuance.
Finally, we note trial court’s offer to appellant at the close of the hearing:
Court: I’ll leave the record open in this case until you file your notice of appeal... to allow you any additional testimony, but I’m make the ruling today, denying your motion to transfer, but I’ll leave the record open until you file your notice of appeal. . . which I guess would be thirty days. I don’t know. If you have any additional evidence to submit between now and the time your notice of appeal is filed, I’ll give you a speedy hearing in whatever county I happen to be holding court in.
The court in effect gave appellant additional time and there is nothing in the record to show this was utilized.
Affirmed. | [
113,
-52,
-100,
-84,
43,
-32,
42,
56,
-106,
-29,
119,
115,
-113,
-19,
65,
106,
37,
13,
68,
105,
85,
-73,
55,
73,
-30,
-13,
49,
-41,
51,
-49,
-20,
-35,
72,
96,
-54,
81,
66,
10,
-17,
-34,
-114,
16,
-72,
-30,
-45,
2,
96,
123,
94,
47,
53,
30,
-77,
43,
20,
-22,
-120,
108,
91,
-65,
92,
17,
9,
23,
-99,
50,
-94,
-122,
-98,
-128,
-6,
36,
20,
53,
-128,
-24,
51,
-90,
-124,
116,
13,
-119,
-116,
34,
-121,
4,
-55,
-58,
-71,
-127,
-81,
110,
-67,
39,
-8,
105,
69,
37,
-105,
-97,
104,
52,
62,
-16,
105,
77,
28,
108,
-114,
-49,
-108,
-109,
-115,
40,
-60,
-101,
-37,
37,
96,
113,
-51,
-10,
78,
69,
122,
-1,
14,
-46
] |
John A. Fogleman, Justice.
Appellant Griffith Lumber Company contends that a judgment, awarding appellee Connor $3,000 as damages on Connor’s suit alleging breach of contract for construction of a summer home for Connor on Horseshoe Lake in Crittenden County, is erroneous. Its points for reversal assert insufficiency of the evidence to support the verdict and error on the part of the trial court in instructing the jury. We find no reversible error.
It is undisputed that Connor entered into a contract in February, 1969, with Griffith Lumber Company, acting through the manager of its Hughes office, W. D. Luns-ford, to erect the house, according to plans and specifications prepared by an architect, who did not make any specifications as to air conditioning. Connor contended that, under the contract, the lumber company was to design and install adequate heating and air conditioning. He alleged that appellant breached the contract by failing to substantially complete the building, by not following the plans and specifications and through defective workmanship. He also alleged that Griffith Lumber Company had acknowledged by a letter dated December 16, 1969, that the air-conditioning system was defective. Appellant’s defense was, to a great extent, bottomed upon the contention that Connor had accepted the work, except for the air conditioning, and that the air-conditioning system was adequate for the area it was intended to serve. By an amended complaint, Connor alleged damages totalling $5,236 of which $3,150 was for purchasing and installing a new air-conditioning system, $483 for repairing a fireplace, installing an exhaust fan in a bathroom and finishing a runway in an attic; $1,000 for installing a pocket door and reworking and repairing inside construction to conform to the plans and specifications; $28 for installing insulation for ducts according to the plans and specifications; and $575 for repair to windows to make them watertight, installing base and base shoe and repairing water damage.
The jury returned its verdict for Connor for $3,000. The evidence was in sharp contradiction on many points. Appellant states its point for reversal for insufficiency of the evidence thus: “The verdict of the jury was contrary to the law and the weight of the evidence.” Of course, we cannot consider the weight of the evidence and must affirm if there is any substantial evidence to support the verdict. Horn v. Shirley, 246 Ark. 1134, 441 S.W. 2d 468; Wasson v. Warren, 245 Ark. 719, 434 S.W. 2d 51; Dunaway v. Troutt, 232 Ark. 615, 339 S.W. 2d 613. We find substantial evidence to support a verdict in the amount for which it was rendered.
Appellant first contends there was no evidence to show that there were any latent defects in the work. The alleged latent defects of which Connor complained, other than the air conditioning, consisted largely of the items for which he claimed damages. Connor told of having occupied the house for about two weeks in late June or early July, 1969, while appellant’s employees were still doing some work there, and, after an absence of four or five days, having returned and found that water had run down through the ceiling in two bedrooms and a hallway. He said he found later that a pocket door was useless because it had been improperly located and installed, that cold air was coming into the bathroom because of the lack of a set of louvers on a suction fan in the attic, that brick falling in the fireplace caused it to disintegrate when the first fire was built, that water was coming through windows in the porch (or playroom), that linoleum flooring had curled up because of appellant’s failure to install quarter round or base shoe and that plywood flooring had not been installed in the attic as called for by the plans. Except for the pocket door, Connor maintained he did not discover these defects until after December 16,1969, the date of the final payment of the contract price by him, and the delivery of a letter by Lunsford, acknowledging problems with the air conditioning and the responsibility of appellant to see that the unit operated satisfactorily and to replace it if it did not.
Connor said he complained to Lunsford, who promised to correct the defects, but Lunsford died before he could do so. Connor admitted that some corrections had been made, but testified that, after Lunsford’s death, he talked to Mr. Griffith, the president of appellant, who promised to take additional corrective measures, but failed to do so. Herschel Manning, a licensed Arkansas contractor engaged in commercial and residential building in the area and a Carrier Air Conditioning dealer, testified that the reasonable cost of replacing the three-ton air-conditioning unit with a five-ton was $3,150. His estimates of costs for repairing other defects and for supplying deficiencies in the work generally support the amounts claimed by appellee.
Appellant contends, however, that Connor waived any claim for all these alleged defects and omissions, except for the air conditioning, by taking possession of the property in June of 1969 and making final payment on the contract price on December 16, 1969. We cannot agree that there was a waiver here as a matter of law. Most of the authorities relied upon by appellant on this subject are based upon the assumption that the owner accepted the work with knowledge that it had not been done according to contract, or under circumstances from which such knowledge would necessarily be imputed, or upon contract provisions different from those here. Some of them clearly recognize that the general rule as to waiver of defects by acceptance does not apply to latent defects. See, e.g., 13 Am. Jur. 2d 59, Building and Construction Contracts, § 55; Guschl v. Schmidt, 266 Wis. 410, 63 N.W. 2d 759 (1954). In the case of latent defects, according to these authorities, before there can be a waiver, the defect must be known by the owner or discoverable by him by reasonable inspection, or there must have been a reasonable time and opportunity for discovery by due diligence. Others recognize the owner’s right to recoupment, set-off or recovery of damages on account of the defective character of the work due to material noncompliance with the contract when timely objection was made, even though, because of use and occupancy, he may not be heard to deny the contractor’s right to recover the contract price. See Bush v. Finucane, 8 Colo. 192, 6 P. 514 (1885); Katz v. Bedford, 77 Cal. 319, 19 P. 523 (1888); Guschl v. Schmidt, supra. Some of these authorities clearly recognize the existence of questions of fact as to whether the defects complained of were latent, and whether timely objections were made by the owner. This seems to be consistent with our holdings in similar situations. Dutton v. Million, 114 Ark. 330, 169 S.W. 1183.
In one of the few cases on the subject in Arkansas, it was held that when work contracted for has been done substantially in accordance with the terms of the contract, or where there has been an acceptance of the work by the owner, the contractor may, notwithstanding defects therein, recover the contract price, less the. cost of correcting such defects. Fitzgerald v. LaPorte, 64 Ark. 34, 40 S.W. 261. In that case, it was said that continued use of the building did not necessarily constitute an acceptance of the work.
If Connor’s testimony was found worthy of belief, there was a question of fact involved. It is true that the contract provided for payment of $2,500 when the house was turned over to Connor and accepted, but it also provided that a balance of $1,500 “be held” for 120 days after Connor received the house. This was a clear provision for possible deficiencies and omissions in performance of the contract. This payment was not made until December 16, 1969, and was made then, according to Connor, because Lunsford said he needed the money. Connor said that, at the time, he was unaware of any of the defects he discovered except for the air conditioning and the pocket door, and that Lunsford had made a number of repairs to the house between June and December. It is logical to believe that some of the matters of which Con- nor complained would not have been discovered until winter weather caused them to be revealed. Connor also claimed that when he moved into the house, Griffith had retained and still had a key to the house.
In Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W. 2d 518, in treating the matter of waiver, we had this to say:
Waiver is the voluntary abandonment or surrender by a capable person of a right known by him to exist, with the intent that he shall forever be deprived of its benefits. It may occur when one, with full knowledge of the material facts, does something which is inconsistent with the right or his intention to rely upon it. Sirmon v. Roberts, 209 Ark. 586, 191 S.W. 2d 824. In the cited case, we said that conduct amounting to waiver should be carefully inspected and all evidence upon the subject impartially scrutinized.
We readily agree that there was substantial evidence tending to show that Connor had accepted the work and had waived appellant’s noncompliance with the contract, if any, except as to air conditioning. But there was definitely a fact question on the score, which was resolved against appellant by the jury.
Appellant’s argument relating to evidence about the inadequacy of the air-conditioning system is based for the most part upon its contention that the only witness who testified that the air conditioner to be supplied by appellant was to be a unit with a five-ton capacity was Connor and that his testimony was sharply contradicted by Delton Cummings and Marion Bobby Latham, that the initial plans called for a place on a glass-enclosed porch or playroom for the two-ton unit, admittedly installed by Connor, that the three-ton unit installed by appellant was quite adequate for the rest of the house and that a five-ton air conditioner in addition to the two-ton unit would have been far in excess of Connor’s needs and would have increased his contract price. Appellant points out that the lips of Lunsford, its manager, have been sealed by death, but argues that Connor’s testimony is outweighed by the fact that the building plans called for the separate window air conditioner on the porch, together with the testimony of Latham that, at the request and upon the instruction of Lunsford, he figured the air-conditioning load for the house exclusive of the porch and that the three-ton unit was more than adequate for that purpose.
But we cannot reject the testimony of Connor or find it insubstantial solely because we might think that it is outweighed by other evidence or on the basis of credibility. The determination of credibility was totally within the province of the jury. Bradberry v. Gower, 247 Ark. 700, 447 S.W. 2d 124; St. Louis-Southwestern Ry. Co. v. Holwerk, 204 Ark. 587, 163 S.W. 2d 175; Lewis v. Shackleford, 203 Ark. 500, 157 S.W. 2d 509; Lloyd v. James, 198 Ark. 255, 128 S.W. 2d 1019. We could only reverse the jury verdict upon the conflicting evidence presented if we could say there was no reasonable probability that the facts could be as related by Connor and as the jury found, even though we might think that his version was highly improbable. Green v. Harrington, 253 Ark. 496, 487 S.W. 2d 612; Beard v. Coggins, 249 Ark. 518, 459 S.W. 2d 791; Blissett v. Frisby, 249 Ark. 235, 458 S.W. 2d 735; Fields v. Sugar, 251 Ark. 1062, 476 S.W. 2d 814; Rhodes v. Bernard, 248 Ark. 869, 454 S.W. 2d 318, 47 A.L.R. 3d 961. So long as a party’s testimony relates to matters that might or might not have existed, and his right to recover is dependent upon the truth or falsity of his testimony, it is evidence of a substantial character and, if believed by the jury, is sufficient basis for a recovery by him. Independent Stave Company v. Fulton, 251 Ark. 1086, 476 S.W. 2d 792.
Connor testified that:
He had no experience in heating or air conditioning. He had an architect in Memphis, Tennessee, where Connor lived, draw up plans and specifications for the house, which covered everything with the exception of air conditioning. He negotiated the contract with Lunsford, gave him a set of blueprints and told him that it was up to the contractor to furnish a set of prints showing heating and air conditioning, but that, in no event should there be less than five tons of air conditioning, after which Connor told Lunsford that he was marking his own set of plans accordingly and Lunsford said, “I’m marking mine.” Lunsford “reached over” and, Connor assumed, did mark the print which Lunsford worked from and had in his possession until he ended the job. The set of plans in Connor’s possession bore the notation “no less than five ton air conditioning” in Connor’s handwriting but he did not put it on any other set, even the extra set which he furnished his attorney and which was exhibited to appellant’s attorney when Connor’s discovery deposition was taken.
The contract dated February 27, 1969, which Connor testified was drawn by Lunsford, provided for the house to be built according to plans and specifications for $19,-000, with everything furnished except floor covering. Connor stated he did not know that the air-conditioning unit appellant installed had a three-ton capacity rather than a five-ton capacity until Delton Cummings, a Carrier Air Conditioning dealer, was sent by the distributors to calculate the load at the house long after the house construction was completed and after Lunsford’s death. He also testified he installed a second unit on the porch as an auxiliary unit at his own éxpense and Lunsford understood this. It was for the jury to decide whether to believe this witness. Since they apparently chose to do so on this point, we are bound by their decision.
Appellant’s complaint about jury instructions falls upon the basis of what we have said heretofore. Its requested instruction number one is premised upon the assumption that Connor was barred from any recovery except for any breach of the contract relating to air conditioning and for that reason would not have been a correct instruction. Appellant’s objection to instructions given at the request of appellee is not well taken because it is based entirely on the same premise. Appellant’s argument on both points is based upon its contention that there was a waiver of any defects as a matter of law. It appears to us that the issues were properly submitted to the jury.
Since we find no error, the judgment is affirmed. | [
-47,
-18,
-39,
-20,
12,
96,
106,
-40,
101,
-127,
55,
91,
-17,
-114,
12,
99,
-25,
127,
-31,
58,
69,
-93,
23,
99,
-46,
-109,
-15,
-59,
-79,
111,
116,
-33,
76,
36,
-54,
-35,
-26,
0,
-59,
84,
-114,
-122,
10,
-28,
-39,
-62,
52,
62,
68,
11,
49,
-116,
-5,
47,
16,
-53,
109,
46,
107,
41,
81,
-16,
-110,
-115,
95,
5,
-79,
54,
-102,
3,
104,
60,
-112,
53,
1,
-24,
115,
-74,
-58,
-12,
1,
-71,
8,
98,
103,
2,
-123,
-49,
-20,
-72,
39,
-33,
-99,
-89,
-109,
24,
11,
109,
-73,
-99,
112,
18,
20,
122,
-25,
-51,
31,
108,
3,
-113,
84,
-77,
13,
52,
-42,
-125,
-17,
-93,
48,
113,
-49,
-95,
93,
7,
50,
-101,
-114,
-33
] |
DuNaway, J.
Appellant, Griffin Grocery Company, filed a claim with appellee, McBride, receiver for Vita-O-Ray Milling Company, for damages claimed to be due on account of an alleged breach of a covenant to surrender possession of a building in good condition in Fayetteville, Arkansas, in accordance with the terms of a lease agreement between appellant and the Milling Company. The claim was disallowed by the receiver, and the disallowance approved by the Chancellor. Hence this appeal.
A chronological statement of the events preceding the filing of the claim for damages will simplify consideration of the legal questions involved.
On July 1, 1939, appellant, owner of the business building in question, entered into a lease agreement with Vita-O-Ray Products Company. It appears that this lease was for a five-year term, with option to renew. Although the record does not reflect the exact date, about 1941 the Products Company went into bankruptcy. Sometime thereafter the Milling Company was incorporated to carry on the same type of business, with I. G. Fullington and other members of his family as principal officers and stockholders, as they had been in the bankrupt concern. The new company continued to occupy the building and paid rent as stipulated in the lease of July 1, 1939.
Beginning in February, 1943, Fullington wrote several letters to appellant asking for a renewal of the lease which was to expire July 1, 1944. Appellant claims to have had no knowledge of the bankruptcy and dissolution of its original tenant.
On November 1, 1943, a new lease was executed between appellant and the Milling Company. Although appellant contends that this lease was identical with the old one and simply a renewal thereof, this does not appear from the record. Nor is there any evidence that there was ever any assignment of the Products Company lease to the Milling Company, prior to the execution of the lease of November 1, 1943.
The Milling Company remained in possession of the premises until January 6, 1949, when it was adjudicated insolvent and appellee was appointed receiver. Prior to this, appellant had sold the building to J. K. Gregory on November 9, 1948.
The damage complained of resulted chiefly from the cutting of holes in the floors of the building for the instal lation of various pieces of machinery. In addition there was proof of broken windows and water damage caused by the stoppage of drains as a result of improper removal of debris.
The Chancellor found that most of the damage was done by the Bankrupt Products Company and held that the Milling Company was not liable therefor. The court further held that appellant, having sold the building to Gregory without reserving any claim for damages to real estate, had no allowable claim against the Milling-Company.
Appellant’s claim was predicated upon the provision in the lease agreement in which the Milling Company covenanted that “. . . at the expiration of the time mentioned in this lease, peaceable possession of the said premises shall be given . . . in as good condition as they now are, the usual wear, inevitable accidents and loss by fire excepted . . .”.
Appellant’s argument for reversal is that-the Milling Company assumed the benefits of the lease and is therefore liable for the obligations thereunder of the bankrupt company. It is true, of course, that one corporation may become liable to discharge the obligations of another, either by express agreement or by reasonable implication from all the facts and circumstances when a new corporation takes over the property of an old one. Good v. Ferguson & Wheeler Land, Limber & Handle Company, 107 Ark. 118, 153 S. W. 1107; Meeks v. Ark. Light & Power Company, 147 Ark. 232, 227 S. W. 405.
In the case at bar there was no express agreement shown, and as already pointed out there was no assignment of the original lease. "While it is contended that the new corporation was no more than the old one with a new name, the proof in the case does not establish this. No more is shown than that the two corporations occupied the same building and had some officers and stockholders in common. This does not meet the test of the cited cases for establishing assumption of liability by implication. Therefore, the Milling Company’s covenant to surrender the premises “in as good condition as they now are” was referable to the condition of the building at the time of letting under its lease of November 1, 1943. There is no proof of damage after this time.
The Chancellor was also correct in disallowing the claim of appellant on the other ground stated in the order appealed from. A covenant to surrender premises in a specified condition, as distinguished from a covenant to make repairs, is not breached until failure to deliver possession in the required condition upon termination of the lease. City Hotel Co. v. Aumont Hotel Company, Texas Civ. App., 107 S. W. 2d 1094; Tiffany, Landlord and Tenant, § 118d. Such a covenant runs with the land and the benefit thereof passes upon a transfer of the reversion. Tiffany, Landlord and Tenant, § 118f.
At the time the Milling Company surrendered possession of the building appellant had no interest in the property.
Affirmed. | [
-80,
-19,
-36,
44,
24,
96,
56,
-34,
82,
-95,
39,
87,
-17,
-2,
0,
125,
-9,
109,
-44,
124,
-92,
-73,
2,
98,
-46,
-69,
-61,
-43,
-80,
-49,
-28,
-41,
-116,
53,
-118,
-107,
-62,
-128,
-55,
28,
78,
33,
-71,
108,
93,
64,
48,
58,
64,
15,
81,
-124,
-9,
44,
22,
79,
72,
40,
-19,
45,
-15,
-23,
-94,
13,
111,
23,
32,
6,
-38,
69,
-8,
94,
-120,
-79,
8,
-23,
115,
36,
-58,
116,
7,
-99,
40,
98,
102,
2,
-123,
-17,
-24,
-100,
38,
-50,
29,
-91,
-79,
16,
10,
1,
-65,
-99,
121,
20,
-123,
126,
-20,
-123,
93,
109,
3,
-118,
-12,
-79,
15,
-31,
-98,
3,
-17,
-93,
-80,
113,
-51,
-92,
89,
103,
50,
27,
-57,
-47
] |
Conley Byrd, Justice.
Appellant Danny Jeffries was charged in the Municipal Court of Little Rock on in-formations filed by the prosecuting attorney with four violations of Act 590 of 1971 involving the sale of marijuana. Before a preliminary hearing was had in municipal court, the prosecuting attorney filed informations in the circuit court alleging the same violations. Appellant was found guilty by a jury upon one of the charges. The remaining three charges were consolidated and tried before the court resulting in four nine year sentences running concurrently. For reversal appellant contends:
“I. The Court erred in failing to quash the informa-tions in all cases and remand the case to the Municipal Court for a preliminary hearing.
II. The Court erred in the procedure followed in forming the Jury in this case and in not permitting the Defendant to exercise peremptory challenges prior to the time that the Jury was sworn to try the case.
III. The Court erred in not granting the Appellant a mistrial because of the remarks of a Juror before the entire panel prior to the time the Jury was sworn to try the case.”
POINT NO. I. We have consistently construed our preliminary hearing statutes as directory and not mandatory. In fact we have held that the failure to take one before a magistrate for a preliminary hearing is not reversible error. See Jones v. State, 246 Ark. 1057, 441 S.W. 2d 458 (1969).
Under this point appellant also complains of the expense and unfairness of having to make bail bonds both in the municipal court and the circuit court. In a review on appeal where the chief concern is whether appellant received a fair and impartial trial, we must hold that no reversible error has occurred. Whether the law may otherwise afford a remedy for the supposed wrong is not before us in this proceeding.
POINT NO. II. The record shows that the trial court strictly followed the procedure set out in Ark. Stat. § 43-1924 by requiring the State to first exhaust her challenges to a particular juror and then requiring defendant to exhaust his challenges. After some of the jurors had been accepted by both the State and the appellant, the látter moved to excuse a juror previously accepted. Upon the showing here made the trial court did not abuse its discretion in refusing to permit appellant to then peremptorily challenge the juror. See Allen v. State, 70 Ark. 337, 68 S.W. 28 (1902).
POINT III. During the voir dire of the jury one of the prospective jurors stated:
“Your Honor, May I say something as a juror? I have been a prospective juror on other cases and I have told the Defending Attorney that I feel like I am more prejudice than others in drug cases and I also believe in entrapment, which I feel like most of these cases are, and I also believe that even possession of drugs, of an illegal drug is evidence of guilt. ...”
The juror was promptly dismissed by the court, but appellant contends without citing authority that the trial court should have granted a mistrial. The granting of a mistrial is a rather extreme remedy and is a matter in which the trial court has considerable discretion. Under the circumstances it would appear that the trial court properly denied the motion for a mistrial.
Affirmed. | [
16,
-20,
-11,
28,
10,
64,
26,
-116,
65,
-125,
-10,
115,
-81,
-34,
4,
123,
-85,
91,
116,
105,
-59,
-73,
38,
97,
-94,
-45,
81,
85,
-76,
79,
-2,
-69,
12,
112,
-54,
-43,
102,
74,
-41,
90,
-122,
-119,
-55,
100,
67,
-62,
48,
62,
20,
15,
113,
62,
-93,
45,
52,
-54,
109,
44,
107,
125,
66,
-48,
0,
5,
123,
20,
51,
-90,
-101,
7,
-48,
124,
-44,
57,
9,
-24,
115,
-74,
-126,
84,
105,
27,
44,
96,
98,
0,
13,
-49,
-72,
-120,
22,
63,
-99,
-89,
-37,
1,
75,
12,
-74,
-75,
43,
52,
14,
-2,
109,
-35,
121,
108,
3,
-50,
-112,
-95,
12,
60,
-106,
-45,
-21,
5,
20,
117,
-51,
-30,
92,
31,
113,
-37,
-49,
-42
] |
David Newbern, Justice.
The appellant, Richard Eckl, pleaded guilty to sexual abuse in the first degree and was sentenced to three years probation and a $500 fine. Eckl contends the Trial Court erred by denying a motion to dismiss premised upon alleged violations of the statute of limitations and the speedy trial rule. Because we lack authority to hear Eckl’s appeal from a guilty plea, the appeal is dismissed.
The right of appeal in criminal cases is conferred upon “any person convicted of a misdemeanor or a felony ... in any circuit court of this state” by Arkansas R. Crim. P. 36.1 (1992). The Rule also provides, “Except as provided by Rule 24.3(b) there shall be no appeal from a plea of guilty or nolo contendré [contendere].” Rule 24.3(b) provides:
With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendré [contendere], reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.
Eckl reserved in writing the right to appeal the denial of the pretrial motion to dismiss. The Court, the prosecutor, and the defense counsel all agreed the motion to dismiss would be treated as a motion to suppress under Rule 24.3 (b) so as to preserve Eckl’s right to appeal.
Rule 24.3 (b) applies only to adverse rulings on motions to suppress evidence illegally obtained. See, e.g., Pickett v. State, 301 Ark. 345, 783 S.W.2d 854 (1990); Jenkins v. State, 301 Ark. 20, 781 S.W.2d 461 (1989).
In Jenkins v. State, 301 Ark. 586, 786 S.W.2d 566 (1990), Jenkins pleaded nolo contendré to an offense and reserved the right to appeal the denial of a motion to dismiss based upon a speedy trial violation. We refused to address the speedy trial issue because Jenkins had no right to appeal from a plea of nolo contendere. We reached that decision despite the fact that the Trial Court, the prosecutor, and the defense counsel all agreed that Jenkins could enter a conditional plea and reserve his right to appeal the denial of the motion to dismiss.
Eckl contends a guilty plea waives only non-jurisdictional errors, relying on Garrett v. State, 296 Ark. 550, 759 S.W.2d 23 (1988), and Finley v. State, 295 Ark. 357, 748 S.W.2d 643 (1988) . Eckl argues that because the speedy trial and statute of limitations defenses are jurisdictional, they have not been waived by his plea of guilty.
It is clear that the right to a speedy trial is waived by a guilty plea. Kennedy v. State, 297 Ark. 488, 763 S.W.2d 648 (1989) Hall v. State, 281 Ark. 282, 663 S.W.2d 926 (1984). Eckl is correct, however, in arguing that the statute of limitations is “jurisdictional” in the sense of not being subject to waiver in a criminal case. In Savage v. Hawkins, 239 Ark. 658, 391 S.W.2d 18 (1965), we wrote:
Unlike some of the civil statutes of limitation which are waived unless pleaded, this limitation of prosecution statute (§ 43-1602, supra) is jurisdictional. Under the express wording of the statute that “No person shall be prosecuted, tried and punished for any felony unless an indictment be found within three years after the commission of the offense,” after three years (unless the running of the statute is tolled) a court is without power to try the case.
The jurisdictional nature of the alleged error does not, however, create a basis for direct appeal to this Court. The only possibility for establishing the right of appeal of a judgment of conviction resulting from a guilty plea is pursuant to Rule 24.3(b). As that Rule does not apply in these circumstances, we must dismiss the appeal.
Appeal dismissed. | [
-112,
-22,
-35,
-68,
9,
33,
58,
58,
66,
-57,
-25,
83,
-81,
-40,
0,
127,
-13,
121,
117,
-23,
-33,
-74,
55,
113,
-26,
-69,
-64,
65,
-75,
-54,
-28,
-4,
76,
112,
-22,
-43,
103,
-54,
-127,
88,
-114,
1,
-103,
100,
80,
75,
48,
43,
28,
31,
49,
-66,
-93,
43,
29,
-58,
-119,
104,
91,
-67,
80,
25,
-101,
15,
111,
20,
-93,
52,
-65,
-122,
112,
-6,
92,
57,
0,
-24,
115,
-106,
-106,
84,
75,
-101,
40,
102,
99,
1,
25,
110,
-83,
-87,
30,
29,
-99,
-90,
89,
72,
75,
41,
-73,
-3,
32,
22,
13,
-18,
110,
-115,
93,
108,
-126,
-113,
-76,
-109,
47,
44,
68,
-54,
-21,
-93,
0,
52,
-49,
-60,
92,
87,
59,
-33,
-36,
-75
] |
John A. Fogleman, Justice.
J. T. Davidson, appellant here, sought to cancel a chattel mortgage securing the payment of a $20,000 purchase money balance on an airplane he bought from Texas Aviation Service. As grounds for cancellation, he asserted the contract was usurious. Here he contends the chancery court erred in denying the relief he sought.
There is no dispute about the basic facts. The $20,-000 balance was to be paid in 60 monthly installments. In computing the finance charge, or time price differential, a chart prepared by Financial Publishing Company of Boston, Massachusetts, was used. It provided for an “add on” rate of $5.50 for a 60-month term at an annual actuarial interest rate of 10%, the maximum allowable in Arkansas. The parties stipulated that the application of this factor would result in a finance charge of $5,500 and equal monthly payments of $425 each.
The chancellor specifically found that: The Financial Publishing Company was a reputable financial publishing company; the rate chart was utilized without error or miscalculadon; accepting testimony on behalf of appellant at face value, the maximum overcharge would amount to five cents per month or $3.00 over the five year term; no evidence based upon an independent calculation of the correct interest charge had been made by any witness; the only witness who testified relied solely upon two financial publications, one of which was printed by Financial Publishing Company; appellant had failed to meet his burden of proving the contract usurious; any error made in calculating the interest resulted from a reliance, in good faith, upon a financial table published by a reputable financial publishing company, rather than from an intention to extract a usurious interest charge. Since we are unable to say the chancellor’s findings are clearly against the preponderance of the evidence, we affirm.
Only one witness testified. He was Marion R. Smith, Executive Vice President of the National Bank of Commerce of El Dorado. He stated his familiarity with various documents used for computing interest. He expressed the opinion that the monthly payments should have been $424.95 per month. He used a book prepared by Area Computer Services, Inc., and, by applying the appropriate factor for a 10% interest rate over a five-year term to the principal balance, arrived at a figure of $424,942 which he rounded off at $424.95. He stated that, if he were attempting to make the computation in the bank’s operations, he would use an equal monthly loan amortization table contained in a book published by Financial Publishing Company of Boston, and readily available to all banking institutions and lending agencies. By using that book he also arrived at a monthly payment of $424.95. He stated he was not familiar with the book containing the table or chart used in this case. Upon examination, the only differences he could find between the chart used by appellee and the books he relied upon were the necessity for mathematical calculation to determine the amount of the monthly payment when it was used and the fact that it did not carry seven digits to the right of the decimal point, as did the book to which he first referred.
We agree with appellant that one cannot purge a usurious contract by a retroactive correction or a subsequent disclaimer. We also agree that the validity of a contract attacked for usury does not turn upon the question of whether the alleged usurer has a specific intent to violate the usury laws. The intent required is an intent to receive or reserve a rate of interest that proves to be usurious. Still, we have long recognized that an honest error of calculation will not render a contract usurious. In Garvin v. Linton, 62 Ark. 370, 35 S.W. 430, we said:
There must be an intent to take unlawful interest, to constitute usury. There can be no usury when the amount taken in the contract for interest in excess of 10 per cent per annum was reserved through a mistake or ignorance of the fact that it was in such excess. If the lender, by mistake of fact, by error in calculation, or by inadvertence in the insertion of a date, contracts to receive an illegal rate of interest, “such mistake, error, or inadvertence will not stamp the taint of usury on such engagement, nor cause to be visited upon him, who did not knowingly and intentionally disregard the law in this behalf, the highly penal consequences of an usurious offense.” Moody v. Hawkins, 25 Ark. 191; Bank of De Shon, 41 Ark. 331.
The act of usury will not be presumed, or imputed to the parties, and will not be inferred if the opposite conclusion can be fairly and reasonably reached. Commercial Credit Plan v. Chandler, 218 Ark. 966, 239 S.W. 2d 1009; Cammack v. Runyan Creamery, 175 Ark. 601, 299 S.W. 1023; Briggs v. Steele, 91 Ark. 458, 121 S.W. 754. In Cox v. Darragh Company, 227 Ark. 399, 299 S.W. 2d 193, we held that a mistake in charging an illegal rate of interest would not stamp a transaction with the taint of usury, relying upon the quotation from Garvin v. Linton, supra; Hinton v. Brown, 174 Ark. 1025, 298 S.W. 198; and Temple v. Hamilton, 178 Ark. 355, 11 S. W. 2d 465. We affirmed the judgment of the trial judge, sitting as a jury, holding that evidence that payments were scheduled upon an erroneous calculation made and furnished by a banker, at the request of the creditor, constituted substantial evidence to sustain the holding that usury had not been shown. Later, we reversed a holding by a chancery court that a contract was usurious, on the ground the evidence showed that the excessive finance charge resulted from an honest mistake. Sammons-Pennington Company v. Norton, 241 Ark. 341, 408 S.W. 2d 487. There the president of the creditor corporation had testified that he called upon his finance company to furnish the amount of interest at the maximum legal rate to be added to the debt. The company used "Lake’s Monthly Installment and Interest Tables” to supply the figure, which was stipulated, at the trial, to be excessive by $57 to $60. We said:
It appears that, in determining whether a usurious charge has been made, all attendant circumstances must be taken into consideration. When this is done, we think it is plain that the overcharge in the instant litigation was the result of an error, made in good faith, rather than being based on an intent to violate the usury law.
One of the most important considerations in reaching our result was that the creditor had endeavored to follow our admonition in Holland v. Doan, 228 Ark. 340, 307 S.W. 2d 538, that one who does not know how to figure interest should have his calculations checked by one who is familiar with figuring interest. We also pointed out that an accountant who testified the interest exceeded the legal limit reached his conclusion after computations extending over the better part of a day and that, even in stipulating the excess, no definite figure was used. Even though we did not premise our result upon the fact, we observed that it seemed ridiculous to surmise that anyone would risk the cancellation of a principal debt of $16,000 in order to receive $57 to $60 in excess interest.
This case clearly falls within the pattern of Cox and Sammons-Pennington, rather than of Holland v. Doan, supra, relied upon by appellant. In Holland, the interest charged was 11.95%. No offer to remit the excess was made in that case until after all the evidence in the case had been presented on both sides, and we found no evidence of a mathematical miscalculation. The creditor had used a chart furnished by GMAC and apparently charged interest on the basis of one year, or 52 weeks, when the payments were to be made over only 48 weeks. We said the excessive amount was arrived at because the wrong formula was used in spite of the fact that the creditor must surely have known that a year consisted of 52, not 48 weeks. Here appellee, in its first pleading, offered to refund any overcharge. It used a chart furnished by the same publishing company that distributed a book that would have ordinarily been used by the National Bank of Commerce in El Dorado.
Slight variations in results may be reached by use of other methods. Use of a multiple of a factor from “Lake’s Monthly Installment and Interest Tables” (Sixth Edition) for $1,000 principal at 10% over 60 months would produce a payment of $424.92. This would indicate an excess of $4.80. The real test for usury, i.e., a comparison of the amount the borrower is required to pay with the total amount he could be required to pay at the maximum rate of interest for the term, is made by using the statutory system of applying payments first to interest and the excess to principal. McDougall v. Hachmeister, 184 Ark. 28, 41 S.W. 2d 1088, 76 A.L.R. 1463; Widmer v. J. I. Case Credit Corp., 243 Ark. 149, 419 S.W. 2d 617; Lyttle v. Mathews Investment Company, 193 Ark. 849, 103 S.W. 2d 47; Hare v. General Contract Purchase Corp., 220 Ark 601, 249 S.W. 2d 973; Commercial Credit Plan, Inc. v. Chandler, 218 Ark. 966, 239 S.W. 2d 1009; Ark. Stat. Ann. § 68-606 (Repl. 1957). If that test is used applying monthly payments of $425, the last payment would be slightly over $4.00 more than the legal limit. By use of the means hereinabove mentioned, range of the excess is from $3.00 to $4.80. If it were ridiculous to think one would deliberately risk cancellation of a $16,000 debt to extract an extra $57, it would be ludicrous to think one would risk $20,000 in an effort to collect $3.00 or $4.00 more.
Under all circumstances presented here, we affirm the chancellor’s decree, because we cannot say the conclusions he reached from the facts was not supported by a preponderance of the evidence. | [
54,
-22,
-48,
110,
26,
96,
40,
-118,
-34,
64,
-73,
83,
-25,
-61,
4,
81,
-92,
25,
117,
98,
87,
-77,
39,
104,
-42,
-109,
-39,
-43,
-80,
111,
-28,
-43,
76,
40,
-62,
85,
-26,
75,
-127,
30,
10,
-124,
-87,
101,
-7,
66,
48,
121,
17,
13,
17,
-123,
-13,
46,
25,
75,
105,
14,
-5,
40,
-64,
-16,
-101,
-115,
127,
69,
-111,
117,
-104,
69,
-56,
44,
-112,
56,
9,
-8,
115,
-90,
-58,
116,
37,
-71,
9,
34,
102,
33,
101,
-55,
-36,
-120,
38,
-37,
13,
-90,
-110,
88,
107,
9,
-66,
-99,
126,
20,
13,
-2,
-9,
21,
-99,
109,
83,
-113,
-106,
-93,
-83,
116,
-98,
2,
-17,
7,
48,
112,
-49,
-22,
92,
71,
58,
-101,
-114,
-99
] |
Dunaway, J.
Appellant Monroe filed this suit in the Columbia Chancery Court against appellees, as commissioners of Street Improvement District No. 9 of the City of Magnolia, Arkansas. Validity of the ordinance creating the'District was challenged on two grounds: (1) The description of the boundaries of the district was fatally defective. (2) The directions to the commissioners as to the improvements to be made were so indefinite as to “ clothe the commissioners with a roving commission which would be controlled only by their own discretion,” in violation of the rule laid down in Cox v. Road Imp. Dist. No. 8 of Lonoke County, 118 Ark. 119, 176 S. W. 676.
The cause was submitted upon the pleadings and an agreed statement of facts; and the complaint was dismissed for want of equity. Monroe has appealed.
The first question presented has to do with the adequacy of certain descriptions used in dedimiting the boundaries of the district. In a series of ’more than fifty calls, referring to various streets and lots in the City of Magnolia, there were references to lots in “Blewster-Bennett Addition”, “Clayton Addition” and “Smith and Buffington Addition”, when in fact there are no such additions in the City of Magnolia. The correct descriptions of the properties in question are respectively, “Bennett-Blewster Addition”, “Clayton Subdivision”, and “Buffington and Smith Addition”.
A map showing the boundary lines of District No. 9, prepared by Max A. Melrlburger, Consulting Engineer, was attached as an exhibit to the complaint in this action, and is admitted to be an accurate representation of said boundaries. Since it is admitted that there are no other additions or subdivisions in Magnolia with names similar to the ones here in question, and it was stipulated that the engineer’s map, prepared from the descriptions CQn- tained in the ordinance, accurately represents the boundary lines on the ground, no property owner could have been misled as to the property included in the district by the descriptions used in the ordinance.
One additional call in the description is attacked on the ground that it is indefinite. The ordinance provides that the boundary line shall g*o from a given corner of a definitely described lot, “thence in a westerly direction parallel with, and on the same degree, as East Smith Street to the East Line of North Jackson Street”, and thence along the East Line of North Jackson Street to another designated point. The quoted description is challenged as being indefinite. The map shows this line is laid out by the engineer; and the engineer, Mehlburger, testified (as stipulated) that the line was determined by establishing the distance from the north line of East Smith Street to the corner of the lot which was the beginning point, and measuring like distances at various points along East Smith Street to the intersection of East Smith Street and the east line of North Jackson Street. We think the challenged description called for a clearly ascertainable boundary line.
Appellant’s second contention is that the ordinance delegated to the commissioners a “roving commission” to make whatever improvements they chose. This argument is based on the following language in the ordinance:
“Section 1. There is hereby established an improvement district embracing the following porperty . . . (description given), for the purpose of paving the following streets within the district, to-wit: (a number of streets are named and the points on each are designated where the paving is to begin and end) . . . with such turnouts, side and connecting streets within the district as the Commissioners may deem for the best interest of the district to protect the proposed improvement . . .”.
It is argued that the italicized language authorizes the paving of turnouts as well as side and connecting-streets anywhere in the district that the commissioners may deem necessary. If this be the proper construction of tlie ordinance, it would certainly be void under our decisions in Cox v. Road Improvement Dist. No. 8 of Lonoke County, supra; and Nelson v. Nelson, 154 Ark. 36, 241 S. W. 370.
Appellees contend, liowever, as set out in their answer, that the quoted language of the ordinance reads as it does through clerical error; and that it should be construed as it was intended to read: “with such turnouts to side and connecting streets within the district as the Commissioners may deem for the best interest of the district to protect the proposed improvement . . .”. Appellees argue that the exact extent and type of construction of the turnouts. into side streets which might be necessary to protect the named streets which were to be paved, could not be determined in advance; and that such construction would be a mere detail in furtherance of the main paving project which was set out in detail in the ordinance.
Appellees rely upon the case of Kempner v. Sanders, 155 Ark. 321, 244 S. W. 356, to sustain the validity of the ordinance, if construed in accordance with their contention. That case involved an ordinance which provided “that Street Improvement District No. 303 of the City of Little Rock be and the same is hereby created and established for the purpose of repaving with an asphaltic surface and otherwise improving Main Street . . .; to provide for drainage where necessary, and for the purpose of doing any and all work necessary and incidental to the' said paving and draining, . . .”. In answer to a contention there made, similar to that urged in the case at bar, we said:
“But appellant contends that the clause ‘and otherwise improving’ makes the antecedent language uncertain and makes it doubtful as to the kind of improvement contemplated. But, taking the sentence as a whole, we are convinced that it is not susceptible of such interpretation. The meaning and effect of the conjunction ‘and’ was to indicate that the board of improvement could add to and join with the repaving of Main Street such other and further work as was necessary and incident thereto and included in the repaving’ of Main Street with an asphaltic surface. In other words, the main purpose of the petition was the repaving of Main Street. The words ‘and otherwise improving’ were manifestly added in order to give the hoard of improvement the power to do whatever was necessary to effectuate the main purpose. Certainly these words cannot he interpreted to clothe the hoard ‘with a roving commission controlled only hy their own discretion to make any kind of improvement they desired.’ The only improvement.they could make, as we view the petition, was the repaving of Main Street with an asphaltic surface and the doing of such other work in connection therewith as was incident thereto and essential to making the repavement of Main street a successful and complete improvement, such as was contemplated hy the petition.
“While, to give the council jurisdiction, it is necessary that the preliminary petition describe with certainty the improvement proposed, yet this may he done in general terms, leaving the details and plans of the improvement to bo worked out hy the hoard after the district is established.”
We think the reasoning in the Kempner case is applicable in the instant case, and hold that the construction of the ordinance urged by appellees is correct. From a consideration of the entire ordinance it is clear that the omission of the word “to” was a clerical misprision and should be read into the ordinance. See, Roscoe v. Water & Sewer Imp. Dist., 216 Ark. 109, 224 S. W. 2d, 356. The District may contract for the construction of such turnouts into side or connecting streets, which enter the streets designated for paving as may he necessary to effectuate the main paving project. The District has no authority under the ordinance here questioned for paving streets other than those specifically designated in said ordinance.
The decree is affirmed.
MoFaddin, J., dissents. | [
-12,
-20,
-4,
-18,
122,
-63,
24,
-92,
82,
-79,
-27,
87,
-17,
-53,
12,
125,
-30,
123,
-47,
104,
-11,
-78,
91,
96,
-110,
-73,
-21,
71,
-70,
93,
-28,
-97,
92,
97,
-53,
-35,
-60,
72,
-115,
-36,
-58,
-93,
-119,
108,
25,
-61,
48,
118,
64,
15,
117,
-68,
-14,
-87,
17,
-53,
109,
44,
-47,
41,
81,
58,
-56,
29,
58,
4,
49,
116,
-102,
-125,
106,
24,
-112,
52,
20,
-8,
115,
-90,
-106,
116,
15,
-101,
-120,
96,
102,
0,
41,
-49,
-88,
-116,
6,
-65,
-115,
-90,
-74,
33,
74,
77,
-97,
-107,
124,
86,
-123,
126,
119,
-59,
27,
124,
-85,
-113,
48,
-79,
5,
-80,
-112,
3,
-21,
-61,
-80,
81,
-57,
-30,
85,
68,
19,
-101,
-121,
-15
] |
Per Curiam.
The appellant, Daniel Eugene Remeta, moves to be appointed co-counsel in his appeal and to be allowed to argue orally in person. Those motions are denied. We deny as well his motion to supplement the brief to be filed by his attorney. However, we note that if, after his attorney’s brief is filed, Remeta files a motion demonstrating that his attorney’s brief is inadequate he may be permitted to file a supplemental brief, pro se. See Wade v. State, 288 Ark. 94, 702 S.W.2d 28 (1986).
We also deny, without prejudice, Remeta’s request to be allowed additional pages in the argument portion of his brief. See Pemberton v. State, 291 Ark. 198, 723 S.W.2d 372 (1987).
The brief to be filed by Remeta’s attorney is due in sixty days.
Purtle, J., would grant. | [
117,
-17,
-28,
-98,
-120,
96,
48,
30,
80,
99,
101,
83,
-81,
-49,
20,
121,
-1,
111,
117,
-5,
-42,
-77,
118,
64,
96,
-45,
49,
-41,
-12,
-17,
-12,
-74,
76,
56,
-54,
-43,
70,
74,
-63,
84,
14,
-119,
-103,
-20,
121,
-57,
48,
99,
82,
15,
49,
86,
-13,
44,
28,
-63,
-88,
108,
73,
-76,
-64,
-104,
-97,
-113,
-3,
52,
-95,
-12,
-72,
-126,
88,
47,
28,
57,
16,
-24,
114,
-74,
-126,
20,
107,
-71,
8,
98,
99,
2,
80,
-25,
-104,
-118,
71,
30,
-99,
-90,
-79,
9,
74,
101,
-74,
-65,
61,
20,
15,
122,
-24,
69,
63,
108,
-118,
-114,
-42,
-79,
15,
56,
-124,
-61,
-29,
17,
0,
117,
-60,
-11,
92,
83,
49,
-37,
-114,
-112
] |
Per Curiam.
Appellant, Howard Cockrum, by his attorney, has filed for a rule on the clerk.
His attorney, Larry Dean Kissee, admits that the failure to file the record in time was due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
-80,
-4,
121,
-100,
10,
96,
48,
46,
67,
-55,
-13,
83,
-89,
-53,
20,
121,
83,
111,
21,
123,
-124,
-73,
119,
72,
38,
-13,
-29,
-44,
53,
109,
-2,
87,
78,
-79,
-54,
-107,
70,
-56,
-59,
80,
-122,
5,
25,
-11,
-15,
-128,
48,
57,
-112,
15,
49,
-34,
-93,
42,
30,
71,
-87,
40,
92,
24,
-46,
-7,
-101,
5,
125,
20,
-95,
4,
24,
-123,
-8,
106,
-84,
-71,
0,
-8,
48,
-90,
-122,
116,
15,
57,
5,
110,
102,
49,
-100,
-17,
-96,
-88,
4,
58,
29,
-90,
-69,
104,
105,
-3,
22,
-65,
56,
20,
39,
124,
-29,
-99,
91,
44,
-117,
-49,
-44,
-77,
-97,
112,
-116,
10,
-21,
3,
16,
113,
-49,
-26,
92,
71,
51,
-109,
-34,
-76
] |
Per Curiam.
The respective motions of the Arkansas Association of Counties and the Arkansas Municipal League to file amicus curiae briefs are granted. Each movant shall file its brief within ten (10) days from the date of this per curiam order.
We grant the motions and allow additional time for the filing of these briefs because Supreme Court Rule 20(k) regarding rehearing and amicus briefs is not entirely clear as to when the briefs are to be filed' once permission of this court is granted.
By this order we interpret Rule 20(k) to mean that amici curiae counsel must file briefs in support of or in opposition to rehearing simultaneously with their motions for permission to participate. If the motion and amicus brief support rehearing or are neutral, they must be filed within the time period that the petitioner’s petition and brief are due. If the motion and amicus brief oppose rehearing, they must be filed within the time period that the respondent’s petition and brief are due.
Henceforth, no additional time to file an amicus brief will be granted. Amicus briefs must accompany motions to participate.
Dudley and Newbern, JJ., dissent. | [
116,
-15,
102,
-52,
-120,
97,
48,
-68,
80,
105,
100,
83,
47,
-120,
92,
117,
35,
41,
85,
-21,
-60,
-77,
119,
65,
96,
-13,
115,
-41,
-74,
-1,
-9,
22,
76,
125,
-54,
-107,
-58,
74,
-119,
30,
-26,
9,
-120,
-32,
-15,
78,
48,
99,
90,
31,
53,
86,
-29,
-23,
29,
67,
-84,
108,
-56,
6,
-64,
16,
-113,
-113,
-3,
22,
-95,
-108,
-101,
-124,
80,
44,
12,
53,
10,
-20,
48,
-74,
-106,
116,
107,
-37,
8,
40,
99,
2,
-48,
-25,
24,
-96,
84,
18,
-115,
-26,
-15,
1,
75,
-94,
-74,
-65,
57,
16,
7,
126,
-18,
-43,
126,
108,
-114,
-114,
-60,
-77,
31,
113,
-116,
10,
-21,
21,
16,
39,
-56,
-9,
88,
79,
27,
-37,
-54,
-96
] |
Carleton Harris, Chief Justice.
Appellants, Gloria Davis, Clifton Phillips, and Robert Earl Young, were convicted by the Pulaski County Circuit Court, sitting as a jury, of possessing stolen property with the intent to deprive the true owners thereof, knowing that the property was stolen. Appellants were sentenced to five years imprisonment each, with four years of such sentences suspended. From the judgment so entered, appellants bring this appeal. For reversal, it is first urged that the court erred in overruling appellants’ motion to suppress State’s Exhibits 1, 2, and 3, and second, it is argued that the evidence was not sufficient to support the conviction. We proceed to a discussion of each point.
Exhibit 1 is a Palm Beach men’s suit owned by Dillard Department Stores, which operates Pfeifer-Blass Companies in Arkansas; Exhibit 2 is a ladies’ suit owned by Dillard, and Exhibit 3 is a men’s navy blue leather jacket owned by David’s of Arkansas. Officer Johnny Maack of the Little Rock Police Department made the arrest of the appellants while they were travelling in their automobile, and discovered the aforementioned property in the car; he testified that he turned the property over to Detective Lieutenant George M. Knestrict. Detective Knestrict testified that he stored this property in the Service Division in care of Officer Crump, signing signature cards at the time. He checked the items out from Crump when a hearing was held in municipal court and then checked them back in. He testified that he checked them out again from Officer Crump on the day of the trial, all three being wired together with a tag, and the records reflecting that they had been kept in Crump’s custody; in the courtroom, he gave Exhibit 3 to Mr. Overman, employed by David’s of Arkansas, who identified the coat from the witness stand. The officer stated that he turned the other two items over to Thomas Dupriest in the courtroom, this roan being employed by Dillard. Dupriest identified both the men’s and ladies’ suits as property of Dillard. It is appellants’ contention that turning the property over to the named individuals before it was identified and introduced into evidence represented a break in the chain of evidence, it being asserted that these individuals were not proper custodians. We do not agree that there is merit in this argument. Both store employees testified that they had received the exhibits from Detective Knestrict in the courtroom that same day and they positively identified them as the properties which had been taken. We find no break in the chain; to the contrary, the possession of the items, and the transmission from one person to another is clearly shown. To paraphrase what we said in Fight v. State, 254 Ark. 928, 497 S.W. 2d 262, there is no word of testimony that these items were different from the articles that were taken from the store, and the court did not err in permitting their introduction.
As to the second point, it is first asserted that the State failed to prove that the items were in fact stolen. or that appellants knew they were stolen. We disagree. The testimony by Mr. Dupriest and Mr. Overman details that these items were not sold and were missing from the store; it was pointed out by Dupriest that the stubs on the men’s suit were still in place when the suit was recovered. The ladies’ suit was identified by a different type stub made in the Little Rock warehouse which requires a special tool to insert. Mr. Over-man testified that he observed the leather jacket in the store at David’s about an hour and a half before two of the appellants entered the store; that it was a size 42, and the only one of that size in the store, and he identified it as belonging to that concern. Gary Griffin, an employee of the Dillard store, testified that two of the appellants, Gloria Davis and Clifton Phillips, were occupants of a red Chevrolet Impala with light stripes down the sides, and they pulled up and parked in front of the store just across the street; that he observed the two (subsequently identified) as they got out of the car and came into the store. He said that his attention was attracted because the driver of the automobile, the third appellant, put money in the parking meter, got back in the car, and appeared to be very nervous. The witness stated that the man and woman subsequently came back out of the store and he observed the woman remove some merchandise from under her dress; that the driver put something on the floorboard and the two first mentioned went back into the store, subsequently returned to the car and as it drove away, he observed the woman take something from underneath her dress. She was wearing a purple dress.
Barbara Mueller, likewise an employee of Dillard, also observed the woman and man go into the store and go back to the car, and she said that she saw the woman take something from under her dress, and then return to the store. Subsequently, after getting off from work, she saw these people, together with another man, in their car being questioned by police officers. The officers asked if she could identify a ¿oat, and, as she testified, “It’s from David’s, because I knew what their tickets looked like.” Officer Maack testified that he had received a call that a theft had occurred at the Dillard store and had been given a description of the car and subjects; that he stopped the car occupied by appellants because it conformed to the description and he observed four articles of clothing in the automobile, three of them being State’s Exhibits 1, 2, and 3.
It is also asserted that the State failed to prove that appellants were in possession of the items, and failed to show an intent by appellants to deprive the true owners of possession. We cannot agree that there is merit in this assertion. In Daniels v. State, 168 Ark. 1082, 272 S.W. 833, it was pointed out that the rule has long been maintained by this court that unexplained possession of property recently stolen constitutes sufficient evidence to warrant a conviction and in Boyette v. State, 254 Ark. 320, 493 S.W. 2d 428, we observed that when the defendant was found in possession of stolen merchandise, the court was not required to accept or believe his explanation. See also Bond v. State, 230 Ark. 962, 328 S.W. 2d 369.
All three of the appellants testified, Gloria Davis and Clifton Phillips testifying that they paid Robert Young to take them to town; they admitted being in both stores, but denied taking any clothing. Each said that the items were in the car, but they knew nothing about them. Young testified that when the other two went into Pfeifer-Blass, he got out of the car and talked to a friend, Wesley Johnson; that he had worked with Wesley at Pine Bluff. From the record:
“Well, I get in my car, but when I was standing out there talking to Wesley, well, he had this bag. He said, ‘Say, man, I had to take that from Pine Bluff.’ We got to talking. Me and him work together. ### And then he said, ‘Take this bag. I am going up here to get me some shoes in Phillips.’ He said, ‘You come up there and pick me up, man.’ He said, ‘Make sure you get me in the morning on time,’ he said, ‘so I can talk to Mrs. Isabell.’”
When asked as to the whereabouts of Wesley Johnson, appellant Young replied that he had subsequently been killed.
We think it is apparent from the outline of the State’s testimony herein set out, that there was ample and substantial evidence to support the conviction, and we so find.
Affirmed.
There is no dispute but that appellants Davis and Phillips were in both stores that afternoon.
The fourth piece of clothing was a ladies’ coat with fur around the collar, but the owner had not been determined at the time of trial. | [
112,
-18,
121,
60,
24,
-32,
42,
-70,
66,
-95,
118,
83,
37,
69,
8,
123,
-5,
125,
117,
105,
-36,
-77,
99,
-29,
-78,
-13,
-69,
-43,
-79,
75,
-92,
-44,
76,
112,
-22,
-35,
102,
64,
-57,
80,
-54,
1,
57,
-26,
81,
84,
40,
42,
22,
15,
-27,
-98,
-29,
42,
22,
-53,
73,
44,
75,
61,
80,
58,
-118,
15,
-1,
20,
-77,
36,
-117,
7,
-8,
13,
-100,
49,
0,
104,
115,
-74,
-122,
84,
107,
-117,
12,
96,
98,
0,
9,
-25,
-88,
-128,
38,
127,
-73,
-89,
24,
9,
73,
69,
-106,
-99,
124,
22,
11,
-12,
-10,
93,
93,
108,
5,
-49,
-108,
-95,
41,
40,
-108,
-69,
-37,
1,
112,
112,
-52,
-30,
93,
87,
49,
-101,
-52,
-13
] |
John A. Fogleman, Justice.
This appeal springs from the dismissal of appellants’ complaint on motion of appellee. Appellants operate an insurance agency and appellee is their insurer under an Insurance Agents’ and Brokers’ Errors and Omissions Policy. This action was brought by appellants to recover from appellee the amount of a fire loss allegedly suffered by F. L. and Delma Abernathy which was not covered by fire insurance due to the failure of appellants to renew a policy. Appellee first filed a pleading which it entitled “Motion to Dismiss.” This motion alleged that plaintiffs are not the real parties in interest and that defendant was not a proper party. After a response by appellants, which seems to be more responsive to a brief of appellee in support of its motion than to the motion itself, appellee filed an amendment to its motion, “readopting” the allegations of its original motion, but adding that it was not a proper party defendant for the “additional” reason that the policy involved contained the following clause:
Action Against Company. No action shall lie against the company unless, as a condition precedent the Insured shall have fully complied with all the terms of this policy, nor until the amount of the Insured’s obligation to pay shall have been finally determined either by judgment against the Insured after actual trial or by written agreement of the Insured, the claimant and the company.
Appellants then filed a supplemental response, which also seems to be more in the nature of a brief than a response. The gist of this response is the contention that the appellants, under the circumstances should not have been required to suffer a lawsuit and judgment against them, when their admitted negligence and the damages suffered in the matter were clear, particularly in view of a denial of coverage by appellee. Appellants also claimed to be the real party in interest because they had paid the full amount of the loss to the party to have been insured, $11,700, of which $10,700 was loaned to them by Farmers and Merchants Insurance Company, under the terms of a loan receipt in which their right to sue appellee was recognized. Appellee covered all losses in excess of $1,000.
After the circuit judge had advised counsel for both parties by letter that the motion was sustained, appellants filed a motion to set aside the judgment of dismissal (which had not then been formally entered). The grounds alleged were that appellee’s motion to dismiss was not a proper pleading under the laws of Arkansas and that, if it were treated as a motion for summary judgment, there remained genuine and material issues of fact. Thereafter, the formal order of dismissal was entered. It contained these specific findings:
1. That the plaintiffs are bound by the terms of their written contract with the defendant.
2. That the plaintiffs are bound by their contract and by the law of this state and are precluded from bringing a direct action against this defendant.
3. That defendant, Northwestern National Insurance Company is not a proper party defendant in this cause.
The rules of pleading in this state are appropriately liberal and this court has, at least since the adoption of the Civil Code, regarded substance rather than form. In this case, however, the true nature of the pleadings seems well obscured by their titles and the treatment given them by the parties. Whatever they are, we are convinced that the order of dismissal was at least premature.
A motion to dismiss upon jurisdictional grounds or for want of venue has been recognized by this court. See Hoggard & Sons v. Russell Burial Assn., 255 Ark. 576, 501 S.W. 2d 613; Arkansas-Louisiana Highway Improvement District v. Douglas-Gould and Star City Road Improvement District, 138 Ark. 162, 210 S.W. 150. We have also approved its use to obtain dismissal for abuse of process. Heard v. McCabe, 130 Ark. 185, 196 S.W. 917. When based upon the assertion that the complaint fails to state a cause of action, it is tantamount to a general demurrer. Meeks v. Arkansas Power & Light Co., 147 Ark. 232, 227 S.W. 405. Such a pleading is not described in the Civil Code, or amendments thereto, and our attention has not been called to any case in which it has been recognized for other purposes, except, of course, for the motion to dismiss a chancery case for insufficiency of the evidence on behalf of a plaintiff, provided for by Ark. Stat. Ann. § 27-1729 (Repl. 1962). Ark. Stat. Ann. § 27-1162 (Repl. 1962), relied upon by appellee does not authorize any pleading. It simply authorizes hearings on pretrial motions outside the county in which an action is pending.
This court has always determined the nature and function of a pleading by its content, and sometimes even by the manner in which it is treated by the parties and the trial court, rather than by its title. See Hoggard & Sons v. Russell Burial Assn., supra. When we view appellee’s first motion in this case, it appears that it should be characterized as a demurrer for defect of parties, authorized by Ark. Stat. Ann. § 27-1115 (Repl. 1962). Appellee says in its brief here that the court correctly granted its motion as a demurrer for defect of parties. In order for such a demurrer to be sustained, the defect must appear upon the face of the complaint. Hoggard & Sons v. Russell Burial Assn., supra. See also, McCallister’s Admr. v. Savings Bank of Louisville, 80 Ky. 684 (1883), construing the code section we adopted and now appearing as Ark. Stat. Ann. § 27-1115; Cleveland v. Biggers, 163 Ark. 377, 260 S.W. 432.
There is nothing in the complaint to suggest that the plaintiffs are not the real parties in interest, i.e., the sole owner of the alleged cause of action against appel-lee. Even though the insurance contract is the basis of appellants’ cause of action, and is described and identified in the complaint, it was not made an exhibit thereto. The terms relied upon by appellee are nowhere mentioned in the complaint. There is nothing in the complaint to indicate that appellee is not the only possible defendant in the cause of action alleged by appellants. The first motion could not properly have been sustained as a demurrer.
The amendment to this motion, by importing grounds based upon facts not appearing on the face of the plead ing, seems to have made the pleading a “speaking demurrer.” Hoggard & Sons v. Russell Burial Assn., supra. Such a pleading is not only not recognized but is abhorred, eschewed and rejected by the courts of Arkansas. Hoggard & Sons v. Russell Burial Assn., supra; Jones v. Capers, 231 Ark. 870, 333 S.W. 2d 242; Rider v. McElroy, 194 Ark. 1106, 110 S.W. 2d 492. It has only been given consideration when it could be treated as a motion to dismiss for want of jurisdiction. Hoggard & Sons v. Russell Burial Assn., supra; Askew v. Murdock Acceptance Corporation, 225 Ark. 68, 279 S.W. 2d 557.
Somewhere in the course of the proceedings, however, appellee resorted to a discovery deposition of appellant Jim Randall. Nothing in that deposition showed that the court did not have jurisdiction of the cause of action. We do not agree with appellee that it was proper to introduce proof on the question of a defect of parties on demurrer. Although appellee nowhere suggests that its pleadings should be considered as a general demurrer, evidence could not be offered in that case either. This leaves the motion for summary judgment as a basis of treatment of the motion which could result in a dismissal of the action. If so, its character as such was so well veiled that an adverse party might well be excused for not responding to it as such. Appellants suggest that possibility, but appellee does not so treat it.
Appellee, as a matter of fact, states in its brief that the trial court correctly construed its initial motion as the equivalent of a demurrer for defect of parties. It went on to submit that the court correctly allowed the motion to be amended so as to allow proof to be taken on the question regarding a defect of parties and properly dismissed the complaint on that basis. While we do not agree, we should affirm this order, if we could sustain it on any ground. Reamey v. Watt, 240 Ark. 893, 403 S.W. 2d 102; Reeves v. Arkansas Louisiana Gas Co., 239 Ark. 646, 391 S.W. 2d 13; Polk v. Stephens, 126 Ark. 159, 189 S.W. 837. This being so, and in view of the statement in the order of dismissal that the court had considered the depostion of Randall, we have considered the motion as one foy summary judgment and find that we cannot sustain the order as the granting of such a motion.
In order for summary judgment to be justified, there must have been no genuine issue of material fact. All doubts about the question are resolved and all inferences drawn against the moving party. Moon v. Sperry & Hutchinson Co., 250 Ark. 453, 465 S.W. 2d 330; Evers v. Guaranty Inv. Co., 244 Ark. 925, 428 S.W. 2d 68. The evidence must be viewed in the light most favorable to the party against whom the judgment would go. Wilson v. McDaniel, 247 Ark. 1036, 449 S.W. 2d 944. If fair-minded men might differ about the conclusion to be drawn or if inconsistent hypotheses might reasonably be drawn from the supporting testimony, a summary judgment should be denied. Mason v. Funderburk, 247 Ark. 521, 446 S.W. 2d 543; Harvey v. Shaver, 247 Ark. 92, 444 S.W. 2d 256. If there is any doubt whatever, a summary judgment should be denied. Bull v. Manning, 245 Ark. 552, 433 S.W. 2d 145.
The deposition of Randall, the only possible support for a motion for summary judgment in this case, rather than clearly demonstrating the absence of such an issue, tends to indicate that there are genuine issues of material fact. Randall revealed that:
His agency, having placed homeowner’s insurance on the Abernathy property with Farmers and Merchants Insurance Company, a subsidiary of the Silvey Companies for six years, sent renewal notices to the Abernathys and had received a renewal premium from them prior to July 24, 1971, the renewal date. The renewal statement was then placed in the Abernathy file in the agency office instead of being processed for a renewal policy in the usual manner. The agency did not check the “account current” listing furnished it by Silvey from which it could have detected that the insurance company had dropped the Abernathy policy. As a result, the premium was never remitted to any insurance company, and no policy was ever issued. There was no reason to believe that the Abernathy policy would not have been renewed routinely by Farmers and Merchants. The Abernathy dwelling house was later destroyed by fire. On the date of the fire, Randall notified both Farmers and Merchants and Northwestern. When the Abernathys asserted a claim, Randall notified Silvey, who advised him to call his errors and omissions carrier. When Randall did so, appellee’s claims manager, Ken Rhinehart, stated that, in his opinion, appellants had no claim against appellee and that they would have to collect from Silvey. A few weeks later, Randall again talked to Rhine-hart who told him that Northwestern could only help if appellants and the Abernathys joined in a suit against the Silvey Company and that Northwestern would defend appellants against any liability they incurred. Randall objected to involving his customers in a lawsuit. According to Rhinehart, the only alternative was for Silvey to pay the claim and file suit against Northwestern to recover. Subsequently, Silvey officials agreed to advance $10,700 of the $11,-700 loss on the basis of a loan receipt executed by appellants. By this receipt, appellants acknowledged receipt of the sum advanced by Farmers and Merchants, repayable only from any net recovery made from appellee. This receipt contained the following clause:
As security for repayment of the loan I hereby appoint FARMERS AND MERCHANTS INSURANCE COMPANY, its officers and agents, as attorneys in fact, with irrevocable power to collect, compromise, or abandon any such claim and to institute, prosecute, compromise or withdraw, in may [my] name but at the expense of FARMERS AND MERCHANTS INSURANCE COMPANY, any legal proceedings which it may deem necessary or proper to carry into effect the purpose of this agreement.
Thereafter, Northwestern canceled the errors and omissions policy, charging appellants with entering into an agreement that was neither ethical nor legal.
We find no basis for dismissing the complaint as an unauthorized “direct action” by appellants against their “errors and omissions” insurer. Any action by the insured against the insurer on an indemity policy is, of course, a direct action. But appellee contends that, because there is no statute authorizing such an action, the motion was properly sustained. The action is not prohibited by law, and we see no reason why special statutory authority for such a suit is required. The basic issue is whether appellee breached its contract of insurance with appellants.
We cannot agree with appellee that the statement of Rhinehart must be taken, not as a denial of coverage under the policy, but as a denial of appellants’ liability to the Abernathys. We deem Randall’s testimony on this point to be subject to a construction contrary to that given it by appellee, so that it would raise a question of fact. At least, we cannot say that the matter is free from doubt.
Appellee says appellants were not guilty of any negligence that proximately caused any damages to the customer of appellants. We see no merit in appellee’s contention that there was no liability to the Abernathys on the part of appellants. See Martin v. Langley, 252 Ark. 121, 477 S.W. 2d 473; Derby v. Blankenship, 217 Ark. 272, 230 S.W. 2d 481; Lawrence v. Francis, 223 Ark. 584, 267 S.W. 2d 306.
The policy exhibited to Randall’s deposition contains the usual clauses prohibiting the insured from making any payment or assuming any obligation, except at its own cost. It also permits recovery from ap-pellee after a claimant has secured a judgment against the insured. Still, there are circumstances other than the insurer’s refusal to defend an action actually filed under which the insured is entitled to recover from its insurer after having made a settlement with a claimant in spite of such clauses. Home Indemnity Co. v. Snowden, 223 Ark. 64, 264 S.W. 2d 642; St. Paul Fire & Marine Insurance Co. v. Crittenden Abstract & Title Co., 255 Ark. 706, 502 S.W. 2d 100; Carter v. Aetna Casualty & Surety Co., 473 F. 2d 1071 (8th Cir. 1973); L. A. Tucker Truck Lines v. Baltimore American Ins. Co., 97 F. 2d 801 (8th Cir. 1938); Isadore Rosen & Sons, Inc. v. Security Mutual Ins. Co., 31 N.Y. 2d 343, 291 N.E. 2d 380 (1972). Randall’s testimony would at least raise an issue of fact as to whether appellee, by its inac tion in failing to investigate and settle the claim of the Aber-nathys repudiated the contract or had waived the provisions on which it relies. And there is no certainty that the amount of the loss was 111,700, although it may be that this amount would be fixed under the valued policy law, and there may be a question of fact on this point. The complaint does not show appellants’ reasons for making the payment to the Aber-nathys, but Randall’s deposition is adequate to show that when issue is properly joined there could be a question of fact as to appellants’justification in doing so. If appellee’s motion was for summary judgment (and appellee does not contend that it was) the burden was on it to show beyond doubt that no question of. fact existed. Certainly, the existence of a question of fact is not foreclosed by Randall’s deposition. Appellee did not clearly demonstrate that it acted in good faith in failing to recognize the liability of appellants to Abernathy.
There remains the remote possibility that appellee’s pleading could have been treated as a motion to dismiss for want of necessary parties under the third subdivision of Ark. Stat. Ann. § 27-1405 (Repl. 1962), although the court’s order seems to preclude that possibility, and it seems to have been indicated in our decisions that this statute is to be invoked at trial. See Duval v. Mayson, 23 Ark. 30; Powell v. Massey-Herndon, 69 Ark. 79, 62 S.W. 66. Be that as it may, such a motion would fail unless Farmers and Merchants is the real party in interest or is a necessary party plaintiff. But so far as this record discloses, Farmers and Merchants has really only loaned appellants money to be used in satisfying the Abernathys, with the understanding that it is to be repaid only from appellants’ recovery from appellee, if any. While we do not consider Farmers and Merchants to be an insurer of appellants in any sense of the word, their position, as far as this record discloses, is somewhat analogous to that of the insurer which pays a part of its insured’s loss. If that analogy is drawn, appellants remain the real parties in interest and Farmers and Merchants is not a necessary party to the action. Limberg v. Lutz, 236 Ark. 264, 365 S.W. 2d 713; Washington Fire & Marine Ins. Co. v. Hammett, 237 Ark. 954, 377 S.W. 2d 811; McGeorge Contracting Co. v. Mizell, 216 Ark. 509, 226 S. W. 2d 566. By the same analogy, Farmers and Merchants was entitled, under the loan receipt, to prosecute the action in the name of appellants. Graysonia, N. & A. R. Co. v. Newberger Cotton Co., 170 Ark. 1039, 282 S.W. 975; Ry. Co. v. Fire Assn., 60 Ark. 325, 30 S.W. 350, 28 L.R.A. 83; Dixey v. Federal Compress & Warehouse Co., 132 F. 2d 275 (8th Cir. 1942).
The order of dismissal is reversed and the cause remanded for further proceedings. | [
-104,
124,
-24,
-83,
-119,
97,
96,
-86,
-41,
-29,
47,
83,
-17,
-30,
-112,
53,
-2,
57,
-27,
74,
-42,
-93,
23,
34,
-42,
-101,
-15,
69,
-95,
74,
-26,
-33,
76,
56,
-114,
-43,
70,
-120,
-59,
24,
78,
10,
-104,
-20,
-103,
-50,
48,
-5,
86,
67,
21,
-122,
-13,
40,
-103,
-49,
73,
46,
123,
-71,
-31,
56,
-118,
13,
127,
0,
49,
117,
-102,
3,
-8,
10,
-112,
-79,
17,
-52,
114,
-90,
-58,
52,
75,
-103,
72,
102,
101,
48,
-107,
-19,
-84,
8,
38,
10,
31,
-28,
-110,
9,
107,
11,
-73,
-103,
116,
4,
7,
124,
-4,
-100,
29,
44,
3,
-117,
-108,
-15,
-81,
114,
24,
-125,
-26,
-105,
54,
117,
-55,
-24,
92,
71,
60,
59,
78,
-113
] |
Kirby, J.,
(after stating the facts). Appellants contend that Flanagin had breached the contract in failing to make payments before removal of the timber from the lands in accordance with its terms, and that the undisputed testimony showed such to be the case, and that the court erred in not directing a verdict in their favor.
It is undisputed that appellee failed to pay for the timber cut before its removal from the land every two weeks in accordance with the terms of the contract, his own letter introduced in evidence admitting that such was the fact and arguing it would be to the advantage of appellants to allow him to continue to perform the con tract. He did not contend, however, that he was given permission to proceed after appellants’ agent stopped him from cutting the timber, but only insists that, because of the agreement with the agent about the acceptance of the scale at the mill for timber cut, appellants had waived the provision for the payment of the timber every two weeks and before its removal from the ground.
The burden was upon him, of course, to show that an agent with authority to do so had done some act that would amount to a waiver of performance of this condition by appellants. The only authority claimed for the agent was that expressly given in the written contract made with appellee, and a fair construction of it shows only authority on the part of said agent as attorney in fact to represent appellants under the contract and require all things done which either of appellants could require done if personally present, expressly authorizing him to supervise the cutting of the timber and to cause the cutting and removal to be stopped at any time there might be a breach thereof. It was the duty of appellee, in dealing with Bullock, to ascertain the extent of his authority, a limited one by the terms of the contract appointing him. He was acquainted with all the provisions of the contract and necessarily knew that the agent’s authority could not be extended by any of his declarations or his conduct in the performance of his duties, unless such conduct was shown to be known to the principals, and that they had acquiesced therein by receiving benefits therefrom. It is not even claimed that appellants had acquiesced in any conduct of the agent’s that could be construed as a waiver of the terms of the contract or that they had received benefit therefrom; and he was bound to know the extent of the agent’s .authority created by the written contract to which he was a party, and that he could only insist upon the performance of the contract, that it was without the agent’s authority to waive any of its terms, and the court erred in not so instructing the jury. Korey v. East Ark. Lbr. Co., 181 Ark. 478, 26 S. W. (2d) 896 ; American Agricultural Chemical Co. v. Bond, 177 Ark. 168, 6 S. W. (2d) 2 ; U. S. Bedding Co. v. Andre, 105 Ark. 114, 150 S. W. 413, 41 L. R. A. (N. S.) 1019, Ann. Cas. 1914D, 800 ; Welch y. McKinzey, 66 Ark. 251, 50 S. W. 505 ; American Southern Trust Co. v. McKee, 173 Ark. 147, 293 S. W. 50.
As already stated, the undisputed testimony shows that appellee breached the contract by failure to pay for the timber cut in accordance with its terms, and, having done so, was not entitled, of course, to a recovery of damages for the acts of appellants in denying him the right to proceed further in its performance thereafter, and the court erred in not directing a verdict in appellants’ favor as requested.
The judgment is accordingly reversed, and the cause, appearing to have been fully developed, will be dismissed. It is so ordered. | [
16,
120,
-40,
-115,
-102,
104,
56,
-70,
121,
-5,
39,
87,
-17,
-45,
28,
98,
-25,
125,
-48,
42,
-44,
-94,
59,
96,
-14,
-45,
113,
-60,
-79,
108,
-12,
93,
76,
48,
-62,
-43,
-26,
-55,
-51,
-40,
-124,
-127,
40,
-29,
-7,
64,
48,
31,
124,
79,
113,
-114,
115,
46,
21,
-57,
-88,
62,
105,
37,
-48,
104,
-66,
-115,
127,
8,
-79,
6,
-100,
3,
-24,
44,
-112,
49,
11,
-56,
115,
-76,
-126,
-4,
13,
-119,
8,
102,
102,
32,
105,
-83,
-52,
-40,
47,
-2,
-113,
-94,
-47,
8,
3,
73,
-90,
-107,
-40,
16,
54,
126,
-30,
29,
29,
104,
11,
-125,
-44,
-93,
-97,
-4,
-108,
19,
-17,
6,
19,
112,
-49,
-82,
92,
99,
49,
27,
-98,
-101
] |
John A. Fogleman, Justice.
Appellant urges two points for reversal of a decree of divorce granted her husband on the ground of desertion. Appelleé filed his complaint on the 12th of January, 1973. Appellant filed a motion to dismiss, alleging that the Chancery Court of Union County had, by decree entered after a hearing held December 14, 1972, awarded her separate mainten- anee on her petition filed August 6, 1971, to which appellee had responded by answer and later by an amended answer and cross-complaint in which he alleged that he was entitled to an absolute divorce from appellant on the ground of personal indignities. It was also alleged in the motion that appellee’s cross-complaint for divorce in that suit was dismissed, that no appeal was taken from the decree and that the complaint in the present action should be dismissed because the issues were res judicata. The motion was denied and, after trial, the decree which is the subject of this appeal was entered.
Appellant asserts two points for reversal, i.e., error in denial of her motion to dismiss and error in finding that appellant had deserted appellee and remained away from his home without reasonable cause. We find no reversible error.
At the outset, we should say that res judicata is an affirmative defense, ordinarily to be raised only by answer. Narisi v. Narisi, 233 Ark. 525, 345 S.W. 2d 620; Southern Farmers Association v. Wyatt, 234 Ark. 649, 353 S.W. 2d 531. It cannot properly be raised by motion to dismiss. Southern Farmers Association v. Wyatt, supra. In any pleading raising the defense the facts upon which the plea is based must be set out. Widmer v. Wood, 243 Ark. 617, 421 S.W. 2d 872. The burden of proving this defense was upon appellant. Southern Farmers Association v. Wyatt, supra. Assuming that the defense could have been asserted by motion, it was incumbent upon appellant to produce evidence sustaining the allegations of her motion, in order to prevail on that defense. There is absolutely no evidence abstracted by either party which makes the required showing. The previous action is not mentioned in any way, other than in appellant’s motion, even though it is conceded by appellee that they were separated from August to December in 1971, and that there was a divorce suit between the parties, which was heard on December 14, 1971. The chancery court could not take judicial notice of a prior proceeding between the parties, even though it was in the same court. Lewis v. Lewis, 255 Ark. 583, 502 S. W. 2d 505 It must appear, either from the record or extrinsic evidence that the particular matter involved was raised and determined. Fisher v. Fisher, 237 Ark. 321, 372 S.W. 2d 612. Unless, of course, the matter was necessarily within the issues presented and might have been litigated in the prior action. Arkansas State Highway Commission v. Staples, 239 Ark. 290, 389 S.W. 2d 432. Otherwise, the action cannot be dismissed on the ground of res judicata. Southern Farmers Association v. Wyatt, supra. A judgment relied upon as a bar cannot be considered here unless it was introduced in evidence. Denton v. Young, 145 Ark. 147, 223 S.W. 380.
Appellant concedes that res judicata applies in divorce cases only when the second suit is on the same cause of action as the first, but we are unable to say that this is the case or even that the decree in any prior case between these parties was based upon any particular finding on any issue, even the cause of the separation. Consequently, we cannot apply the rationale of the case of McKay v. McKay, 172 Ark. 918, 290 S.W. 951, wherein it was held that a decree denying a wife’s prayer for divorce for cruel and inhuman treatment was conclusive, in a later suit by her on the ground of desertion, as to the question whether she had cause for leaving her husband and their home.
We do not overlook the possibility that the defense of res judicata might be established on a motion for summary judgment. But we cannot say that the pleading here was sufficiently identified as such a motion to require appellee to respond to it as such. Even if it were, and it could be said that it now appeared to us that there remained no genuine issue of material fact on the question, appellate relief from the denial of a summary judgment cannot be had, after trial on the merits. Williams v. Varner, 253 Ark. 412, 486 S.W. 2d 79; Deposit Guaranty National Bank v. River Valley Company, Inc., 247 Ark. 226, 444 S.W. 2d 880; American Physicians Insurance Co. v. Hruska, 244 Ark. 1176, 428 S.W. 2d 622.
Little need be said about the second point. Even though there was evidence tending to show that after a brief reconciliation of the parties, whether permanent and unconditional as asserted by appellee, or temporary and conditional in accord with appellant’s version, we cannot say that the chancellor’s finding that the departure of appellant from appellee and his home on Decern- ber 18, 1971, was not justified by the conduct of appellee, was clearly against the preponderance of the evidence. Ap-pellee testified that the parties settled their differences, put them in the past and started a new life under new conditions, but that appellant left without any reason. He specifically denied having struck or threatened her in December 1971, or having made any accusations about her having had affairs with other men, as he had previously done. Mrs. Hurst equivocated in her testimony to some extent. She said they had a quarrel on December 18 and thát she left after he had dragged her out of her automobile onto the driveway where they fought. She admitted, however, that after they got up he “got awful sweet” to the extent that she felt compelled to go in the house and have sexual relations with him. She testified later that they had an argument in the driveway on that occasion, and that she then had to go into the house and have sexual relations with him in order to get away from the home. She did admit that appellee did not physically force her to have sexual relations with him, but that she was afraid that he would not let her leave if she did not.
Since there is no reversible error, the decree is affirmed.
Harris, C.J., not participating. | [
-112,
-20,
-11,
94,
-118,
32,
34,
-84,
-64,
-95,
119,
115,
-19,
74,
8,
125,
-22,
13,
85,
57,
-59,
-73,
95,
97,
114,
-109,
-47,
-43,
-76,
79,
-27,
-43,
76,
-8,
-54,
-43,
68,
-56,
-121,
28,
-58,
-116,
-117,
-20,
-7,
-62,
48,
45,
86,
11,
113,
-74,
-29,
43,
57,
-57,
104,
44,
95,
41,
70,
56,
-122,
13,
95,
8,
-79,
54,
-106,
-123,
88,
42,
-112,
52,
1,
-54,
51,
-106,
-122,
84,
67,
-71,
8,
112,
103,
3,
-43,
-17,
-104,
-104,
78,
58,
-115,
-90,
80,
8,
75,
40,
-74,
-99,
85,
-96,
15,
-8,
111,
-99,
53,
108,
10,
-53,
-106,
-75,
-99,
124,
-98,
3,
-29,
-15,
20,
117,
-59,
-29,
92,
119,
27,
-69,
-50,
-98
] |
Hart, >C. J.,
(after stating the facts). The controlling question in the case is, did the applicant comply with the essential conditions contained in the policy and the application therefor upon which the insurance company’s liability depended? In this view .of the matter, it is immaterial to determine whether the policy was dated March 4, 1929, or was issued February 22, 1929, as contended by counsel for the plaintiff. The reason is that the application, which we have copied in our statement of facts, provides that no liability shall exist against the company unless the policy is delivered to the applicant while he is alive and in good health. In other words, the policy contained an express provision that it was not to become effective unless it was delivered while the applicant was in good health.
In Peebles v. Eminent Household of Columbian Woodmen, 111 Ark. 435, 164 S. W. 296, it was held that provisions in an insurance contract of a mutual benefit association stipulating that there was no liability for benefits on the part of the insurance company unless the certificate or policy was delivered to the applicant while in good health was a condition precedent which might be waived by the insurer, since the provision is made for the company’s benefit. That this is in accordance with the general rule on the subject, see case note to 5 A. L. R. 1575.
We can perceive no good reason why this rule should not be applied in the present case. The parties have agreed that the question of waiver of the condition in question on the part of the company is not in the case. Indeed, counsel for the plaintiff rely upon the case cited above and seek a recovery in this case upon the question of estoppel on the part of the insurance company. We are of the opinion that the facts and circumstances do not furnish any substantial evidence upon which to predicate estoppel on the part of the company. By invoking the doctrine of estoppel, counsel for the plaintiff seek to set aside or annul a condition precedent in the policy upon which liability of the defendant company is based. It seems to us that to hold the policy good under the circumstances of this case would be to abrogate and set aside the contract of insurance and to hold the company liable for the payment of a policy against the very terms of the contract.
The only escape from this conclusion is estoppel. Without knowledge, there can be no estoppel. It is not claimed that the applicant was not fatally sick at the time the policy was delivered on the 4th day of March, 1929. According to the plaintiff’s own testimony, Edward Lacey had been carried to the hospital in the city of St. Louis on the 27th day of February, 1929, ill with pneumonia, and never got out of his bed from that date until his death on the 14th day of March following. It is not claimed, and the record does not show, that the company was informed of his illness or the serious character of it. This case is totally unlike the Peebles case cited above and relied upon by plaintiff, because in that case the company accepted premiums from the insured for a period of two years' after the clerk of the local lodge had delivered the policy to the applicant. The court said that it would be manifestly unjust to permit an insurance company with full possession of facts that it intended to rely on to defeat the collection of the policy when it matured, to continue to demand and receive from the insured premiums as if there was a binding and valid contract of insurance.
Here the payment of premiums was small and inconsequential, and the time from the date of the delivery of the policy to the death of the applicant was too short for any legitimate inference that the company had es-topped itself from relying upon the condition precedent in the policy. It is not claimed that there was any direct knowledge on the part of the company that the appellant was fatally ill when the policy was delivered, and there is no acceptance of premiums for any length of time after that. The time between when the policy was delivered and the death of the applicant from the disease with which he was suffering at the time the policy was delivered was entirely too short to support any legitimate inference upon which an estoppel could be predicated. As sustaining this view, we cite the following cases: Cable v. United States Life Ins. Co., 111 Fed. 19 ; Piedmont and Arlington Life Ins. Co. v. Ewing, 92 U. S. 377 ; Insurance Company v. Wolff, 95 U. S. 326 ; Langstaff v. Metropolitan Life Ins. Co., 69 N. J. Law 54, 54 Atl. 518 ; Reese v. Fidelity Mutual Life Association, 111 Ga. 482, 36 S. E. 637 ; Thompson v. Travelers Insurance Co., 13 N. D. 444, 101 N. W. 900; and Howell v. Prudential Insurance Co., 153 Ala. 611, 45 So. 208.
Therefore, the judgment will be reversed; and, in as much as the case seems to have been fully developed, the complaint will be dismissed here. It is so ordered. | [
-76,
124,
-36,
-83,
10,
96,
58,
90,
95,
-62,
39,
81,
-1,
-45,
-124,
109,
-3,
61,
97,
16,
-43,
-93,
23,
66,
-42,
-105,
-13,
-59,
-79,
121,
-25,
77,
68,
32,
-126,
-43,
-30,
-54,
-63,
-104,
-126,
-122,
-72,
-27,
-7,
81,
48,
75,
-16,
75,
112,
-33,
-13,
46,
25,
-57,
41,
40,
105,
37,
-32,
-32,
-98,
5,
109,
4,
49,
4,
-72,
103,
-54,
13,
-104,
-111,
25,
-24,
112,
-74,
-106,
52,
47,
41,
1,
98,
99,
32,
1,
-17,
-36,
-104,
46,
-102,
15,
-90,
-112,
88,
-85,
9,
-73,
31,
116,
4,
-89,
110,
-28,
28,
31,
33,
17,
-113,
-42,
-9,
-33,
-32,
30,
-121,
-26,
33,
-93,
117,
-50,
-94,
92,
65,
114,
19,
-106,
-102
] |
Smith, J.
The plaintiffs, Price, Bird and Irwin— appellees here—sustained injuries as a result of a collision of an automobile in which they were riding as guests with one of defendant’s coal trains at a highway grade crossing on State Highway No. 71 in Sebastian County, which is the principal north and south highway in the county and carries a large amount of traffic.
The collision occurred about 7:35 p. m. on October 8, 1929, and the facts in relation thereto, stated in the light most favorable to appellees, are as follows: An engine had switched a train of thirty coal cars at Jenny Lind, a village on appellant’s railroad. The cars were being pushed across the highway on a spur or industrial track owned by the Western Coal & Mining Company and leading to its mines. The conductor and two brakemen, all with lighted lanterns, were riding in the front or lead car. The train was moving west, and as it came into the highway it was discovered that the switch was lined for track No. 3, the switch being about twenty feet west of the highway. The conductor saw the switch lined for track No. 3, and, as he did not wish to enter.upon that track, he gave a stop signal, but before the signal was executed the train had moved about a half car length on track No. 3. A back-up signal was given, and the train began moving to the east, and when it had moved about ten or fifteen feet the automobile in which appellees were riding and which was approaching the train from the south ran into the last, or the next to the last, car in the train.
It was alleged that the railroad company was negligent in three respects: First, that there was no signboard at the crossing as required by § 8488, C. & M. Digest; second, that the train was unlighted; and, third, that there was a failure to keep an efficient lookout.
There was no signboard at the crossing as required by § 8488, 'C. & M. Digest. This section provides that every railroad shall cause boards to be placed, well supported by posts or otherwise, and constantly maintained, across each public road or street, where the same is crossed by the railroad, on the same level, and that said boards shall be elevated so as not to obstruct travel and to be easily seen by travelers, “and on each side of the said boards shall be printed, in capital letters of at least the size of nine inches each, the words, ‘Railroad Crossing—look out for the cars while, the bell rings or the whistle sounds’.” After the collision occurred out of which this litigation arose, the railroad company erected a signboard conforming to the statute, but placed it on the north side of the track.
The statute does not require signboards to be placed upon both sides of the track, nor does it provide upon which side one shall be placed. Presumptively, it would be placed where its visibility would be greatest. The purpose of the statute was to give notice to the traveler of the presence of a railroad track. The silent letters of the sign could not advise that a train was already on the crossing or that one was approaching. It could only remind the traveler that there was present a railroad track, along which trains ran, and to look out for them “while the bell rings or the whistle sounds,” so that no attempt would be made to cross the track after the bell had rung or the whistle had sounded until the approaching train had passed.
It was said in the case of St. Louis & S. F. R. R. Co. v. Ferrell, 84 Ark. 270, 105 S. W. 263, that: “The object of signals is to notify people of the coming of the train. Where they have that knowledge otherwise, signals cease to be factors.” Here the train had the crossing blocked when the automobile ran into it, and while it is insisted that the signboard would have had greater visibility than the moving train of thirty cars, we think that does not make the absence of the signboard the proximate cause of the collision. The signboard erected after the collision complied with the statute, although it was on the north side of the track, so that, if it had been where it now is, the train would have been between it and appellees as they approached the track. There was testimony that the signboard could be seen further than a coal car could be standing on the crossing, but it is mere conjecture that one driving from the south who did not see the train of cars would have seen the signboard, which, had it been there, would have been on the opposite side of the train from appellees. We conclude therefore that the absence of the signboard was not the proximate cause of the injury.
Many cases have defined the duty of railroads to maintain efficient lookouts in the operation of trains, but that duty was discharged by the conductor and the two brakemen who- rode in the front or lead car with their lanterns as the train slowly ran over the crossing. The wrong switch had been lined, and to prevent the train going in on the wrong track it was necessary to back the train to a point where the lead car would be east of the switch so that the switch could be thrown. While this movement of the train was being executed, the conductor and the two brakemen got off the train on the north side, and before the movement was completed the automobile ran into the train.
The testimony is to the effect that the movements of the train which have been detailed blocked the crossing for a period of from three to five minutes. This was, of course, an approximation as to the elapsed time, but there is no testimony whatever that there was any delay in the movement of the train, or that the crossing was blocked unreasonably or for an unnecessary length of time.
What kind of a lookout could the railroad company have kept which would have prevented the driver of the automobile from running into the train? The answer given is that the brakeman should have been stationed on the south side of the crossing to give warning to approaching travelers, and that this was done after the collision until the automobile was extricated from the train.
No doubt the jury was warranted in finding that if one of the brakemen had been posted on the south side of the track with his lantern, he could have given signals which would have averted the collision. But was the court warranted in imposing this degree of care on the railroad? If watchmen are required to prevent travelers from running into moving trains, two will be necessary, one will not suffice. Here the conductor and the brakempn were standing, at the time of the collision, in the center of the crossing, but on the north side. The moving train was between them and the approaching automobile. Complete protection could have been afforded only by having a brakeman on the south side of the track as well as on the north. The railroad track was straight, and so was the highway for a distance of a quarter of a mile before crossing the railroad track at a right angle, and there was nothing within two hundred feet of the crossing to obstruct the traveler’s view of the railroad.
Under the facts stated, we think there was no showing of negligence on the part of the railroad company. In the case of Perdue v. St. Louis S. W. Ry. Co., 82 Ark. 172, 100 S. W. 901, Mr. Justice Biddick said that, while railroads are responsible for injuries to travelers caused by their negligence, they are not insurers of the safety of travelers, and are not bound to provide against everything that may happen on the highway, but only for such things as ordinarily exist, or such as may reasonably be expected to occur. See also St. L. I. M. & S. Ry. Co. v. Aven, 61 Ark. 141, 32 S. W. 500 ; St. L. & S. F. R. R. Co. v. Ferrell, 84 Ark. 270, 105 S. W. 263. So here, while it now appears that the railroad company might, by the use of watchmen on both sides of the train at the crossing, have averted the collision, yet the practical operation of trains did not require that degree of care to forestall the injury, and a verdict should therefore have been directed in favor of the railroad company.
The judgments of the court below must therefore be reversed, and, as the cases appear to have been fully developed, they will be dismissed.
Humphreys and Mehaeey, JJ., dissent. | [
-16,
122,
-8,
-84,
26,
96,
41,
-102,
117,
-31,
-28,
83,
-19,
83,
-111,
49,
-25,
61,
81,
43,
118,
-85,
23,
-94,
-109,
-77,
-13,
-58,
-65,
-53,
100,
-9,
77,
0,
74,
85,
103,
72,
-59,
126,
-50,
20,
-23,
-32,
25,
-62,
-72,
122,
-122,
79,
17,
-98,
87,
46,
24,
-21,
109,
46,
123,
-87,
-64,
113,
-110,
5,
101,
6,
-95,
-28,
-102,
-127,
-40,
24,
-104,
-75,
120,
-8,
115,
-90,
-46,
-12,
105,
-55,
-120,
-94,
102,
33,
21,
-121,
-20,
-72,
46,
-14,
-117,
-89,
-78,
24,
19,
7,
-105,
63,
94,
16,
14,
122,
-4,
77,
89,
104,
-127,
-53,
-76,
-127,
-3,
36,
-98,
23,
-21,
-121,
54,
117,
-53,
-78,
94,
69,
114,
-101,
87,
-114
] |
Hart, C. J.
Earnest Reeder prosecutes this appeal to reverse a judgment of conviction against him for the violation.of our liquor laws. The jury found him guilty on four counts of the indictment and fixed his punishment at one year for each count, which were adjudged to run concurrently.
The first assignment of error is that the evidence is not legally sufficient to support the verdict. Under the evidence adduced by the State two deputy sheriffs of Sebastian County testified that they made a raid on the Hauck place, situated in the Greenwood District of Sebastian County, and found mash suitable for making intoxicating liquors, about a quart of whiskey, and a complete still ready for operation. The indications surrounding the place showed that liquor operations had been carried on there. Dan Reeder and his son, Earnest Reeder, had been jointly indicted for the crimes of manufacturing liquor, setting up a still, possessing an unregistered still, and making mash fit for distillation. Dan Reeder was tried first and convicted of the offenses.
In order to obtain a new trial by him, hi's attorney secured a written statement or confession from Earnest Reeder in which he confessed that he and Joe Hauck set up the still and had operated it. He stated in detail the acts which they had done in the operation of the still, . but said that his father had nothing whatever to do with it. The signed statement of the defendant was introduced in evidence against him. Notwithstanding that the statement was made by him in an effort to free his father, yet it was a statement in the nature of a confession and as such could he used as evidence against him on the trial of the case. His confession, together with the incriminating circumstances about the still and mash and whiskey being found there, was sufficient to warrant the jury in convicting him. Patterson v. State, 140 Ark. 236, 215 S. W. 629 ; and Smith v. State, 158 Ark. 487, 250 S. W. 527. It does not malee any difference under what circumstances the defendant made the statement. All that was necessary to render it competent was for the State to show that it was freely and voluntarily made.
The next assignment of error is that the court erred in admitting the testimony of W. E. Boatwright, a notary public, who took the affidavit of the defendant to the confession made by him. The record shows that the witness testified that he had taken the affidavit of the defendant in his presence and under what circumstances the statement was made. After the witness had left the stand, upon further reflection, he asked to take the stand again and said that, upon! reconsideration, he thought he had taken the affidavit of the defendant over the telephone, and that the defendant was not present at the time. The court then sustained an objection to his testimony and told the jury that it should not consider any statement the witness had made with reference to any confession made by the defendant. It is perfectly apparent from the record that the court proceeding was in good faith, and this is conceded by counsel for the defendant; but he contends that the prejudice was not removed by the exclusion of the evidence by the action of the court after it had been admitted. We can not agree with counsel in this contention. The court told the jury in plain language that it should not consider any of the testimony of the witness, and it is difficult to see what he could have said or done in addition. The jury is presumed to have been composed of men of common understanding, and it is difficult to see how their minds could have been affected in any way prejudicial to the defendant. Any other course would have resulted in the postponement of the trial and the granting of a new trial because of an error which was inadvertently committed, and which could not have been corrected in any other way.
The judgment of the circuit court will therefore be affirmed. | [
-80,
-26,
-103,
61,
-86,
-32,
42,
56,
66,
-125,
-9,
115,
-23,
82,
9,
115,
-25,
111,
80,
121,
-61,
-89,
23,
99,
-46,
-77,
59,
-41,
48,
79,
-74,
-12,
12,
52,
67,
85,
-90,
-56,
-63,
92,
-122,
5,
56,
-32,
83,
18,
50,
-17,
21,
14,
49,
14,
-10,
43,
31,
-53,
73,
46,
73,
45,
88,
-16,
-112,
-107,
-33,
18,
-79,
118,
-108,
1,
72,
58,
-102,
-75,
0,
-7,
-13,
-76,
-124,
84,
15,
-87,
13,
98,
-93,
49,
-43,
-17,
44,
-104,
63,
46,
-103,
-89,
-112,
73,
75,
32,
-74,
-99,
122,
24,
54,
-6,
-20,
-59,
89,
120,
-124,
-113,
-80,
-75,
31,
-96,
70,
83,
-61,
5,
32,
117,
-43,
-74,
92,
85,
80,
-101,
-122,
-75
] |
Smith, J.
A sewer improvement district, designated as No. 1, was organized in the city of Fayetteville in 1907, and plaintiff has since continuously paid the annual assessment of benefits levied against his property lying therein. On January 5, 1925, another sewer improvement district was organized, which was designated as Annex No. 1 to Sewer Improvement District No. 1. This last district was adjacent to the first, and certain lots, including those of plaintiff, were in both districts.
'Betterments were assessed in the annex, and bonds were issued and. sold to the Mellroy Bank & Trust Company, of which, institution J. II. Mellroy, one of the commissioners, was president. The record discloses no objection or protest from any property owner to these proceedings. With the proceeds of the bonds so sold the improvement was constructed.
These bonds were sold to mature in ten years, but in October, 1928, proceedings were had, under the authority of act 126 of the Acts of 1927 (Acts of 1927, page 388), to refund them upon the basis of twenty years for final maturity. The district had then been in existence for three years, and plaintiff and other' property owners had paid certain installments of the assessed benefits. Section 5 of the act of 1927, su-pra, provides that any property owner may appeal from the refunding order, but that such appeal must be prosecuted within thirty days. No appeal was prosecuted from that order within that time at all. The refunding bonds were sold to the Mcllroy Bank & Trust Company. The resale being merely an exchange of the old bonds for the new ones, with certain adjustments of the difference according to payments already made.
■ A reassessment of benefits was ordered and was made. Plaintiff and certain other property owners appealed to the city council from this reassessment, and the hearing thereof was set for January 7, 19'29. On account of illness in his family, plaintiff was unable to attend the hearing and sent word to the city council asking a postponement in order that he might be heard, but the council refused to postpone the hearing and heard the protests in plaintiff’s absence and denied him any relief. No showing was made that the notice of this action required by § 5668, O. & M. Digest, was not given. No action was taken by plaintiff until May 3, 1929, when he filed a complaint in which he attacked the assessments on numerous grounds and prayed that their further collection be enjoined. There was a general finding against plaintiff, and his complaint was dismissed as being without equity, and he has appealed.
The validity .of the thirty days’ limitation on the right to attack betterment assessments provided for in § 5668, C. & M. Digest, has been frequently upheld. In the late case of Carney v. Walbe, 175 Ark. 746, 300 S. W. 413, it was said: “"Where the property owner delays until after the period of time prescribed by statute for a direct attack on the action of the council establishing the district and the assessment of benefits to the real property situated therein, a suit by the property owner to review the proceedings of the common council establishing the district or the board of assessors in assessing the benefits to the real property within the district is a collateral attack, and such proceedings can only be set aside when they appear on their face to be demonstrably erroneous.” 'See also Portis v. Ballard, 175 Ark. 834, 1 S. W. (2d) 1 ; Carnahan v. Fayetteville, 175 Ark. 405, 1 S. W. (2d) 10 ; Paving Dists. Nos. 2 and 3 of Blytheville v. Baker, 171 Ark. 692, 286 S. W. 945.
Certainly the action of the council, in refusing the postponement requested by plaintiff of the hearing of his protest against the assessment of his lots, does not make the assessment demonstrably erroneous. Conceding that the council abused its discretion in this respect, its jurisdiction was unaffected by that action. Plaintiff’s right of appeal remained, and his duty to prosecute that remedy was unaffected by the council’s action, even though the showing for a postponement was so strong that the refusal to grant it appears to us to have been arbitrary. It may be said, in this connection, that the statute provides that the appeal from the action of the board of assessors “shall be heard and disposed of at' the next regular meeting of the city council.” Section 5661, C. & M. Digest.
We are not prepared to hold that the sale of the refunding bonds to the Mcllroy 'Bank & Trust Company was in violation of § 5711, C. & M. Digest, which prohibits any member of a board of improvement from being interested, either directly or indirectly, in any contract made by the board for or on behalf of the improvement district. There was no allegation of fraud, or. that the district had not been fairly dealt with. The sale of the bonds was not made to Mcllroy, but to a corporation of which he was an officer. But, if it were held that the transaction was of questionable propriety, or even in violation of law, the validity of the assessment of benefits would not thereby be affected.
It appears that plaintiff owns lots which are assessed in both districts, but this fact alone would not render either assessment demonstrably erroneous. We have held that assessments of benefits may be enforced on the same property by more than one district provided the property receives benefits from each district. Roberts v. Street Imp. Dist., 156 Ark. 248, 245 S. W. 489 ; Harrison v. Abington, 140 Ark. 115, 215 S. W. 255.
In the case of Miller v. Seymour, 156 Ark. 273, 245 S. W. 811, it was held that property included in the original district may also be assessed in an annex to such original district if it receives benefits in both the original district and the annex.
There was no showing that the finding of the board of assessors that plaintiff’s property would receive benefits from the new as well as the old district was. demonstrably erroneous.
It was shown that a considerable part of the revenues of the annex was expended in the construction of a sewer main in the old district; this was done to connect with the main of that district and an outlet was thereby furnished, otherwise the annex district would have had to furnish its own disposal facilities. This action was authorized by the statute. Section'5735, C. & M. Digest. See Jones v. Sewer Imp. Dist. No. 3 of Rogers, 119 Ark. 166, 177 S. W. 888 ; Kraft v. Smothers, 103 Ark. 269, 146 S. W. 505.
It was shown that in the assessment of benefits against plaintiff’s property a portion only of certain of his lots were assessed, and it is insisted that no authority exists for the assessment of any portion of a lot less than the whole. We have held otherwise. In the case of Holt v. Ring, 177 Ark. 762, 9 S. W. (2d) 43, it was held: “It is next contended by appellant that the district is void because it divides lots. Certainly, in the formation of. an improvement district, the property owners forming the district can fix the boundaries, and it has been decided by this court that the boundary line may divide lots. If a lot is divided, a portion of it being within the district and another portion without, this does not invalidate" the district. But, in determining whether the petitioners have a majority in value, the value of a lot so divided cannot be considered. * * *”
It was not shown that the council considered the value of these lots in determining whether a majority in value of the property owners had petitioned for the improvement, but it is permissible to consider the betterments against these parts of lots to determine whether the cost of the improvement would exceed the limitation fixed by law and specified in the petition of the property owners for the construction of the improvement, and there was no showing that the cost of the improvement exceeded the betterments or that the law had been violated in this respect.
Certain other questions are argued, which, like those discussed, have been settled 'by numerous decisions adversely to plaintiff’s contention, and as the assessments do not appear, from the face of the record, to be demonstrably erroneous, and as the appeal has not been prosecuted within thirty days as provided by law, the decree of the court below must be affirmed, and it is so ordered. | [
-16,
88,
-68,
-18,
-118,
-128,
8,
-100,
81,
-88,
-27,
95,
-83,
79,
1,
69,
-13,
121,
101,
123,
-42,
-77,
19,
34,
-38,
-77,
-5,
87,
-72,
-35,
-12,
-42,
28,
32,
-54,
-99,
102,
-64,
-49,
-36,
-50,
-127,
-118,
109,
-35,
65,
52,
107,
50,
77,
85,
92,
-85,
44,
16,
-45,
73,
44,
-21,
43,
80,
-15,
-120,
-115,
127,
5,
33,
-42,
-100,
67,
114,
10,
-104,
53,
4,
-24,
115,
-90,
-122,
117,
79,
-119,
44,
34,
98,
17,
-43,
-1,
-16,
-116,
6,
-34,
-115,
-92,
-109,
121,
83,
39,
-68,
-103,
93,
22,
-121,
-8,
-26,
-107,
93,
108,
-113,
-114,
-106,
-93,
77,
-80,
-119,
3,
-17,
3,
32,
112,
-51,
-26,
95,
103,
51,
-37,
-122,
-7
] |
Humphreys, J.
Appellant operated a compress at Jonesboro, received cotton from the appellees as warehouseman and stored it in section or shed “A” of the’ compress which was totally destroyed ¡by fire during the noon hour on December 8, 1927.
Appellees herein and many other owners of cotton which was destroyed in the fire brought separate suits in the circuit court of ¡Craighead County to recover the value of their respective lots of cotton.
The separate cases of appellees and those of H. J. Boolin, W. F. Rogers, Joe Edwards, W. ¡S. Harris, and Mrs. Mary Neyman were consolidated for the purposes of trial. After the consolidation W. S. Harris and Joe Edwards were each permitted to take a nonsuit in his case. The other cases were transferred on change of venue to the circuit court of Mississippi County, Chickasawba District, for trial. After the transfer of the consolidated oases to the latter county, Mrs. Mary Neyman took a nonsuit in her case. The other cases proceeded to trial upon the pleadings, testimony and the instructions, of the court which resulted in separate judgments in favor of each of the appellees for the value of his cotton, from which is this appeal.
The consolidated cases are companion cases with the consolidated cases which were before this court on appeal in the case of Jonesboro Compress Company v. A. W. Hall, 178 Ark. 753, 13 S. W. (2d) 298. The pleadings are identical, involving the same issue, and the testimony in the two cases is not materially different. The issue joined was succinctly stated in the Hall case, supra, and the facts were fully set out therein,.so reference is made to that casé for a statement of both the issue and the facts, rather than to restate them in the instant case.
The undisputed facts in the instant case reflect that section “A” of the compress company, containing about 3,000 bales of cotton, was left during the noon hour without any employee under any instruction to watch or guard against fire. True, the foreman, Peter Batch, testified in the instant case that when he left the compress at four ¡minutes after 12:00 o’clock he left Will Shelton, Charlie Watson, Robert Snow, Joe Perkins, Mack Campbell and Annie Williams there, and that, had it not been that they were to remain in the compress during the noon hour, he would not have left the compress. He did not testify as to what he would or would not have done in the Hall case, siopra. The parties mentioned by him were negro laborers, none of whom worked or were paid during the noon hour except Snow. Snow and Watson were in the boiler room which was separated from section “A” by a fire wall, and to get into section “A” they would have to go on an outside platform fifty feet. The others were accustomed to and did go into the old office, for the purpose of eating their dinner, adjoining section “A” but also separated from it by a wall containing some windows up quite a distance above the floor. None of them were watching or guarding section “A” against fire, and did not observe or discover the fire until too late to extinguish it. We do not think the additional testimony of the foreman changed the condition or situation in the least from the situation and condition reflected by the record in the Hall case, supra. The record in the Hall case reflected that section “A” ivas abandoned during the noon hour, and the record in the instant case reflects that no duty was imposed upon the employees by the foreman to watch and protect section “A” during the noon hour, and as a matter of fact none of them remained in section “A” during the noon hour.
The law of negligence declared and applied in the Hall case was declared and applied in the instant case, and correctly so, as the facts of the two cases are parallel in all material respects. The instant case therefore is ruled by the Hall case, supra.
Appellant contends for a reversal of the judgments because a change of venue was granted to appellees after consolidation of the cases without sufficient affidavits in each and every case, naming four of the cases in which the affidavits were defective or insufficient. Appellant has not favored us with an abstract of the proceedings on the question of removal, and we cannot intelligently pass upon this contention and therefore refrain from doing so.
Appellant also contends for a reversal of the judgments because, after the cases were consolidated, three of the parties were permitted to 'take nonsuits. They were permitted to dismiss their suits under § 1261 of Crawford & Moses ’ Digest, and that section accords them the privilege and right to dismiss their causes before the final submission of same to the jury or court. Carpenter v. Dressler, 76 Ark. 400, 89 S. W. 89. It is even within the sound discretion of the court to permit a non-suit without prejudice after final submission of the cause. St. L. S. W. Ry. Co. v. White Sewing Machine Co., 69 Ark. 431, 64 S. W. 96. The mere fact that cases are consolidated for the’ purposes of trial cannot take from a party his statutory right to dismiss his suit under said section of the statute.
No error appearing, the judgments are affirmed. | [
112,
108,
-4,
13,
24,
-31,
10,
-70,
82,
-95,
100,
83,
-7,
-57,
73,
85,
-30,
93,
85,
61,
-28,
-121,
19,
98,
-109,
-45,
113,
-59,
48,
73,
100,
-42,
76,
32,
74,
-111,
-58,
-64,
-59,
92,
-50,
1,
-5,
104,
125,
16,
52,
45,
52,
79,
113,
-82,
-6,
40,
20,
-49,
73,
45,
-21,
42,
80,
120,
26,
71,
-65,
22,
48,
100,
-102,
-127,
-120,
62,
-104,
49,
16,
-20,
115,
-92,
-122,
-12,
43,
-103,
8,
98,
34,
10,
-123,
-89,
-88,
-120,
38,
-66,
-67,
-90,
32,
72,
75,
73,
-65,
21,
126,
80,
31,
126,
-3,
21,
92,
104,
-121,
-113,
-106,
-73,
9,
45,
-100,
27,
-21,
39,
48,
117,
-49,
-94,
93,
7,
19,
-101,
-58,
-45
] |
Leflar, J.
William H. and John J. Purcell brought ejectment against W. E. Weatherly, claiming title to certain land,by reason of a deed executed by their grandfather to. their father. Defendant Weatherly by answer denied that the Purcells had title; and also by cross-complaint asserted that, if title should be found to be in the Purcells, he was entitled to reimbursement under Ark. Stats., § 34-1423, for the value of improvements made upon the land during his prior occupancy. At the trial the Circuit Judge held that as a matter of law the Purcells had the title, and submitted to the jury only the question as to whether and in what amount Weatherly had made improvements upon the land within the meaning of § 34-1423. On this issue the jury returned a verdict in Weatherly’s favor for $7,760.00. Now, Weatherly appeals from that part of the judgment which held title to be in the Purcells, and the Purcells cross-appeal from the award to Weatherly for improvements made.
(1) The deed in question, from the Purcells’ grandfather to their father, was executed in 1889. In the granting clause it conveys the land to “John E. Purcell and his bodily heirs.” The recitation in the habendum is <£to have and to hold -the aforegranted premises to the said John E. Purcell and his heirs aforesaid in fee simple forever.” Then the covenanting clause runs in favor of “the said John E. Purcell his heirs and assigns forever. ’ ’ And finally the release of dower clause, signed by the grantor grandfather’s wife, is “unto the said John E. Purcell his heirs and assigns.”
The grantee John E. Purcell occupied the land from 1889 to 1930, when he conveyed to defendant Weatherly, purporting to transfer a fee simple estate. John E. Purcell died in 1949, leaving plaintiffs William H. and John J. Purcell as the heirs of his body.
Weatherly’s claim to title is based on the theory that the deed, read as a whole, conveyed to John E. Purcell a fee simple estate, which was in turn conveyed to Weatherly by the 1930 deed. The theory of the plaintiffs, the Purcells, is that the deed conveyed only a common law fee tail estate which, by Ark. Stats., § 50-405, is made into a life estate in the first grantee followed by a remainder in fee simple to the heirs of the life tenant’s body. Under this theory John E. Purcell could convey to Weatherly no greater interest than his own life estate which ended in 1949, at which time the plaintiffs as remaindermen became entitled to possession.
We are definitely committed to the rule that the effect of a deed is not to be determined by the words of the granting clause alone, but is to be discovered from the language of the instrument as a whole. Where there is inconsistency between the granting clause and the habendum, the words of the habendum will prevail if, looking at “the four corners of the deed,” it is determined that they represent the true intent of the grantor as expressed by the whole deed. Luther v. Patman, 200 Ark. 853, 141 S. W. 2d 42; Beasley v. Shinn, 201 Ark. 31, 144 S. W. 2d 710, 131 A. L. R. 1234; Stewart v. Warren, 202 Ark. 873, 153 S. W. 2d 545; Garter Oil Co. v. Weil, 209 Ark. 653, 192 S. W. 2d 215; Coffelt v. Decatur School Dist., 212 Ark. 743, 208 S. W. 2d 1; McBride v. Conyers, 212 Ark. 1034, 208 S. W. 2d 1006. And see Restatement, Property, § 242(c).
A majority of the Court have concluded that no inconsistency appears in the present deed, that Weath-erly had only an estate pur autre vie which is now ended, and that the Purcells are entitled to possession as remain-dermen. The granting clause of the deed runs to “John E. Purcell and his bodily heirs.” These words by themselves would create a fee tail at common law. The habendum is “to the said John E. Purcell and his heirs aforesaid in fee simple forever. ” The “heirs aforesaid” to which the habendum refers are “his bodily heirs” as set out in the granting clause. By our statute (§ 50-405) the legal effect of a gift to P and his bodily heirs is a life estate to P and a fee simple to the “heirs aforesaid,” to-wit, P’s bodily heirs. That is exactly what the habendtm called for. Under this view, there is in the deed no conflict of language calling fo,r interpretation of the instrument as a whole. The language in the covenant and release of dower clauses is deemed to refer only to the particular heirs whose relevance to the conveyance is fixed by the granting clause and habendum;, inasmuch as the later clauses in the deed serve incidental purposes only, and do not purport to define the estate conveyed.
This view is supported by Corbin v. Mealy, 20 Pick. (Mass.) 514, quoted and followed in our own case of Dempsey v. Davis, 98 Ark. 570, 136 S. W. 975. In Corbin v. Mealy the conveyance was to “Khoda and to her heirs born of her body’’’ . . . “to have and to hold the same” to her “and her heirs forever,” followed by covenants to her “and her heirs as aforesaid.” The Massachusetts court, by Shaw, C. J., “conceded that the habendum may sometimes enlarge or diminish the grant, when it is so worded as to show a clear intention to do so. But here the habendum is not in terms, to hold the land, but to hold ‘ the same ’; that is, the limited estate in the land before granted, which was an estate tail; and then the generality of the word ‘heirs’ in the habendum may be well construed to be limited to those heirs, who by law could take that estate, namely heirs of her body.” Then the court said that the term “heirs as aforesaid” as it appeared in the covenant “must be understood heirs in tail, entitled to take. ’ ’
(2) The so-called “Betterments Act,” Ark. Stats., §§ 34-1423 et seq., permits recovery of the value of improvements made and taxes paid by any person who, “believing himself to be the owner, either in law or equity, under color of title, has peaceably improved . . . any land which upon judicial investigation shall be decided to belong to another.”
The evidence in the present case indicates without question that up until 1946 everyone who had anything to do with the land assumed that the 1889 deed conveyed a fee simple title to John E. Purcell. John E. Purcell executed a deed in 1930 purporting to convey a fee simple to Weatherly. That gave Weatherly “color of title” within the meaning of the Betterments Act. The fact that John E. Purcell’s own deed, which did not give him a fee simple (as we today determine), was on record did not keep Weatherly from “believing himself to be the owner,” as prescribed by the statute. Beard v. Dansby, 48 Ark. 183, 2 S. W. 701; Shepherd v. Jernigan, 51 Ark. 275, 10 S. W. 765. It is not necessary now to review all the evidence introduced; it suffices to say that when Weatherly made the improvements upon the land for which he now seeks reimbursement he had no idea that he owned only an estate pur autre vie while John E. Purcell lived. Pie peaceably improved the land while in possession under color of title believing himself to be the owner in fee simple. That entitled him to recover under § 34-1423.
Finally, the Purcells object to the'manner in which the betterments issue was presented to the jury, in that (1) the Circuit Judge refused to give an instruction that “a life tenant has a right to cut only snch timber from the lands in his possession as constitute good husbandry and farming practices,” and (2) that the jury in calculating the value of the improvements was not prevented from including increased values attributable to changed economic conditions rather than to the improvements themselves. As to the first of these objections it is enough to point out that the only issue upon which the proffered instruction might have been relevant was as to whether the clearing of the land constituted a reimbursable improvement, and on that issue the instruction was abstract and incomplete, therefore properly denied. And as to the second objection, the record shows that the Court specifically instructed the jury on the point, telling them to find the difference between what would be the value of the land at the present time if the improvements had not been made and its present value with the improvements.
We find no error in the proceedings below. The judgment is affirmed both on the appeal and the cross-appeal.
Fender v. Rogers, 185 Ark. 191, 46 S. W. 2d 804, may be distinguished by the fact that no words defining the estate granted were placed in the granting clause, and the apparently contradictory language all appeared in the habendum. The Court thus undertook to discover only the meaning of the two sets of words used in the habendum.
Compare Douglas v. Hunt, 98 Ark. 320, 136 S. W. 170, and Graves v. Bean, 200 Ark. 863, 141 S. W. 2d 50, in both of which the occupant had been informed, before making improvements, of the outstanding claim to a remainder following his own life estate. | [
-16,
104,
-108,
127,
-56,
96,
42,
-102,
115,
-95,
-25,
83,
111,
-47,
13,
45,
97,
121,
81,
58,
102,
-77,
63,
115,
-46,
-77,
-45,
69,
-78,
-55,
-89,
-41,
76,
40,
66,
85,
-60,
64,
-51,
80,
-114,
-50,
10,
109,
-55,
84,
48,
61,
86,
13,
53,
-97,
-13,
45,
25,
-22,
72,
46,
75,
61,
65,
40,
-82,
-113,
-5,
7,
19,
5,
-72,
73,
74,
8,
-112,
21,
-128,
-20,
115,
-90,
-106,
-12,
13,
11,
13,
96,
-25,
32,
69,
-17,
-88,
-71,
46,
123,
-107,
-90,
-46,
88,
75,
77,
-81,
-115,
123,
64,
70,
118,
-19,
-108,
92,
40,
1,
-49,
-44,
-95,
5,
-8,
-116,
19,
-45,
-113,
32,
112,
-49,
-86,
125,
70,
113,
-101,
14,
-110
] |
Dunaway, J.
This suit was filed by the Merchants National Bank of Fort Smith, as Executor of the estate of George 0. Brinkmann, deceased, for a construction of the decedent’s last will and testament.
These are the issues which we must decide on this appeal:
(1) Did the decedent die intestate as to his real property, as is contended by appellant Ruth Brinkmann Brunk?
(2) Was Ruth Brinkmann Brunk the legally adopted daughter of the decedent?
(3) Should the will be reformed to correct an alleged mistake in the bequest to Lola Brinkmann Strojost, a niece of the decedent and one of the appellants here ?
(4) Was there a delivery of a deed to certain real property executed by the decedent to his foster daughter, Lillian Trapp, one of the appellees here; and if not, was there an enforceable contract made by the decedent to devise or convey to her said real estate?
The Chancellor held that the decedent’s real estate was disposed of by the residuary clause of his will; that Ruth B. Brunk was the decedent’s legally adopted daughter; that there should be .no reformation of the bequest to Lola B. Strojost; and that there was both a contract .to devise or convey certain real property to Lillian Trapp, and a constructive delivery to her of a deed to said property.
The questions presented will be discussed in the order above-stated.
The pertinent parts of the will on the issue of intestacy as to real estate are as follows:
. . I, George C. Brinkmann, of Fort Smith, Arkansas, of legal age and of sound and disposing mind and memory, and knowing the uncertainty of life, and the certainty of death, and desiring to make disposition of my property while I am able so to do . . .
“I give, devise and bequeath to the following named churches and benevolent organizations, as follows: (then follows a list of charitable institutions with bequests to each in designated amounts). If there should be left, after paying amounts donated to the above named Churches and Benevolent Organizations I direct that said amounts be paid to said named churches and benevolent organizations in accordance to the amounts that I have given to each of said Churches and Benevolent Associations. ”
Appellant Buth B. Brunk contends that the language in the residuary clause — ‘‘If there should be left, after paying amounts donated to the above named churches and benevolent organizations I direct that said amount . . . “be paid proportionately to these charities— referred only to money or personal property, and was not sufficient to dispose of the testator’s real estate, which was nowhere specifically mentioned in the will. In urging this construction, she relies on the rule as stated in Williams v. Norton, 126 Ark. 503, 191 S. W. 34, that “an heir can be disinherited only by express devise or necessary implication, so strong that a contrary intention cannot be supposed; that the heir cannot be disinherited unless the estate is given to somebody else.”
The will in question must, however, be construed in accordance with other established rules as well. In Lockhart v. Lyons, 174 Ark. 703, 297 S. W. 1018, we said at p. 706: “The true rule in the construction of wills, which can be said to be paramount, is to ascertain or arrive at the intention of the testator from the language used, giving consideration, force and meaning to each clause in the entire instrument.
“A testator is presumed to intend to dispose of his entire estate, and it must be borne in mind, in the construction of wills, that they are to be so interpreted as to avoid partial intestacy, unless the language compels a different construction. . . . ”
See, also, Badgett v. Badgett, 115 Ark. 9, 170 S. W. 484; Morris v. Lynn, 201 Ark. 310, 144 S. W. 2d 472.
Also applicable to the case at bar are these rules stated in Galloway v. Darby, 105 Ark. 558,151 S. W. 1014 at pp. 572-573, 44 L. R. A., N. S. 782, Ann. Cas. 1914D, 712.
“The presumption against intended intestacy leads to a liberal, rather than to a restrictive, construction of the residuary clause, in the will, in order to prevent partial intestacy.
“The rule is that the testator’s intention is to be ascertained from the whole will. . . . Hence it follows that language which in a general or residuary clause may not alone be sufficiently conclusive to dispose of all the property of the testator may have its meaning enlarged to correspond with an intention shown in the introductory clause.”
Although the testator in the introductory clause of his will-did not say he intended to dispose of “all” his property, he did state his intention of disposing of his “property” without limitation. He then made substantial specific bequests to a number of his relatives, including $2,500 to Ruth B. Brunk. In addition, the proof shows that the same day the will was executed, he executed and had delivered to her a deed to his home in Fort Smith. The testator certainly did not disinherit this appellant.
We have concluded, from a consideration of the whole will, that the Chancellor correctly held that the testator intended to dispose of his entire estate. The decedent’s real estate passed under the residuary clause to the charities named therein.
The next question concerns the legality of the adoption of Ruth B. Brunk. On October 8, 1934, George C. Brinkmann and his wife, Lena, filed petition in the Probate Court for the Fort Smith District of Sebastian (Guilty to adopt Ruth Bute. In the petition it was stated that the child was fourteen years of age and had been in petitioners’ custody since July 4, 1932, and that Ruth was a resident of Sebastian County. The Probate Court endorsed on the back of the petition: “Petition approved this Stli October, 1934. (signed) R. P. Strozier, Probate Judge.” The formal order of adoption failed to state that the child was a resident of Sebastian County, a jurisdictional defect which would render the adoption void under our holdings in Morris v. Dooley, 59 Ark. 483, 28 S. IV. 30 and 430 and Minetree v. Minetree, 181 Ark. 111, 26 S. W. 2d 101.
(hi August 13, 1949, while this suit was pending, an order nunc pro tunc in the adoption proceedings was entered on petition of Ruth B. Brunk without notice to anyone, correcting the original adoption order to state the required residence. The validity of the original order and of the nunc pro time order entered without notice is challenged. We do not deem it necessary to discuss the order nunc pro tunc; for an attack on the original order of adoption is barred by limitations under the provisions of § 3 of Act 408 of the Acts of 1947. We held § 3 of that Act to be a valid statute of limitations in the recent case of Dean v. Brown, 216 Ark. 761, 227 S. W. 2d 623. There we said: “The entire matter of adoption is statutory, and the Legislature in said § 3 enacted that when (a) adopting parents had kept a child for two years under a court order, and (b) no proceeding be filed within that time to challenge the order, then the adoption should be considered beyond attack.”
Tlie record sufficiently shows that Ruth B. Brunk was kept for two years under a court order by the parties attempting to adopt her, without any proceeding to chai lenge the order, so under our holding in the Dean case the adoption became perfected.
The third question for our consideration involves the bequest to Lola Brinkmann Strojost. It is her contention that through a scrivener’s error an intended bequest to her of $2,500 was mistakenly listed in the will as only $500. FolloAving three bequests of $2,500 each, this item appears in the will:
“To Lola Brinkmann Strotjost. of xxxxxxxxxxxxxx
Furgason Missouri xxxxxxxx $500.00
(The words x’d out are ‘ ‘ Farmington, Missouri, $2,500.00” and the amount “$2,500.00” is again x’d out following the words “Furgason, Missouri”.)
T. W. M. Boone, the attorney who drafted the will, testified that after he prepared the will it was taken to Mr. Brinkmann, who read it as written and made no correction in this item before signing. It appears that two changes in other items in the typewritten copy of the will were made in pen and ink. Appellant Strojost attempted to show that the bequest as written was a scrivener’s error by showing that in earlier wills she had been bequeathed the sum of $2,500.
We think the Chancellor correctly held against this appellant’s claim under our ruling in Jackson v. Wolfe, 127 Ark. 54, 191 S. W. 938. That case involved a suit to reform a will, it being contended that the testator intended to describe a tract of land other than the tract actually described in the questioned devise. We said at pages 56-57 of the opinion in the Jackson case: (first quoting from Eagle v. Oldham, 116 Ark. 565, 174 S. W. 1176)
“ ‘But while we may feel sure of the testator’s intention, we must gather that intention from the will itself. This idea has been expressed in a variety of ways by all the courts. But extrinsic evidence is generally held admissible in the interpretation of wills, not to show what the testator meant, as distinguished from what his words express, but for the purpose of showing the meaning of the words used.’
“ . . . In the present case we find no circumstances whatever which would justify this court in declaring that the testator meant by the description used, to convey a tract other than the one which was specifically described. . . , To hold with the plaintiff in this case would be purely a reformation of the instrument, which in all the cases on that point this court has held could not be done. ’ ’
The final issue to be decided is whether Lillian M. Trapp is the owner of a house and lot in Fort Smith, which adjoined the decedent’s homeplace. The executor and others have appealed from the Chancellor’s finding that the property belongs to her by virtue of a deed executed to her by the decedent; and that Brinkmann had made an enforceable contract to convey or devise said property to her.
Lillian Trapp was taken into the home of George C. Brinkmann and his wife, Lena, when the girl was seven years of age. She was not adopted by them because her father was living and would not give his consent. She lived with them as if she were their daughter until she married at nineteen years of age. There is testimony that from the time Lillian was fourteen years of age until her marriage, she worked for wages which she turned over to the Brinkmanns with the understanding that she would share in their estate as if she were their natural child. Many disinterested witnesses testified that the Brinkmanns had said repeatedly over a period of twenty-five years that Lillian was to receive the real estate in question.
Prior to the death of Lena Brinkmann, she and her husband executed mutual or reciprocal wills. Mr. Boone, who prepared said wills, testified that they were the same in leaving the property of each to the other; both wills with a provision that if the other spouse should predecease the maker, the property in issue should go to Lillian Trapp. Lena Brinkmann’s will, unchanged, was admitted to probate on November 26, 1947.
On March 30, 1948, George C. Brinkmann prepared in his own handwriting, executed and acknowledged, a warranty deed conveying said lot to Lillian Trapp. This deed was placed in an envelope which was sealed and upon the face of this envelope Brinkmann wrote: “Mrs. Lillian Trapp, Farmington, Michigan. See Mrs. Ruth Brinkmann Brunk, 1009 South lltli Street at Fort Smith, Arkansas, for correct address.”
During decedent’s last illness he sent for his half-brother, Herman Erke, to come and stay with him in Fort Smith. Sometime prior to his going to the hospital, where he died on January 18,1949, Brinkmann told Herman of the deed he had executed; pointed out a tin box in his safe where he said the deed A¥as; and directed that it be delivered to Lillian Trapp. Herman’s testimony was unsatisfactory as to whether the delivery was to be made immediately or at Brinkmann’s death.
After Brinkmann’s death, the executor found said deed unrecorded in the lock box of the decedent at the Merchants National Bank of Fort Smith. When Herman had looked for the deed in the tin box at decedent’s home he had discovered it was not there; that Brinkmann liad been mistaken about where he had placed it. No one had access to the bank lock box after the execution of the deed but decedent himself.
We hold that under the facts as outlined, there was no delivery of the deed. Since we agree with the Chancellor’s finding that there was an enforceable contract by Brinkmann to devise this property, and his holding will be affirmed on that ground, we shall not discuss our cases on the requirements for actual or constructive delivery of deeds.
As stated in Crowell v. Parks, 209 Ark. 803, 193 S. W. 2d 483: “It has long been the-rule of this court that a valid oral contract to make a will or a deed to land may be made, but that the testimony to establish such a contract -must be clear, cogent, satisfactory and convincing.” A number of earlier cases are reviewed in the opinion in the Crowell case. We further said in Offord v. Agnew, 214 Ark. 822, 218 S. W. 2d 370: “As in other contracts, a promise to make a will cannot be enforced without consideration. The usual type of consideration in contracts of this class is a promise by one party to support and care for another during life in consideration of the other party’s agreement to devise the land.”
While a promise of care or support is the usual type there may be such contracts based on other consideration. In the case of Crews v. Crews, 212 Ark. 734, 207 S. W. 2d 606, an oral contract to devise property was involved in an action by the widow of the decedent. During his lifetime she had joined in the conveyance of property held by the entirety, which was subsequently reconveyed to him. In consideration of the conveyance of the wife’s interest, he had agreed to devise the property to her, which oral contract was enforced.
In 4 Page on Wills (3rd Ed), § 1707, p. 828, it is said: “If the contract to bequeath or to devise property is a contract for making joint, mutual, or reciprocal wills, in which the consideration for the promise by A to make a will which contains certain provisions, is a corresponding promise by B to make a will containing similar provisions, the contract is enforceable, and if broken, the prom-isee may enforce it either at law or in equity.” And to quote from § 1712 at p. 850: “A promise to make a will is consideration for a promise to make a will in return; even if a third person is to be the beneficiary. ’ ’
In some jurisdictions it has been held that the execution of mutual or reciprocal wills by husband and wife at the same time and with similar provisions is of itself sufficient to prove a contract to dispose of property in the manner indicated in the wills. Chambers v. Porter, Supreme Court of Iowa, June 25, 1921, 183 N. W. 431; Frasier v. Patterson, 243 Ill. 80, 90 N. E. 216, 27 L. R. A., N. S. 508, 17 Ann. Cas. 1003. However, according to the general rule, the execution of such wills is not of itself evidence of a contract to devise property, but such a contract may appear from the terms of the will. See cases collected in Annotation 43 A. L. R. 1028.
In the case at bar, in addition to the testimony outlined, there was additional evidence of a contract to convey or devise the property in question to Lillian Trap]). Herman Erke testified that both G-eorge C. and Lena Brinkmann had told him many times they had put llioir property together and that Ruth would get the home place and Lillian the property next door. The tenant who occupied the house in question testified that when he tried to buy the place, Brinkmann said he could not sell it because it belonged to Lillian. Many other witnesses testified that Brinkmann always referred to the property as “Lillian’s.”
No testimony was introduced to contradict that introduced on behalf of Lillian Trapp. Indeed it is conceded that the decedent wanted her to have the property, but it is argued that since the deed executed by him was not delivered his intention must fail. . The Chancellor found “from the evidence that George G. Brinkmann executed said deed pursuant to a contract made with Lillian Trapp, and with his wife, Lena Brinkmann, for the benefit of Lillian Trapp . . . ”
Although the decedent erroneously thought he had effectively conveyed the property during his lifetime, we hold that the evidence supports the finding of a contract' to convey or devise, and the action of the Chancellor in vesting title in Lillian Trapp will be sustained.
The decree is affirmed.
Holt, J., not participating. | [
81,
-20,
-36,
110,
26,
96,
-94,
-101,
83,
-31,
-91,
83,
-21,
-36,
17,
109,
115,
61,
-31,
106,
-13,
-77,
7,
32,
80,
-78,
-71,
-43,
-80,
77,
100,
71,
72,
96,
74,
85,
98,
-93,
-31,
16,
14,
0,
9,
109,
-35,
-64,
48,
-29,
84,
15,
69,
-66,
-9,
41,
57,
67,
8,
46,
111,
-71,
-47,
-72,
-86,
4,
95,
7,
-95,
4,
-72,
33,
-56,
40,
-112,
53,
8,
-24,
113,
-90,
-106,
116,
107,
-67,
9,
98,
98,
32,
45,
-3,
-112,
-104,
-113,
-74,
-107,
-25,
-110,
88,
1,
109,
-66,
-107,
125,
16,
2,
-4,
-26,
-115,
24,
-20,
15,
-114,
-42,
-79,
-81,
-16,
-120,
3,
-9,
-53,
48,
113,
-34,
66,
93,
71,
120,
-101,
-122,
-15
] |
Mehaeey, J.
The appellants, who are residents of Washington County, Arkansas, filed suit against the appellee as administrator of the estate of John Puckett, deceased, to recover damag'es for personal injuries sustained by them in an automobile collision which occurred in Washington County on July 6, 1929. Appellee is a resident of Benton County. The appellants were in a car with Harvey Beachey at the time of the accident. Beachey was killed and appellants injured when the ear they were in collided with the car driven by John Puckett, John Puckett was also killed in the collision. Com plaint was filed in the "Washington Circuit Court, summons issued thereon to the sheriff of Benton County and was served on appellee in Benton County. No service was ever had in Washington County. After the death of John Puckett, his father, J. W. Puckett, appellee herein, was appointed, by the Washington County Probate Court, administrator of the estate of John Puckett, deceased.
Appellants allege that the collision was caused by the negligence and carelessness of John Puckett. Appellee filed a motion to quash the service of summons on the grounds that plaintiffs are residents of Washington County; that defendant is a resident of Benton County, and was at the time of filing the suit and had been at all times since; that the suit was filed in the Washington Circuit Court and summons issued and directed to the sheriff of Benton. County and served on the defendant in Beñtón County; that the defendant has not ¡been served with process in Washington County, and therefore the court was without jurisdiction.
The circuit court held that the suit was brought in the proper forum, but on account of the service in Benton County upon defendant as administrator, the same should be quashed and entered judgment quashing- the service of summons. This appeal is prosecuted to reverse said judgment.
The only question for us to decide is whether an executor or administrator can be sued in a county other than the one in which he was appointed. If an executor or administrator can only be sued in the county in which he was appointed, then the service in this case in Benton County is a proper service. If, however, the action is transitory, so that suit may be brought in any county in which the defendant resides or is summoned, the service of summons in this case in Benton ¡County was improper, and the judgment of the court quashing same is correct.
This court has many times held that actions for personal injuries, caused by negligence, are transitory. St. L. I. M. & So. Ry. Co. v. Haist, 71 Ark. 258, 72 S. W. 893 ; St. L.-S. F. Ry. Co. v. Pearson, 170 Ark. 842, 281 S. W. 910 ; Stewart v. B. & O. R. R. Co., 168 U. S. 445, 18 S. Ct. 105.
This action, being transitory, could be brought in any county where defendant resides or is summoned, unless this action falls within the operation of some statutory provision making it local. Appellant contends that this is in reality a suit against the estate of John Puckett, and that the administrator is only a-nominal party; that § 1176 of Crawford & Moses’ Digest was intended to protect the real defendant and not a mere nominal defendant like an administrator. Appellant calls attention to and relies on 24 C. J., p. 768. The portion of-the paragraph relied on reads as follows: “As a general rule, an executor or administrator cannot sue or be sued in any jurisdiction other than the one .in which he was appointed.” Several cases are cited as sustaining the text. All these cases show that this has reference to the State and not the county.
The first case cited is Vaughan v. Northrop, 15 Pet. (U. S.), p. 1. The court in that case said: “On the other hand, the administrator is exclusively bound to account' for all the assets which he receives under and in virtue of his administration to the proper tribunals of the government from which he derives his authority; and the tribunal of the other States have no right to interfere with or to control the application of those assets, according to the lex loci. Hence it has become an established doctrine that an administrator appointed in one State, cannot, in his official capacity, sue for any debts due to his intestate in the courts of another State; and that he is not liable to be sued in that capacity in the courts of the latter, by any creditor, for any debts due there by his intestate. ’ ’
Another case cited is Bryan v. Curtis, 30 App. (D. C.) 234, and the same principle is announced. Johns v. Herbert, 2 App. (D. C.) 485 ; Plumb v. Bateman, 2 App. (D. C.) 156, are to the same effect. The statute, § 1070, expressly provides that actions for wrongs done to the person may be brought after the death of the wrongdoer against his executor or administrator. We have no statute requiring actions of this kind shall be brought in any particular county. ¡Such actions may therefore be brought in any county in which the defendant resides or is summoned. Section 1176, C. & M. Digest.
“The executors are in a sense trustees, but not of the testatrix, who was no longer trustee or representative, but for the beneficiaries under the will and the heirs and creditors. No rule of law with which I am acquainted gives countenance to the idea that there is an official residence for an executor. In some States the venue of actions is specially declared to be where it would have been necessary to sue the deceased. We have no such law. At common law the executor was sued in transitory actions, where he resided.” Thompson v. Wood, 115 Cal. 301, 47 Pac. Rep. 50 ; McLeod, Ex., v. Shelton & Minor, 42 Miss. 517 ; Osborn v. Lidy, 51 Ohio St. Rep. 90, 37 N. E. 434 ; Harris v. Blatt, Ex., 28 Penn. Dist. Rep. 11 ; Forsee’s Admr. v. Forsee, 144 Ky. 169, 137 S. W. 836.
Under our statute, a person may be sued in any county in which he resides or is summoned. There is no exception made as to administrators, and, since we have no statute requiring- an administrator to be sued in the county where the administration is pending, the general statute applies.
“There is no provision of the statute in this State 'fixing the official residence of administrators and executors, further than that the statute provides that a nonresident shall not be appointed either as an administrator or executor, and the sections of the revenue act to which reference has been made; they have no official residence. * * * If it were the law that an executor may not be sued out of the county issuing letters, an executor residing- in another county might, by remaining out of such county, prevent the allowance of claims not presented until after claim day, as the administration act does not authorize the issuance of summons for the executor on claims presented against the estate after claim day to any other county than the one in which letters were issued. We are not aware of any provision of the statute in Illinois changing the rule at common law in suits against executors.” People’s Bank v. Wood, 193 111. App. 442.
In discussing the question of venue, in suits against administrators, the Georgia Supreme Court said: “The suit does not fall within any of the excepted cases, and is against a sole defendant who does not reside 'in the county where the suit was brought in another county. The venue of such a suit is the county of defendant’s residence. It makes no difference that he is sued as administrator, or that he was appointed administrator by the court of ordinary of the county where the suit is brought. The suit is against the defendant, though he is sought to be made liable only as administrator.” Long v. Stanford, 135 Ga. 823, 70 S. E. 645.
This suit is against the defendant, and, although he is sought to be made liable only as administrator, he is nevertheless defendant, and, there being no special statute requiring suit to be brought in any particular county, the general statute controls, and he may be sued in tbe county of his residence or any county where he may be summoned. Suit in the instant case could have been brought in any county in the State where service of summons could have been had on defendant. It is not required to be brought in the county where the administrator was appointed. This is not a suit to settle the estate of a deceased person, and is not within the provisions of any special statute prescribing where suit must be brought.
In the American Law of Administration, by Woerner, vol. 2, p. 1267, it is said: “The venue or place where an action may be brought against the personal representative is mostly determined or influenced by the statutes of the respective States, but it is thought as a rule the representative has no official residence and may be sued in the county 'where he resides or the administration is pending, or where he is accessible to service.”
We know of no statute or decision in this State contrary to the doctrine announced in the cases cited. Since this suit was brought in Washington County, it was necessary to serve the summons in Washington County., The suit, however, might be brought in any county where service could be had on the defendant.
The judgment of the circuit court is affirmed. | [
-44,
-19,
-12,
108,
9,
-32,
50,
10,
87,
-29,
-28,
-45,
-17,
-63,
13,
41,
-29,
-103,
113,
123,
-59,
-77,
87,
34,
114,
-77,
-119,
71,
-110,
-51,
119,
-42,
76,
32,
-18,
85,
68,
74,
-59,
88,
-50,
0,
-117,
104,
89,
-45,
48,
63,
82,
7,
53,
-97,
-38,
42,
51,
-61,
77,
60,
-7,
-84,
-48,
-80,
-54,
5,
127,
6,
-94,
6,
-102,
3,
88,
26,
-128,
49,
8,
-4,
114,
-90,
-42,
-12,
107,
-103,
8,
-30,
102,
35,
13,
-57,
-96,
-120,
6,
-2,
25,
-90,
-86,
121,
75,
13,
-106,
-99,
123,
16,
79,
-2,
-19,
69,
84,
40,
-127,
-49,
-106,
-95,
5,
-123,
-108,
27,
-29,
79,
52,
81,
-51,
-6,
85,
-57,
114,
-101,
-122,
-74
] |
Conley Byrd, Justice.
The Workmen’s Compensation Commission awarded total disability benefits to ap-pellee Robert L. McCuan. The circuit court affirmed the order of the Commission and appellants, M. D. Thompson and Son Company, et al, appeal contending that there is no substantial evidence to support the Commission’s findings.
It is not disputed that Mr. McCuan was injured in the course of his employment nor that he has suffered some disability. Appellant’s real contention seems to be that if Mr. McCuan is totally disabled, the greater part thereof is due to his age instead of his injury.
The record shows that Mr. McCuan at the time of injury was drawing Social Security and that he attempted to keep his earnings within the prescribed limits for drawing the maximum available benefits. He was injured when a tree fell on him. One medical doctor placed his permanent functional disability at 20%, another at 33 1/3%. One of the doctors testified that when Mr. Mc-Cuan’s age, educational background and spinal fracture were msidered, one would not reasonably expect Mr. McCuan to go back to the work he was doing in a regular and unrestricted capacity at any time in the future.
Appellee testified that he was 68 years of age. He had a little schooling when he was a boy — maybe the third grade. He farmed with mules until 1949 and then with a one row tractor until '63. His work outside of his own farming or as a farm hand consisted of manual labor such as lcjging. Prior to the injury he had done any kind of manual labor he wanted to do. After the injury he was unable to help the wife with the house work. He could not walk a quarter of a mile without stopping to rest.
Other witnesses corroborated Mr. McCuan’s testimony that he was an able-bodied laborer before the injury and unable to do manual labor thereafter.
Mr. Leon Underwood with the Arkansas Rehabilitation Services testified that rehabilitation could provide no beneficial services to Mr. McCuan in view of his age and education.
Thus, from the foregoing, one can readily observe that there was ample evidence to show that Mr. McCuan was an able-bodied, manual worker prior to his injury and that thereafter he was unable to perform any remunerative services. As pointed out in Furlong v. Northwestern Casket Co., 190 Minn. 552, 252 N.W. 656 (1934), the fact that an employee is of failing physical powers and will probably be incapacitated for work in a few years as a result of such weakness does not bar the employee from Workmen’s Compensation benefits if his incapacity to work is the result of his injuries. We cannot here say that there is no substantial evidence to support the Commission’s finding that the injury created the disability. See also Meadowlake Nursing Home v. Sullivan, 253 Ark. 403, 486 S.W. 2d 82 (1972).
Affirmed.
Harris, C.J., not participating. | [
80,
122,
-3,
-98,
26,
-126,
10,
-102,
113,
-121,
-91,
123,
-21,
94,
29,
43,
-29,
125,
65,
107,
-43,
-77,
19,
73,
-37,
-41,
-5,
-60,
-79,
107,
-28,
85,
77,
48,
74,
-43,
-26,
72,
-49,
20,
-118,
-122,
-117,
-17,
121,
0,
56,
110,
-56,
79,
-111,
31,
2,
42,
25,
-49,
44,
44,
75,
35,
-48,
-31,
-118,
5,
-33,
21,
-95,
4,
-100,
11,
112,
14,
-104,
49,
0,
-24,
18,
-74,
-122,
116,
75,
-103,
12,
102,
98,
48,
-99,
-11,
-24,
-72,
14,
-42,
-115,
36,
-109,
25,
27,
67,
-123,
-67,
90,
12,
14,
120,
-12,
13,
22,
108,
3,
-121,
20,
-95,
-19,
96,
-100,
-85,
-17,
-91,
-111,
117,
-52,
-78,
93,
3,
115,
-101,
-105,
-78
] |
Conley Byrd, Justice.
To reverse a ten year conviction for manufacturing and growing marijuana in violation of the Controlled Substance Act, (Acts 1971, No. 590 as amended by Acts 1972, No. 68), appellant Willie Mat Sims contends:
"I. The lower court committed error by allowing the sheriff of Arkansas County and Kenneth R. McKee, supervisor of the narcotics section of the Arkansas State Police to testify as an expert witness when these individuals had not been qualified and in fact were incapable of being qualified as such.
II. The court erred in allowing numerous items of evidence to be introduced without the chain of custody being established.
III. Defense counsel at trial failed to adequately represent the appellant in that:
A. Defense counsel failed to request a jury instruction regarding the appellant’s failure to take the witness stand in his o ra behalf;
B. Defense counsel was generally ineffective in his overall representation of the appellant herein.”
The record shows that Gene Garrison, Sheriff of Arkansas County, had twelve years experience as a law enforcement officer and that as such he had attended a school on narcotics. On May 5, 1972, while searching some woods for a liquor still, he observed the appellant leaving the area. Later in the day, after appellant had departed, he found some marijuana plants. The plants were being grown and cultivated within some wire baskets to prevent the rabbits from eating the plants.
Mr. Garrison kept the plants under surveilance until October 17, 1972. During that time he made some plaster casts of some boot prints made in the field after a rain. On October 17th, Sheriff Garrison obtained a search warrant to search appellant’s home. As a result of that search Sheriff Garrison found several packages of marijuana and some marijuana seed stored as if to be used for the next year’s planting. The sheriff also found that appellant’s boots matched the plaster prints he had taken near the plants earlier in the year.
Appellant signed a confession in which he admitted that he grew the marijuana plants found and the marijuana plants at two other locations.
Sheriff Garrison identified each exhibit taken from appellant’s home and testified that appellant described some of the Marijuana packets taken as selling for five dollars.
Deputy Sheriff Leroy Broadway testified that appellant said: "... after we had talked to him — he said we outsmarted him and if you was going to dance you had to pay the fiddler.”
Kenneth R. McKee, supervisor over the narcotics section of the Arkansas State Police testified that he had been dealing with marijuana violators since 1955. He then identified the plants grown and taken from appellant’s home as marijuana.
POINT I. We find no merit in the contention that the court erred in permitting Sheriff Garrison and Kenneth R. McKee to qualify as expert witnesses to identify marijuana. In the first place there was no objection to their testimony on that basis. Furthermore, their experience would qualify them to identify marijuana by sight and smell. See Miller v. State, 168 Tex. Crim. 570, 330 S.W. 2d 466 (1959), and State v. Franco, 76 Utah 202, 289 P. 100 (1950). In the last mentioned case the court said:
“Objections were made to the testimony of the officers that the stuff contained in the sack and in the cans was marijuana on the ground that the witnesses were not qualified to state what the substance was. The rulings on these objections are assigned as error. In view of the testimony of the officers showing the experience they had in searching for and obtaining marijuana, the court did not err in permitting them to testify. The marijuana seized was introduced in evidence, and is shown to be not an extract or preparation which may be difficult or impossible of characterization without chemical analysis, but the dried leaves, stems, and seeds of the plant. One reasonably familiar with the plant should be able to identify it by its appearance. However, the state very properly did not rest its case as to the character of the drug upon the officers’ testimony. The sack and cans were taken to the state chemist who examined and analyzed their contents, and testified that it was marijuana.”
POINT II. Sheriff Garrison identified each item of evidence introduced that came from the search of appellant’s home. The other evidence he identified as being a picture or replica of that which he had personally observed. Furthermore, the objection now made was not raised in the trial court. Such objections cannot be raised for the first time on appeal.
POINT III. Appellant here contends that his trial counsel failed to adequately represent him. Some of the matters of which he complains involve trial strategy such as asking or not asking for an instruction on a defendant’s failure to take the witness stand in his own behalf. Other contentions are that counsel permitted the sheriff to identify the substances as marijuana without qualifying him as an expert or without requiring a chemical analysis. We find no merit to these contentions. Not only did Sheriff Garrison observe the growth and cultivation of the marijuana plants and make plaster casts of foot prints fitting appellant’s boots but appellant signed a confession admitting that he was growing marijuana. Under those circumstances there is not a lot of help a lawyer can give to a defendant except to ask for mercy on the penalty to be imposed.
Affirmed. | [
49,
-18,
-3,
28,
10,
97,
122,
52,
74,
-29,
-12,
115,
-23,
86,
4,
41,
-95,
47,
84,
105,
-51,
-74,
83,
97,
2,
-13,
-86,
-41,
49,
77,
-99,
-33,
76,
48,
-62,
85,
-26,
24,
-81,
88,
-118,
3,
-103,
122,
24,
2,
56,
63,
38,
15,
49,
22,
-29,
42,
29,
-54,
105,
44,
107,
56,
72,
-7,
2,
29,
79,
20,
-93,
-90,
-98,
7,
-8,
110,
-108,
49,
0,
-24,
-13,
-74,
-126,
68,
79,
-103,
12,
96,
-30,
33,
109,
-27,
104,
-116,
30,
-65,
-99,
-25,
-40,
89,
75,
-60,
-106,
-98,
46,
20,
14,
-16,
104,
-36,
85,
108,
2,
-50,
-44,
-109,
12,
32,
-44,
91,
-21,
39,
16,
113,
-51,
-30,
84,
95,
113,
-101,
-124,
-43
] |
Smith, J.
L. M. Hawkins, doing business as the Hawkins Lumber Company, brought this suit to enforce a materialman’s lien against certain property in the city of Little Bock owned by appellee John Faubel, and certain other persons filed interventions in that suit in which they sought to enforce liens upon the same property as mechanics or materialmen.
The facts out of which the litigation arose, as we find them to be — land there is but little conflict in the testimony — are as follows: John Faubel owned a vacant building in the city of Little Bock. Neal Brasher and H. V. Bennett, who had organized a corporation known as the Mid-South Finance & Investment Company, de sired to open what they called a night club, and had caused plans adapted to this business to be prepared by an architect. Aj lease contract was made for the Faulbel property, beginning July 1, 1929, and extending for five years, at the rental of $250 per month, to be paid monthly in advance, and it was found necessary to alter the architect’s plans to adjust them to the Faulbel property. A brother of Faubel, who represented him in the negotiations leading up to the execution of the lease, testified that Bennett represented to him that certain alterations and repairs would be required to adapt the building to the use proposed, and that the Mid-Houth Finance & Investment Company, hereinafter referred to as the company, had $18,000 in cash to be used for that purpose and to launch and establish the business upon which the company proposed to. enter.
A written contract of lease was executed, which contained the following clause: “Lessee agrees to place said premises in a good state of repair and to overhaul the same at a cost including equipment of not less than twelve thousand dollars ($12,000), the same to be done in keeping and according to plans furnished by Ray Burks, ’ ’ (the architect).
Faubel’s brother did not inquire what part of the $12,000 would be expended for repairs, as distinguished from club equipment, and the purpose of the clause was to consent to the repairs being made.
None of the mechanics or materialmen had any communication with Faubel, the owner, or with his brother, and all the work was completed and all the materials furnished not later than October 20, 1929', and the lease was not placed of record until October 29, 1929.
The court below held that no right to a lien was shown against Faubel’s interest in the property, but that the plaintiff and the interveners were entitled to a lien against the leasehold estate of the company, and, after rendering judgment against the company for the amounts of the respective demands, it was ordered that the com panv’s leasehold interest he foreclosed and sold if those demands were not paid within the time there limited, and the lien claimants have appealed, and in their brief they state the issue to be whether they are entitled to liens upon the fee interest of Faubel under the lease from him to the company.
It is insisted that the right to have these liens declared is established by the opinions of this court in the cases of Whitcomb v. Gans, 90 Ark. 469, 119 S. W. 676, and Wildwood Amusement Company v. Stout Lbr. Co., 178 Ark. 977, 12 S. W. (2d) 911.
We do not think so. In the Gans case the lease provided “said Mrs. Dunldin (the lessee) will make improvements and repairs on the premises costing not less than four hundred ($400) dollars, for which the said Mrs. Gans (the lessor) agrees to reimburse the said Mrs. Dunldin by allowance in rent at the rate of forty ($40) dollars per month for the first ten months of this agreement. ’ ’
In construing this contract the court there said: “It will be observed that appellee (Gans) did not merely consent for Mrs. Dunldin to make improvements at her oiwn expense and for her own enjoyment, but bound Mrs. Dunldin by the contract to make improvements to cost at least $400', and obligated herself to pay for same by crediting' that amount on the rent. In other words, Mrs. Dunldin was to make the improvements and advance the money to pay for same, but was tu be reimbursed out of the rents.”
Under the contract as thus construed the court held that a lien existed for the value of the improvements made. But it was also there said: “We need not go so far as to hold that a lessor may make his property subject to lien merely by consenting for the lessee to make improvements. ’ ’
The question there reserved is the very question now presented for decision.
The case of Wildwood Amusement Co. v. Stout Lbr. Co., supra, did not decide the question reserved in the case of Whitcomb v. Cans. In the Wildwood Amusement Company case the facts were that the amusement company had acquired a lease by assignment, which it contracted to> sell to' Stell & Chapman. The contract of sale obligated the purchasers to erect a dancing pavilion, and to make certain expenditures for other purposes. It was there said: “The title to the whole property was retained in appellant, including all improvements to be erected on the lease by Stell & Chapman, the effect of which was to constitute Stell & Chapman, the agents of the Wildwood Amusement Company for this purpose, as it required them to make these improvements to their property, and which was to remain their property until all the purchase money notes had been paid in full. Under these conditions we think it would have been no different had the Wildwood Amusement Company itself erected these improvements before the sale and required the purchasers to pay therefor in the contract of sale.This court has held that, where property is leased under a contract 'with the lessee to make certain improvements, to be paid by the lessor, the property itself is subject to the lien for materials furnished,” (Citing Whitcomb v. Cans, supra, and other Arkansas cases).
Respective counsel have cited and reviewed a number of cases from other jurisdictions, under the apparent authority of some of which the appellant lien claimants would be entitled to a lien, while other cases cited are to the contrary effect. We do not review or attempt to distinguish these cases, as all of them turn upon the construction of the various statutes under which the liens were claimed.
After reviewing1 a number of these cases counsel for appellants say that “we agree that in this State the lien is effective only when the contract is made with the owner, or his agent, mentioned in § 6096, C. & M. Digest,” the statute under which the right to a lien is claimed.
We think counsel are correct in this admission, and that it is decisive of this case. There was no contract between the lien claimants and Faulbel, or his agent, whereby the demands here sued for were incurred. Faubel’-s brother testified that he made no inquiry as to the part of the $12,000 which would be expended for repairs, or the ¡part to be expended for clulb equipment, and the lease is silent on this subject. Its provisions left the lessees free to distribute the expenditures between the two items as they pleased, if,- indeed, they made the expenditures at all, and there was no provision that even the portion spent for repairs should be repaid by deductions from the rent, as was made in the case of Whitcomb v. Gans, supra. Faulbel’s brother testified that the repairs themselves contemplated by the architect’s plans served only to adapt the building to the peculiar use which the company intended to make of it, and that when the company defaulted in the payment of the rent, as it did do, a considerable expenditure would have been necessary to restore the building so as to adapt it to ordinary uses.
We now decide the question reserved-in the case of Whitcomb v. Gans, supra, and we hold that the lessor does not make his property subject to lien merely by consenting for the lessee to- make improvements. This view accords with the reasons upon which the decisions were based in the following cases: Langston v. Matthews & Lawton, 117 Ark. 628, 173 S. W. 397 ; Daly v. Arkadelphia Milling Co., 126 Ark. 305, 189 S. W. 1053 ; Davis v. Osceola Lbr. Co., 168 Ark. 584, 270 S. W. 960 ; Fine v. Dyke Bros., 175 Ark. 572, 300 S. W. 375, 58 A. L. R. 907 ; Morrilton Lbr. Co. v. Groom, 176 Ark. 520, 3 S. W. (2d) 293. This view also accords with the general rule where there is no statute making the owner liable who merely consents that the improvement shall be made: Sections 1277,1278 and 1280, Jones on Liens (3d ed.); Morrow v. Merritt, 16 Utah 412, 52 Pac. 667 ; Schrage v. Miller, 44 Nev. 818, 62 N. W. 1091 ; Knapp v. Brown, 45 N. Y. 207.
The decree of the court below is correct, and it is therefore affirmed. | [
112,
107,
-40,
-49,
26,
106,
8,
-102,
123,
-21,
53,
87,
-19,
-76,
9,
101,
-30,
93,
-44,
107,
101,
-45,
19,
43,
-46,
-77,
115,
-63,
-80,
77,
-12,
87,
76,
52,
-58,
-41,
-62,
-128,
-51,
-100,
14,
-123,
63,
-32,
-35,
64,
48,
-5,
48,
79,
85,
-114,
-14,
44,
113,
75,
41,
46,
111,
41,
80,
112,
-39,
4,
93,
23,
1,
70,
-104,
-121,
72,
12,
-112,
52,
40,
-31,
99,
-73,
4,
116,
7,
-115,
12,
38,
98,
2,
-87,
-25,
-32,
-100,
31,
-78,
-119,
-89,
-79,
40,
18,
104,
-66,
30,
112,
16,
7,
110,
-26,
21,
25,
108,
-115,
-81,
-108,
-62,
47,
-16,
-99,
-105,
-17,
-125,
37,
113,
-50,
-94,
92,
70,
51,
-101,
-121,
-39
] |
Frank Holt, Justice.
A jury found appellant guilty of assault with the intent to rape and fixed his punishment at five years in the Department of Corrections, after having found him guilty also as a habitual criminal (one previous conviction). For reversal appellant first contends that the trial court erred in refusing to permit the prosecu-trix to be interrogated on cross-examination as to a particular act of immoral conduct; i.e., giving birth to an illegitimate child.
Our cases are somewhat in conflict concerning the admissibility of specific prior acts of immorality. The state cites Pleasant v. The State, 15 Ark. 624 (1854-5), and Jackson v. State, 92 Ark. 71, 122 S.W. 101 (1909), to the effect that in rape or related cases it is impermissible to attack the credibility of the prosecutrix by eliciting on cross-examination evidence of particular acts of unchastity; however, her credibility can be impeached by evidence of her general reputation as to truth and morality. To the contrary is King v. State, 106 Ark. 160, 152 S.W. 990 (1915), an assault with intent to rape case, where we said that it is permissible on cross-examination to ask the prosecutrix if she had had sexual intercourse with someone other than the defendant. See also Lockett v. State, 136 Ark. 473, 207 S.W. 55 (1918). In King v. State, supra, Justice Frank Smith, speaking for a unanimous court, detailed the guidelines. There we held, however, that no prejudice resulted from the refusal to allow an answer to the permissible question inasmuch as it did not “*** affirmatively [appear] that the defendant believed that the witness would make an admission favorable to his defense, if she answered the question truthfully***.” Likewise, in the case at bar, no prejudice was demonstrated inasmuch as the appellant did not comply with this requirement by stating to the court that he believed in a favorable response. The appellant would be bound by the prosecutrix’s answer. Additionally, as abstracted, the appellant made no objections to the court’s ruling and appears to have acquiesced in the court’s action. We deem unnecessary a further discussion of the divergent views.
Appellant next contends for reversal that the trial court erred in refusing appellant’s proffered instruction to the jury that if they found him not guilty of assault with intent to rape they could find him guilty of assault. We must agree with appellant’s contention. We briefly summarize the evidence since the sufficiency to support the verdict of assault with intent to rape is not in issue. The prosecutrix testified that as she left a local night club, after a dispute with her divorced husband, the defendant offered her a ride home. After driving around a short time, he made improper advances toward her, which she refused. Outside town he stopped the car and persisted. She got out and started walking. He threw her into a ditch and attempted to have intercourse with her despite her resistance. When she succeeded in repelling him, he persuaded her to get back in the car, promising he would take her wherever she desired. He then drove her back to the parking lot of the night club where she jumped out of the car. She stated that the appellant never struck or raped her and that the scratches she received were caused by the gravel on the roadside when he threw her down. The appellant did not testify.
We have recently said “*** in order to find error in the refusal of the trial court to give a requested lesser offense instruction it must appear that the offense in the requested instruction was one necessarily contained within the higher offense and the evidence showed the existence of all the elements of the lesser offense.” Flaherty and Whipple v. State, 255 Ark. 187, 500 S.W. 2d 87 (1973). See Caton and Headley v. State, 252 Ark. 420, 479 S.W. 2d 537 (1972), for a thorough analysis of our cases involving lesser included offense instructions. It appears that the offense must be of the same generic class; all elements of the lesser offense must be contained in the greater offense, so that commission of the higher offense must involve commission of the lower; and the charge must contain all substantive allegations necessary to let in proof of the lesser offense.
In the case at bar, all of these elements coexist. Certainly, assault is of the same generic class as assault with intent to rape. Wills v. State, 193 Ark. 182, 98 S.W. 2d 72 (1936). The charge and commission of assault with intent to rape (Ark. Stat. Ann. § 41-607 [Repl. 1964]) inherently involve the element of assault (§ 41-601). The charge of assault with intent to rape is a sufficient allegation to permit proof alone of only an assault.
In the case at bar, it is not questioned that the prose-cutrix’s testimony is sufficient to sustain the verdict of assault with intent to rape. However, the jury has the sole prerogative to accept all or any part of a witness’ testimony whether controverted or not. Therefore, the jury had the absolute right, as trier of the facts, to evaluate the evidence and consider whether only an unlawful assault was committed upon her by appellant or even acquit him. The trial court should have given the instruction relating to the lesser included offense. Flaherty and Whipple v. State, supra, and Caton and Headley v. State, supra.
Appellant next contends that the state did not meet its burden of proof in establishing a previous conviction after the jury found him guilty of assault with intent to rape. The enhancement of the sentence is permitted by § 43-2330. The proof adduced by the state consisted of a penitentiary commitment, identified by the local circuit clerk, reflecting that appellant was previously convicted there of a felony. This evidence was supported by the testimony of the present sheriff who was circuit clerk at the time of appellant’s conviction. This witness also identified appellant as the one named in the document. Appellant asserts that this evidence is deficient inasmuch as neither the penitentiary commitment nor other evidence indicated he was represented by counsel or had waived legal assistance.
An indigent’s conviction prior to Gideon v. Wainwright, 372 U.S. 335 (1962), cannot be utilized for habitual offender purposes if the accused was not provided counsel. Burgett v. Texas, 389 U.S. 109 (1967). Appellant introduced no testimony to establish that he was not represented by counsel. The appellant could have inquired by cross-examination of the witnesses presented by the state or by tendering other proof, without personally testifying, that he was not the person referred to in the com mitment. Henson v. State, 248 Ark. 992, 455 S.W. 2d 101 (1970), and Higgins v. State, 235 Ark. 153, 357 S.W. 2d 499 (1962). Additionally, thexe was no objection to the allegedly infirm previous conviction and we cannot consider it for the first time on appeal.
The judgment is reversed and the cause remanded for the error indicated.
Reversed and remanded.
Harris, C.J., not participating. | [
32,
-18,
-52,
-65,
42,
64,
-94,
24,
3,
-94,
-9,
115,
41,
-38,
12,
112,
-81,
107,
84,
41,
-44,
-73,
23,
-31,
-74,
-14,
115,
-41,
53,
-49,
-26,
-3,
72,
112,
-54,
85,
34,
-54,
-15,
90,
-122,
-116,
-24,
-32,
-46,
-48,
36,
111,
16,
11,
49,
-97,
-5,
106,
29,
-61,
105,
44,
74,
-68,
72,
49,
-108,
-121,
95,
38,
-77,
38,
-68,
3,
-8,
36,
-40,
17,
9,
-4,
115,
-106,
-126,
-42,
79,
-119,
-116,
98,
98,
-79,
-91,
-41,
40,
-127,
-18,
110,
-83,
-90,
-104,
80,
105,
36,
-65,
-39,
68,
112,
39,
-23,
-22,
-51,
85,
104,
0,
-113,
-112,
-79,
-113,
36,
114,
115,
-13,
53,
80,
117,
-51,
108,
92,
87,
120,
-109,
-114,
-76
] |
Jack Holt, Jr., Justice.
This is an action challenging the validity of a tax exempt lease agreement between the City of Stuttgart and First Continental Financial Corporation on the grounds that the lease contains interest bearing evidence of indebtedness in violation of Ark. Const., art. 16, § 1. We find that it does and reverse the trial court.
The appellees, City of Stuttgart and First Continental Financial Corporation, entered into a lease agreement for a garbage truck. Stuttgart chose this method of acquisition because it did not have enough cash to purchase the garbage truck in one year. A sixty month lease with option to purchase seemed a much more viable alternative.
Under the terms of the lease, Stuttgart is obligated to lease the garbage truck for sixty months. However, a nonappropriation clause in the lease provides that the lease shall terminate unless sufficient funds are appropriated and budgeted or authorized by the city. In short, the lease is enforceable only if the city appropriates money for the current fiscal year. In the event of termination of the lease by nonappropriation, the city agrees to surrender possession of the equipment to the lessor and would have no liability beyond the current fiscal year for which funds were appropriated.
This type of municipal lease is authorized under Arkansas Act 508 of 1991, codified at Ark. Code Ann. § 14-76-101 — 108 (Supp. 1991), and specifically under Stuttgart Ordinance No. 1369 entitled: “An Ordinance Authorizing a Lease Agreement Between the City of Stuttgart, Arkansas, as Lessee, and First Continental Financial Corporation, as Lessor, for a Garbage Truck for the City of Stuttgart, Arkansas and Related Accessories; Authorizing and Prescribing Other Matters Pertaining Thereto; and Declaring an Emergency.”
Petitioner, Mason Brown, contends that this lease agreement is void because it violates Ark. Const., art. 16, § 1:
§ 1. Lending credit - Bond issues - Interest bearing warrants.
Neither the State nor any city, county town or other municipality in this State shall ever lend its credit for any purpose whatever; nor shall any county, city, or town or municipality ever issue any interest bearing evidences of indebtedness, except such bonds as may be authorized by law to provide for and secure the payment of the indebtedness existing at the time of the adoption of the Constitution of 1874, and the State shall never issue any interest-bearing treasury warrants or scrip.
(Emphasis added.)
Act 508 of 1991 authorizes governmental units (defined as counties, municipalities, etc.) to enter into:
multiyear lease agreement and purchase contracts of all kinds for the acquisition, refinancing and sale and leaseback of capital improvements, facilities, equipment, goods, supplies, materials and all other types of personal property, real property and services that the governmental unit is authorized by law to acquire; provided that any such multiyear agreement or purchase contract shall contain provisions as follows:
(a) The contract shall terminate without further obligation on the part of the governmental unit at the close of the fiscal year in which it was executed and at the close of each succeeding fiscal year for which it may be renewed; except that the contract may provide for automatic renewal unless positive action is taken by the governmental unit to terminate such contract, and the nature of such action shall be determined by the governmental unit and specified in the contract; and
(b) The contract shall state the total obligation for the rental payments of the governmental unit for the fiscal year of execution and shall further state the total obliga tion for the rental payments which will be incurred in each fiscal year of each renewal term, if renewed. . . .
. . . [A] ny multiyear lease agreement or purchase contract authorized herein may, but is not required to include:
(a) A provision which requires that the contract will terminate at such time as appropriated and otherwise unobligated funds are no longer available to satisfy the obligations of the governmental unit under the contract.
Mason Brown brought this suit as a “citizen and taxpayer of the City of Stuttgart.” He challenged the constitutionality of Act 508 and Stuttgart’s ordinance and the validity of the lease itself.
The lease at issue was entered into on September 1, 1991. The lease provides for sixty monthly payments. At the end of the sixty payments, interest paid will total $11,138.36; principal paid will be $64,026.04. Pursuant to the lease agreement, the city has an option to buy the garbage truck for $10.00 at the end of the sixty months.
At trial Stuttgart mayor, H.E. “Pete” Raines, testified that the lease purchase agreements provide cities with a means to acquire new equipment. For example, Stuttgart had been saving $20,000 a year since 1988 for a new fire truck. When the city began saving, the fire truck cost about $ 105,000. After saving for three years, the cost has risen to between $ 125,000 and $ 130,000. Budgeting problems such as this could be eased by leasing. The mayor also stated that the city had not used lease financing in the past because he thought it was illegal.
Mr. Greg Eden, a bond lawyer, also testified for the defense. As an expert on municipal lease agreements, he drafted the lease agreements used by First Continental Financial Corporation. He contended that a tax exempt lease purchase contract is the cheapest means of acquisition of needed items. Mr. Eden also stated that while a lease expense is considered a current expense, it is not considered to be a debt.
After the hearing, the trial court took the case under advisement. Later it found that although it was suspicious of the statute and the lease as attempts to circumvent the state constitu tion, they were valid and not violative of the state constitution. It is from these findings that Mr. Brown brings this appeal.
We review chancery cases de novo. We recognize the chancellor’s superior position in weighing issues of credibility and will not reverse findings of fact unless the chancellor’s findings are clearly erroneous. Medalist Forming Sys., Inc. v. Malvern Nat’l Bank, 309 Ark. 561, 832 S.W.2d 228 (1992); McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991).
The appellant, Mr. Brown, argues that the lease violates Article 16, § 1, of the Arkansas Constitution. We agree. The words of the Constitution “should ordinarily be given their obvious and natural meaning.” Gipson v. Maner, 225 Ark. 976, 980, 287 S.W.2d 467 (1956). See also City of Hot Springs v. Creviston, 288 Ark. 286, 290, 705 S.W.2d 415 (1986). Article 16, § 1, clearly states, “nor shall any county, city or town or municipality ever issue any interest bearing evidences of indebtedness, except such bonds as may be authorized by law.”
A lease payment schedule is appended to the lease agreement at issue. Mr. Brown alludes to this schedule in his brief, and it has been examined in full. This schedule sets forth the monthly payments for which Stuttgart is responsible under the lease.
This “lease payment schedule” is clearly an amortization schedule complete with a statement of principal and interest to be paid. City of Stuttgart and First Continental assert that because the lease agreement provides for the lease payments to be paid from appropriated funds on hand for the current year, the lease does not constitute interest bearing debt. Yet, the lease payment schedule reflects a plan of payments covering five years in which interest and equity accrue. This being the case, the lease constitutes interest bearing evidence of indebtedness. While it is true that the City of Stuttgart is not bound by the lease if the city cannot appropriate funds, the cancellation of the lease results in lost equity and interest.
City of Stuttgart also contends that because the lease agreement includes the nonappropriation clause, the lease may be deemed to be cancelable without penalty and, therefore, considered to be rent and not interest bearing indebtedness. In support of this argument, it cites Crumley v. Berry, 298 Ark. 112, 766 S.W.2d 7 (1989). In Crumley the appellant entered into a rental with option to purchase contract for a used refrigerator and microwave oven. There was no requirement that she continue the contract beyond one week. However, there was an option to buy the specified property after an agreed number of weeks with the consideration being only that she pay the rental fee for a predesignated number of weeks.
Ms. Crumley made her weekly payments for a time. When she determined that she had made payments equal to the cash price of the items, she stopped making payments and refused to surrender the items arguing that she had paid for them.
In determining that the transaction between Ms. Crumley and the appliance store was a lease and not a sale this court held:
[W]e hold that the sounder view requires as a prerequisite to finding a sale, that there be an obligation to pay the purchase price of the leased goods. There may be exceptions to this general proposition, for example where in spite of the language of the contract, the lessor is clearly led to believe the arrangement is a sale.
Crumley v. Berry, 298 Ark. 112, 117 (1989).
In applying the Crumley analysis to the facts at hand, the lease between the City of Stuttgart and First Continental is clearly seen as a sale. Although the lease agreement allows the “lease” to be canceled without penalty if funds are not appropriated, nonappropriation is the only way out of the contract without penalty. As the Lease Agreement sets out in Article IV, the lease term may terminate upon the following events:
Section 4.02. Termination of Lease Term. The Lease Term will terminate upon the earliest of the following events:
(a) the payment by Lessee of all Lease Payments authorized or required to be paid by Lessee hereunder;
(b) the termination of the Lease in the event of non-appropriation of funds pursuant to Section 8.02 hereof;
(c) a default by Lessee and Lessor’s election to terminate
this Lease under Article XIV.
In the event of default, the Lease Agreement provides that:
Section 14.02 Remedies on Default. Upon the occurrence of an Event of Default, and as long as such Event of Default is continuing, Lessor may, at its option, exercise any one or more of the following remedies:
(a) With or without terminating the Lease, retake possession of the Equipment wherever situated, without any court order or other process of law and without liability for entering the premises, and sell, lease, sublease or make other disposition of the Equipment in a commercially reasonable manner, retaining all proceeds of such disposition, including, if any, funds in excess of the amounts payable by Lessee hereunder holding Lessee liable for the deficiency, if any, between (i) the amounts payable by Lessee hereunder to the end of the then current fiscal year of Lessee and (ii) the purchase price, rent or other amounts paid by a purchaser, lessee or sublessee of the Equipment pursuant to such sale, lease or sublease, after deducting all costs and expenses, including reasonable attorneys’ fees and expenses, incurred with the recovery, repair or storage of the Equipment and other disposition costs; or
(b) Proceed by appropriate court action to enforce performance by Lessee the applicable covenants of this Lease or to recover for the breach thereof including the payment of the Lease Payments due or to become due hereunder, or any deficiency, following disposition of the Equipment between (i) the amounts payable by Lessee hereunder to the end of the then current fiscal year of the Lessee and (ii) the purchase price, rent or other amounts paid by a purchase, lessee, or sublessee of the Equipment pursuant to such sale, lease or sublease, after deducting all costs and expenses, including reasonable attorneys’ fees and expenses, incurred with the recovery, repair or storage of the Equipment and other disposition costs; or
(c) Terminate this Lease and use, operate, lease or hold the Equipment as Lessor, in its sole discretion, may decide.
The penalty for defaulting on this lease agreement is great; thus, absent inability to appropriate funds for the year, the City of Stuttgart is obligated to fulfill this contract to the end of the lease period of five years.
Further indicia of the fact that this is a contract for sale rather than a lease are its tax exempt status, its relation to a bond issue and counsel’s admission in oral argument that the lessee anticipated selling certificates of participation in the leases. Pursuant to section 103 of the Internal Revenue Code, this type lease includes a tax exempt interest component. In order to qualify for this tax exempt status, the lease contract “must constitute an obligation of the governmental unit’s borrowing power under federal tax law____[Although the agreement may take the form of a lease, the contract must contemplate a sale.” Reuven Mark Bisk, State and Municipal Lease-Purchase Agreements: A Reassessment, 7 Harvard J.L. Pub. Pol’y 521, 534 n. 74 (1984).
Lastly, we note this tax exempt lease contract has a direct relationship to a bond issue as the interest component of the “lease” is tax exempt under federal law. See Jon Magnusson, Lease-Financing by Municipal Corporations as a Way Around Debt Limitations, George Washington L. Rev. 377, 391 (1957).
We sympathize with the budgeting problems of municipalities and understand the need to find unique methods of purchasing capital items. However, this lease agreement contains an interest bearing indebtedness counter to Article 16, § 1, of our state Constitution. As such we reverse the findings of the chancery court and hold that the lease agreement is invalid.
Since we conclude that the lease agreement is counter to Ark. Const, art 16, § 1, it is not necessary to consider further the constitutionality of Act 508 of 1991 or Ordinance No. 1369 as argued by the parties.
Reversed and remanded.
Brown, J., concurs.
Hays, J., dissents. | [
118,
-3,
80,
108,
26,
-32,
56,
-102,
-5,
-95,
117,
23,
-25,
-6,
21,
73,
-77,
93,
100,
88,
-41,
-77,
39,
96,
-48,
-77,
49,
92,
-80,
77,
100,
-122,
-116,
5,
-54,
-99,
-122,
73,
-123,
-36,
86,
7,
-101,
100,
-3,
65,
36,
42,
0,
13,
17,
-123,
-32,
46,
25,
99,
105,
44,
77,
33,
-48,
114,
-87,
-123,
95,
23,
-126,
68,
-104,
37,
104,
30,
-108,
49,
12,
-24,
115,
-90,
-122,
124,
41,
-39,
-116,
34,
114,
-126,
5,
-1,
-4,
-88,
6,
-38,
-99,
-122,
-48,
89,
11,
9,
-74,
28,
86,
19,
12,
-2,
102,
-123,
27,
108,
15,
-18,
-44,
-95,
15,
-32,
-46,
1,
-2,
39,
48,
117,
-115,
-42,
93,
22,
59,
26,
-106,
-15
] |
Darrell Hickman, Justice.
The appellant was convicted of the rape of a ten-year-old girl and was sentenced to life imprisonment. On appeal he challenges the sufficiency of the evidence to support his conviction. We affirm the conviction.
The victim was the daughter of the appellant’s former girlfriend. The child testified that in November of 1987, she and her younger cousin accompanied the appellant on a trip to a laundromat. The appellant had brought along other children, who were his relatives.
The appellant told the victim he would take her to the store to get some candy. They left the laundromat alone, leaving the other children behind. After going to the store, the appellant drove to a dead-end street. At trial, the victim gave the following description of the incident:
He put his private spot inside of mine.
He got on top of me. He put his private spot in mine.
Q. When he got on top of you, what did he do then?
A. He started going up and down.
Q. Was he inside of you?
A. Yes.
The following January, the victim’s two-year-old cousin was taken to the doctor and diagnosed as having gonorrhea. Consequently, all other members of the household were tested.. The victim tested positive. At that point, she revealed that the appellant had raped her. The child’s mother testified that her daughter had been withdrawn and had been in and out of the bathroom several times the night of the incident. But until the doctor’s visit, the mother did not know of the rape.
The examining physician testified that the child’s genital area showed no trauma or bruising, but she did in fact have gonorrhea, and the opening in her hymen was suspiciously large, indicating sexual abuse.
After the state’s presentation of the above mentioned evidence, the defense moved for a directed verdict. The trial judge denied the motion.
Stewart’s argument is the state’s evidence was insufficient because the anatomical terms in the rape statute were not used by the victim in describing the incident. Stewart also argues that the state’s witnesses were not credible.
The appellant was charged with having sexual intercourse with a person less than 14 years of age. Sexual intercourse is defined as penetration, however slight, of a vagina by a penis. See Ark. Code Ann. § 5-14-101(9) (1987).
In a rape case, the requirement of substantial evidence is satisfied by the rape victim’s testimony alone. There need not be corroboration. Roper v. State, 296 Ark. 292, 756 S.W.2d 124 (1988). In this case the victim’s testimony is sufficient if it can be said that her use of child-like terms to describe the act of intercourse constitutes substantial evidence.
We have held that, even though a child may not use correct terms for a body part but instead uses his own terms or demonstrates a knowledge of what and where those body parts referred to are, that will be sufficient to allow the jury to believe that a rape occurred. Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986) (child victim asked if appellant touched her with his private parts); see also Harris v. State, 9 Ark. App. 253, 657 S.W.2d 566 (1983) (child victim testified appellant put his “twinkle” in her private place).
Here, the child said that the appellant was “inside” her and was on top of her and, while he was inside her, “started going up and down.” The jury could conclude, without resort to speculation, that this was a child’s description of sexual intercourse.
The appellant’s argument regarding credibility fails because that question is for the jury to resolve, not us. Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988). The jury chose to believe the child and to believe the doctor’s opinion that sexual abuse had occurred.
We find the record contains no other reversible errors. Ark. Sup. Ct. Rule 11 (f).
Affirmed. | [
112,
-20,
-51,
-84,
25,
97,
106,
62,
-45,
-125,
53,
115,
-83,
70,
4,
123,
-78,
-17,
84,
97,
-107,
-77,
23,
-31,
-70,
-6,
58,
-41,
-73,
-52,
-20,
-12,
76,
112,
-58,
-111,
-30,
75,
-1,
-36,
-114,
-113,
-70,
-24,
16,
-126,
36,
55,
68,
15,
53,
-97,
-25,
46,
-106,
-49,
-21,
46,
75,
-67,
88,
19,
120,
23,
125,
52,
-77,
38,
-73,
41,
-16,
60,
-100,
-71,
0,
-24,
123,
-92,
-126,
118,
111,
-119,
-116,
96,
99,
-95,
13,
-10,
44,
9,
111,
127,
44,
-89,
-102,
41,
73,
69,
-65,
-103,
116,
80,
-120,
106,
114,
-52,
29,
100,
-85,
-113,
-108,
-127,
-115,
96,
-104,
57,
-29,
57,
18,
117,
-49,
-16,
84,
85,
120,
-45,
30,
-78
] |
Robert H. Dudley, Justice.
Appellants Wingfield, house builders, constructed a house in a subdivision they w'ere developing in Benton. In May, 1979, they executed a contract to sell the previously unoccupied house to the appellees Page for $52,600. The contract contained the following provision:
13. INSPECTION AND REPAIRS: Buyer certifies that Buyer has inspected the property and is not relying upon any warranties, representations or statements of Agent or Seller as to age or condition of improvements, other than those specified herein. 13A and 13B do not apply to new previously unoccupied dwellings.
A. _X_ Buyer accepts the property in its present condition, subject only to the following: New Warranty for 1 year on New House.
During the first year of occupancy the appellees experienced leaking faucets, cracks in the showers, a sweating glass door and water leaks which required restretching of the carpet. During that period appellants repaired the defects. In June, 1980, appellees discovered large cracks in the exterior walls and doors that would no longer close. They asked appellants to repair the house. By this time, slightly more than one year had passed from the date of the contract and appellants adopted the position that their liability for repairs was absolved by the quoted provision.
Appellees filed suit for rescission in chancery court and then amended the complaint to ask for damages in the amount of $20,000 as the result of the breach of express and implied warranties. The case was then transferred to circuit court where appellants contended that the quoted language was an express one-year warranty which excluded all implied warranties. During the trial the appellees were allowed to increase their prayer for damages to $40,000. The trial lasted two days and appellees introduced evidence by an expert in the field of soil mechanics and foundation engineering that the expansive nature of the soil underneath the house caused flexation of the foundation which literally broke the house. He testified that the condition of the house would continue to worsen as the appellants had used the wrong tye of foundation for the existing soils. In addition, he testified about the proper type of foundation for the soil involved; the availability of the appropriate literature to builders; and the cost of repairing the existing defects. After ten minutes of deliberation the jury returned a verdict for appellees in the amount of $35,579. The Court of Appeals certified the case to this Court as it involves a legal principle of major importance. Rule 29 (4) (b). We affirm the judgment.
The potential remedies of a purchaser of residential property against a builder-vendor have undergone change in recent years. The remedies come within the common law doctrines of tort and contract and the statutory doctrine of strict liability. As a matter of public policy the rule of caveat emptor has been significantly diminished.
Within the purview of contract law the purchaser may seek damages for breach of express or implied warranties. The implied warranty does not rest upon an agreement in fact, as does the express warranty, but arises by operation of law and is intended to hold the builder-vendor to a path of fairness. Under certain conditions the purchaser may assert mistake, misrepresentation or fraud and deceit, repudiate the contract and seek rescission.
Under the law of torts the purchaser may state a cause of action for negligence or if the builder-vendor acts with actual knowledge and an intent to deceive, may file a tort suit for fraud and deceit. Misrepresentation may also be the basis of a tort action.
Finally a purchaser may seek relief under the statutory remedy of strict liability which imposes liability, as a matter of public policy, on the party best able to shoulder it. See Defective Housing: Remedies Available to the First and Subsequent Purchasers, 25 So. Dakota L. Rev. 333 (1980); Breach of Warranty in the Sale of Real Property: Johnson v. Healy, 41 Ohio St. L.J. 727 (1980).
In the case at bar the appellees did not seek to recover under the doctrine of strict liability. See Blagg v. Fred Hunt Co., Inc., 272 Ark. 185, 612 S.W.2d 321 (1981). The case was submitted to the jury on the theories of tort and contract for negligence and breach of implied warranty. Appellants contend that the instruction on implied warranty was erroneously given. Thus, the first point of this case deals only with the contractual remedies for breach of warranty.
In Wawak v. Stewart, 247 Ark. 1093, 449 S.W.2d 922 (1970), an opinion frequently cited in comments and articles, this Court abandoned the doctrine of caveat emptor, because of stated policy considerations, and adopted the view that, by operation of law, a builder-vendor gives implied warranties of inhabitability, sound workmanship and proper construction. That decision was thought to have raised the question of whether proof of faulty workmanship or construction was required to support a recovery under the theory of breach of warranty of habitability. Woods, The Personal Injury Action in Warranty — Has the Arkansas Strict Liability Statute Rendered It Obsolete, 28 Ark.L.Rev. 335, 355 (1974). The question was answered when the concept of implied warranties in residential construction was extended by finding a breach of the warranty of habitability based upon faulty design. Coney v. Stewart, 263 Ark. 148, 562 S.W.2d 619 (1978). See also, Contracts — Implied Warranties in Residential Construction Contracts, 2 U.Ark. Little Rock L.J. 166 (1979). This Court in Coney, supra, emphasized our commitment to the concept of fairness based upon the policy reasons stated in Wawak, supra, and in Blagg, supra, we extended the implied warranty on latent defects to subsequent purchasers under some conditions.
In this case appellants contend that the language “New Warranty for one year on New House’’ created an exclusive express warranty which preempted any implied warranty on the foundation of the home. From that hypothesis they argue that the instruction on implied warranty was erroneous. As authority appellants cite Carter v. Quick, 263 Ark. 202, 563 S.W.2d 461 (1978). In that case we held that when a contract for residential construction contains an express warranty on a subject, that warranty is exclusive and there can be no implied warranty on that subject. Id. at 205-6. However, the case before us differs from Carter because here the quoted contractual provision makes no promise as to a standard of workmanship, construction or habitability. The provision does not purport to be a disclaimer of fitness for habitation. Even if we assume that the merger doctrine did not apply to the contract and warranty deed, we think it plain that the quoted provision did not exclude an implied warranty with respect to the defect now in question, which lay beneath the house and could not have been discovered by even the most careful inspection. See Wawak, supra. Therefore, we have no hesitancy in affirming the trial court in instructing the jury on implied warranty.
In Carter v. Quick, supra, we held that one may not recover under an implied warranty against a builder-vendor of a new home where there is a contractual provision which expressly covers the standard of workmanship. We arrived at this conclusion through reliance on pre-Uniform Commercial Code cases. Under the Uniform Commercial Code, however, warranties are generally construed as consistent with each other unless such a construction is unreasonable. See Ark. Stat. Ann. § 85-2-317 (Add. 1961). We do not review Carter at this time since the exact issue is not before us, but recognize that at least one court has now analogized in a similar case to warranties of goods under the Uniform Commercial Code. Johnson v. Healy, 176 Conn. 97, 405 A.2d 54 (1978); See also, Breach of Warranty in the Sale of Real Property: Johnson v. Healy, 41 Ohio St. L.J. 727 (1980). Some states have held a vendor-builder liable under both express and implied warranties. See: Defective Housing: Remedies Available to the First and Subsequent Purchasers, 25 So. Dakota L.Rev. 333 (1980). The Carter concept of express warranty should be analyzed to see if it embodies all of the elements of a disclaimer. If it does, we note that one commentator advances the argument that a disclaimer of fitness for habitation in the sale of new construction is unconscionable and against public policy. Hashel, The Case For An Implied Warranty of Quality in Sales of Real Property, 53 Geo. L.J. 633, 654 (1965). One court has held: “The public policy of Illinois does not prohibit a waiver or disclaimer of an implied warranty of habitability if such renunciation is sufficiently specific to adequately apprise the buyer of what he is waiving.” Conyers v. Malloy, 50 Ill.App.3d 17, 364 N.E.2d 986 (1977). Assuming the implied warranty of habitability could be properly disclaimed, issues of the disclaimer’s conspicuousness, detail, and reasonableness would merit our consideration. This area of our common law troubles us and we will welcome the oppor tunity to reexamine it. However, the issue is not now before us.
Appellants’ next point for reversal is that the trial court erred in allowing the appellees to increase the amount of their prayer for damages. We find no merit in the contention. The case was originally filed as a suit for rescission. It was then amended into a suit for damages with a prayer for $20,000. On the first day of trial the appellees moved to amend the amount of the prayer to $40,000. The appellants did not claim surprise nor did they ask for a continuance; they only objected to the amendment. The trial court deferred ruling on the motion until all of the testimony was heard in order to determine whether any new issues were injected into the case by the proposed amendment. The trial court stated that if no new issues were injected and “if I see that there has been no prejudice done to the defendant, I will grant a motion to conform your pleadings to the proof. If I feel there is some prejudice that’s been done to the defendant, I will deny the motion.” At the conclusion of the testimony the trial court authorized the amendment of the pleadings to conform to the proof.
The trial court is authorized to amend pleadings or to conform them to the facts proved. ARCP Rule 15. This rule vests broad discretion in the trial court to permit amendment to pleadings and the exercise of that discretion by the trial court will be sustained unless it is manifestly abused. Steed v. Busby, 268 Ark. 1, 595 S.W.2d 34(1980). One seeking reversal on that ground must show the manifest abuse of discretion. Steed, supra. No such abuse has been shown to exist in this case.
Appellants contend that “the trial court erred in not granting appellant’s request for a new trial because the jury verdict, reached in ten minutes, for the exact amount claimed by appellees, was clearly grossly excessive and the result of passion and prejudice.” We find no merit in the argument.
The length of time of jury deliberation is not, of itself, a ground for a new trial. ARCP Rule 59 (a). Here, we have considered it as one of the factors in evaluating whether excessive damages appear to have been given under the influence of passion or prejudice. ARCP Rule 59 (a) (4). Appellees’ expert witness in the field of soil mechanics and foundation engineering testified that the cost of stabilizing the foundation and walls was $32,975 and their witness on the cost of interior repairs testified to $2,604 damage to the interior of the residence. These two figures total $35,579, the precise amount of the verdict. Thus, there is substantial evidence to support the verdict. We cannot say the jury verdict was motivated by passion or prejudice.
Affirmed. | [
-15,
120,
-104,
-20,
26,
34,
58,
-102,
89,
-88,
39,
-33,
-1,
-62,
28,
99,
-92,
57,
64,
122,
-43,
114,
51,
2,
-42,
-109,
115,
77,
-71,
109,
-12,
-33,
76,
49,
-62,
-43,
-26,
-64,
-35,
88,
66,
-121,
26,
70,
-47,
66,
52,
122,
68,
15,
85,
-114,
-77,
46,
29,
-49,
40,
40,
-53,
45,
80,
-71,
-104,
13,
125,
7,
-79,
103,
-98,
-121,
122,
78,
-112,
53,
8,
-8,
115,
-74,
-58,
124,
65,
27,
8,
34,
99,
34,
1,
-17,
-8,
-72,
38,
-34,
-113,
-89,
-111,
120,
-69,
41,
-66,
-98,
116,
16,
21,
122,
103,
-43,
25,
108,
15,
-117,
-108,
-63,
-113,
34,
-103,
10,
-18,
3,
57,
112,
-49,
-30,
93,
99,
27,
-109,
-116,
-38
] |
Robert H. Dudley, Justice.
David Pardon, the owner of a pickup truck, purchased a liability insurance policy on the truck from Southern Farm Bureau Casualty Insurance Company. The policy contained uninsured motorist coverage. Pardon, Christopher Thomas, and a third person were in the truck when it was involved in a one-vehicle accident. Both Pardon and Thomas were killed. Pardon’s estate filed this suit against Thomas’s estate and Southern Farm Bureau Casualty Insurance Company. Pardon’s estate alleged that Thomas was driving Pardon’s truck at the time of the accident, and, as a result, (1) Thomas’s estate is liable in tort because Thomas was negligent in the operation of the truck, and (2) Southern Farm Bureau Casualty Insurance Company is liable in contract under the uninsured motorist coverage provision because Thomas did not have liability insurance and because Pardon was excluded from recovering under his own liability insurance. The trial court granted summary judgment on the contract count against Southern Farm Bureau Casualty Insurance Company. The tort suit against Thomas’s estate remains before the trial court. Pardon’s estate seeks to appeal from the summary judgment granted in favor of one of the two defendants. We dismiss the appeal because the summary judgment from which the estate seeks to appeal is not a final order as to all of the parties, and the trial court did not find a likelihood of hardship or injustice which would be alleviated by an immediate appeal. See A.R.C.P. Rule 54(b) & 3-W Lumber Co. v. Housing Auth. for the City of Batesville, 287 Ark. 70, 696 S.W.2d 725 (1985). The requirements for an order pursuant to A.R.C.P. Rule 54(b) allowing immediate appeal are set out in Austin v. First National Bank of Fayetteville, 305 Ark. 456, 808 S.W.2d 773 (1991).
Appeal dismissed. | [
-80,
126,
-36,
-116,
11,
-32,
50,
42,
117,
-21,
103,
83,
-17,
-58,
21,
35,
-9,
89,
101,
-8,
-11,
-121,
55,
-78,
-13,
-69,
-69,
-60,
-110,
75,
103,
-34,
76,
48,
-118,
85,
-92,
72,
-59,
-40,
-114,
2,
-87,
117,
-7,
89,
-80,
-54,
20,
7,
33,
-113,
-94,
62,
25,
74,
41,
40,
-7,
-91,
-39,
-80,
-118,
7,
127,
5,
33,
4,
-104,
35,
122,
10,
-112,
-79,
0,
-8,
115,
-74,
-122,
68,
107,
-103,
9,
102,
114,
34,
21,
-51,
-100,
-72,
22,
126,
31,
-122,
-104,
57,
59,
8,
-73,
-99,
91,
22,
4,
-20,
-4,
69,
29,
104,
37,
-49,
-108,
-95,
-17,
-80,
-100,
-117,
-17,
5,
-78,
117,
-51,
-30,
93,
71,
127,
-105,
22,
-74
] |
Tom Glaze, Justice.
Appellant Mark Nicholson is an Arkansas licensed real estate broker who brought this suit, alleging fraud, intentional interference with a contractual relationship and breach of contract on the part of Simmons First National Bank (Bank) in Pine Bluff. Nicholson’s suit is premised upon a non-exclusive listing contract he entered into with Public Enterprises Corporation (PEC) whereby he agreed to procure buyers for the purchase of a thirty-seven hundred acre farm named Yellow Bayou Plantation in Chicot County. Nicholson subsequently learned the Bank had the major or real interest in the farm, and asserted that, because of numerous misrepresentations made by the Bank’s officers, Howell Davis and Craig Hunt, Nicholson eventually lost his fee under the aforementioned listing contract. After Nicholson had presented his evidence at trial, the Bank moved for a directed verdict on the three counts, at which time Nicholson voluntarily withdrew his breach of contract claim. The circuit judge directed a verdict in favor of the Bank on the remaining claims of fraud and intentional interference, from which Nicholson brings this appeal. Our review entails determining whether Nicholson’s proof was so insubstantial as to require a jury verdict, if entered in his behalf, to be set aside. See Williams v. Smart Chevrolet Co., 292 Ark. 376, 730 S.W.2d 479 (1987). In reviewing a directed verdict that has been granted, we view the evidence that is most favorable to the party against whom the verdict was granted and give it its highest probative value, taking into account all reasonable inferences deducible from it. Id.
We first describe the title and mortgage history of the farm which is the focus of the transaction involved in this litigation. Before and at the time the parties in this case became interested in Yellow Bayou Plantation, the property had been owned by a Jerry Winemiller under his corporation, Yellow Bayou Plantation, Inc. Winemiller had one mortgage on the plantation in the amount of $2.7 million. The Federal Land Bank held that mortgage. Winemiller later obtained a second loan in the amount of $2 million from the Bank, and the Bank took a second mortgage on the farm to secure its loan.
In 1985, Winemiller contacted the Bank through its officer, Hunt, and informed the Bank that Yellow Bayou Plantation, Inc. was about to go bankrupt. In an effort to avoid the property becoming entangled in bankruptcy proceedings, the Bank suggested that Winemiller transfer title of the farm out of Winemiller’s corporation; however, because the farm was ladened with the two mortgages, the Band was unable to take title to the property because the indebtedness was in excess of the Bank’s legal landing limits. Thus, in an effort to place title to the farm in a reliable third party, the Bank got one of its attorneys, Harley Cox, to agree to take title in the name of his corporation, PEC, and in October of 1985, title was so transferred. At this time, Federal Land Bank was about to foreclose on its first mortgage, and the Bank successfully induced FirstSouth F. A. to acquire the federal loan to avoid the foreclosure. This was the state of the title and mortgage history when this farm went on the market for sale and Nicholson first became involved. We now review the evidence necessary to determine whether it is sufficient to support Nicholson’s fraud and intentional interference tort claims against the Bank.
Through a friend, Joey Hill, Nicholson and his father learned that two investors, David Stokes and Paul Piper, might be interested in buying the Yellow Bayou Plantation, and this led Nicholson to contact Bill Bridgforth, a Pine Bluff attorney, who prepared a listing contract naming PEC by E. Harley Cox, Jr., President, as the owner of the farm. Bridgforth and Cox were partners in the same law firm, and Cox was also attorney for the Bank. The contract initially provided a listing price of $4.5 million and an agent’s fee of ten percent if the farm was “sold or otherwise disposed of’ by Nicholson or any other person, including the owner, during the listing period.
After the listing contract was signed on November 22,1985, Bridgforth introduced Nicholson to Bank officers Davis and Hunt, who informed Nicholson that PEC was “a friendly corporation that the Bank owned” and that the Bank held its acquired properties in that corporation. Davis and Hunt told Nicholson to work only with them concerning the sale of the plantation and that he would receive his commission from the Bank. Davis, Hunt and Nicholson then negotiated an amended listing contract reducing the sale price to $4 million and a fee of five, rather than ten, percent. Bridgforth prepared the amended contract, and it was signed by Chris Coker, who was authorized to sign for PEC in Cox’s stead.
Stokes and Piper later submitted an offer dated December 17,1985, naming the Bank as seller; they offered to buy the farm for “$4 million contingent upon Yellow Bayou Corporation having a $1.2 million tax loss available and assumable.” Stokes and Piper paid $200,000 earnest money to the Bank on December 19, 1985, which Hunt accepted in the Bank’s behalf. Nicholson testified that, when these transactions took place, Hunt said, “We have a deal.” Nevertheless, both Bridgforth and Hunt told Nicholson that the offer and acceptance could not be signed at that time because such an action would jeopardize the tax credits. Because no one knew whether the tax advantages sought by Stokes and Piper were available, the Bank contacted its tax attorney, Patrick Burrows, for guidance. On January 9, 1986, Burrows wrote Piper the following:
Dear Mr. Piper:
Our client, Simmons First National Bank, and the present and proposed stockholders of Yellow Bayou Plantation, Inc. offer for sale to you 100 % of the outstanding stock of Yellow Bayou Corporation for the sum of $4,000,000 cash ... it appears that the net operating loss carry-forward of the corporation at its fiscal year end, March 31,1986, will approximate $1,200,000.
On January 20, 1986, Piper’s attorney rejected the proposal set forth in Burrows’ January 9 letter. The Bank then refunded Stokes and Piper their earnest money.
Nicholson said that he learned the offer had gone sour, and that Davis and Hunt directed both Nicholson and Hill not to talk to Stokes or Piper thereafter. Davis and Hunt purportedly said that they would not sell the farm to Piper. Nicholson’s listing contract expired on January 22, 1986.
Between January 28 and February 6,1986, Hunt contacted Mr. Piper concerning whether any of the several foundations controlled by Piper would be interested in investing in the first mortgage held by FirstSouth on the farm in order to give the Bank more time to liquidate the property. Hunt further stated that it was the Bank’s hope that the property could sell for enough money to pay off the first mortgage and still realize something on the Bank’s second mortgage. Hunt explained that the Bank was attempting to get the most money it could out of the deal and to cut its losses.
Hunt’s contact resulted in the Bank and Piper, on February 6, 1986, closing a transaction whereby (1) Piper purchased the first mortgage held by FirstSouth for $2.7 million, for which Piper would receive 12% interest, and (2) Piper granted a one-year option to the Bank to purchase the $2.7 million first mortgage. The option also included an agreement for the Bank to release its second mortgage if it failed to purchase Piper’s first mortgage. Mr. Piper testified that the transaction was conceived by Harley Cox, who prepared the documents for the Bank and Piper. Subsequently, the Bank entered into other listing contracts to sell the property, but no sale occurred and no potential purchaser was located.
The Bank failed to make any payments on Piper’s note, and on February 16, 1987, Pipe called the note. On February 24, 1987, in an attempt to bypass lengthy and costly foreclosure proceedings, Cox as president of PEC, conveyed title to the farm to Piper by executing a “Deed in Lieu of Foreclosure.” Pursuant to their agreement, the Bank then released its second mortgage to Piper. Nicholson never received any contractual “Agent’s Fee.”
We now address Nicholson’s fraud claim against the Bank, and in doing so, are mindful that fraud is never presumed but must be affirmatively proven by one alleging it by testimony which is clear and convincing. Interstate Freeway Serv., Inc. v. Houser, 310 Ark. 302, 835 S.W.2d 872 (1992). To prove fraud or the tort of deceit, Nicholson was required to show (1) a false representation of a material fact, (2) knowledge or belief on the part of the person making the representation that the representation is false, (3) an intent to induce the other party to act or refrain from acting in reliance on the misrepresentation, (4) a justifiable reliance on the misrepresentation, and (5) resulting damage. Morris v. Valley Forge Insurance, 305 Ark. 25, 805 S.W.2d 948 (1991).
The trial court found that Nicholson failed to show any of the misrepresentations made by the Bank were material. Nicholson claims that Bank officers Davis and Hunt misrepresented that (1) the Bank owned PEC and its acquired property, (2) the Bank was “the boss” and Nicholson would be working for the Bank, (3) Nicholson would receive his commission or fee from the Bank and (4) although Hunt knew better, Hunt never informed Nicholson that the Bank was not the seller. The trial court held that, assuming these claimed misrepresentations were true, none of them affected Nicholson’s decision to procure a buyer under the terms of the parties’ listing contract. Indisputably, Nicholson already had Stokes and Piper as potential pur chasers and had executed a listing contract on the thirty-seven hundred acre farm with PEC before Hunt and Davis made any of the aforementioned misrepresentations. Nicholson failed to show how the officers’ misrepresentations prevented him from finding a buyer for the farm or how such statements may have affected the only offer made, which was the $4 million plus $1.2 million tax credit contingency offer from Piper. Mr. Piper, who was called as a witness for Nicholson, testified that he simply was not willing to pay “a straight four million dollars for that property.”
The trial court also discounted the materiality of any of the Bank’s misrepresentations by pointing out that the Bank made every effort to meet Piper’s contingency offer by their attorney’s January 9 letter proposing an alternative whereby Piper would purchase Yellow Bayou Plantation Corporation. The trial court noted that it was the Bank’s benefit for the deal with Stokes and Piper to be consummated because the $2.7 million first mortgage on the farm was never in jeopardy of being satisfied; however, the second mortgage, held by the Bank, would not be fully satisfied, but the Bank could at least cut some of its losses if the deal with Piper was consummated. Again, Nicholson offered no proof on how Hunt’s and Davis’s false statements in any way impaired his contract rights or decisions in this matter.
Although the trial court’s decision was premised on the materiality issue discussed above, we also believe Nicholson failed to show the claimed misrepresentations caused his damage. The parties’ listing contract provided that Nicholson would be paid a fee if the property was sold or “otherwise disposed of by the owner,” after the expiration or termination of the listing period when such a disposition of the property resulted from information obtained from Nicholson. While the property was never sold, the farm was clearly “otherwise disposed of” when PEC eventually deeded the property to Piper. Under the terms of the listing contract, Nicholson was entitled to a fee. While he initially filed suit against Cox, PEC, Hunt and Davis alleging breach of contract and fraud, Nicholson dismissed those claims and limited his actions to the torts of fraud and intentional interference against the Bank. While Nicholson now claims it dismissed the breach of contract claim because PEC and Cox were “turnips,” the record simply fails to support such an assertion. In sum, Nicholson had contractual claims for his fee and failed to pursue them, but, most important here, he again has failed to show that any of the Bank’s misrepresentations caused him to lose either his commission or his cause of action to obtain it from the parties responsible under the listing contract.
In his second argument, Nicholson argues the Bank intentionally interfered with his contractual relationship. The elements necessary to prove such an action are as follows: (1) existence of a valid contractual relationship; (2) knowledge of that relationship or business expectancy on the part of the interferer; (3) intentional interference causing breach or termination of the relationship or expectancy; and (4) resulting damage to the party whose relationship or expectancy was disrupted. Stebbins and Roberts, Inc. v. Halsey, 265 Ark. 903, 582 S.W.2d 266 (1979); Navorro-Monzo v. Hughes, 297 Ark. 444, 763 S.W.2d 635 (1989).
In Navorro-Monzo this court stated:
... a successful claim for interference with a contractual relation must allege and prove that a third party either did not enter into or failed to continue with claimant as a result of the unauthorized conduct of the defendant . . .
297 Ark. at 447, 763 S.W.2d at 636.
Nicholson contends the Bank interfered with his contractual relationship in the following two respects: (1) when the Bank’s attorney, Burrows, wrote Piper on January 9, 1986, without informing Nicholson, that the “tax loss contingency” part of Piper’s offer could not be met solely through the conveyance of the farm property, but could only be realized by Piper’s purchasing the stock of Yellow Bayou Plantation Corporation; and (2) when the Bank contacted Piper after the listing agreement expired to request that Piper purchase FirstSouth’s first mortgage and in obtaining a one-year option to buy the first mortgage.
The answer to Nicholson’s first contention under this point is found in our earlier discussion pertaining to the clear purpose of Burrow’s January 9 letter to Piper. The evidence is uncontradicted that the Bank’s tax attorneys were attempting to meet Piper’s contingency offer by proposing Piper buy the stock of Yellow Bayou Plantation Corporation. The Bank’s action in this respect was made “in furtherance” of the terms of the parties’ listing contract, not “in interference” with them. If Piper had accepted the proposal, the farm would have been reconveyed by PEC to the corporation and such a sale and disposition of the property would have entitled Nicholson to his fee under the listing contract.
Nicholson’s second contention focuses on the Bank’s contact of Piper after the listing contract expired and its officers’ directive that Nicholson and Hill should not talk to Piper or Stokes. Once again, we mention that, irrespective of Hunt’s or Davis’s false statements, Nicholson’s agreement with PEC was still in effect even after the listing period expired. As we discussed in Nicholson’s fraud claim, Nicholson was entitled to a commission even after the listing period expired if the property was “otherwise disposed of’ by the owner when such disposition resulted from information obtained through Nicholson. The Bank gained knowledge of Piper through Nicholson, and while no sale was ever made to Piper and Stokes, PEC eventually transferred title of the farm to Piper when the Bank’s efforts to sell the property fell through. The disposition of the property to Piper triggered Nicholson’s rights under the contract, making Nicholson entitled to a fee. Obviously, if Nicholson was entitled to his contractual commission then it follows that no intentional interference with his contract rights existed. Put simply, Nicholson failed to show PEC breached their contract by refusing to pay any fee or commission, much less that the Bank’s interference caused Nicholson to lose such fee expectancy under the PEC/Nicholson contract. As a consequence, Nicholson failed to meet both the elements (3) and (4) in his attempt to prove tortious interference with a contractual relation.
The trial judge did not err in granting the Bank’s motion for directed verdict and we affirm.
Holt, C.J., Newbern and Brown, JJ., dissent. | [
114,
-18,
-39,
44,
-104,
-32,
56,
-70,
82,
-62,
-25,
-45,
-31,
66,
28,
105,
-28,
73,
117,
96,
-106,
-77,
39,
96,
-46,
-69,
88,
-59,
-68,
79,
-28,
-44,
76,
28,
-54,
-41,
-30,
-118,
-35,
88,
78,
-123,
43,
100,
-39,
65,
48,
-17,
4,
79,
85,
-115,
-13,
44,
53,
75,
73,
46,
-5,
45,
-48,
56,
72,
13,
123,
7,
49,
101,
-104,
67,
-38,
8,
-112,
-79,
0,
-23,
123,
-74,
-114,
84,
47,
25,
12,
38,
99,
18,
1,
-113,
-60,
-120,
39,
-1,
-115,
-121,
-48,
72,
3,
79,
-65,
-108,
94,
20,
-122,
-4,
114,
-107,
31,
104,
3,
-50,
-44,
-93,
-83,
-8,
-104,
19,
-21,
71,
48,
113,
-49,
-30,
93,
7,
115,
-101,
-114,
-73
] |
Humphreys, J.
This is an appeal from a judgment for $250 rendered in the Second Division of the Circuit Court of Pulaski County in favor of appellee against appellant for an alleged malicious prosecution of appellee by appellant in the municipal court of Little Rock for the larceny of an automobile.
According to the undisputed evidence, Paul S. Freeman, vice president of appellant, obtained information from its assistant bookkeeper, Fred McKnight, on the morning of the 16th of July, 1930, that appellee had taken a coupe, Chrysler automobile 60, from its place of business on Saturday night, July 13, 1930, without permission, and that the employees, after searching, had been unable to locate the car or automobile. Freeman made an investigation and ascertained that a salesman had seen appellee with the car Saturday night the 13th. He immediately sent out employees to search for the car, and, not finding it, revealed all the facts in its possession to appellant’s regular attorney, who stated in his opinion a crime had been committed by appellee, and advised that the matter be reported to the authorities. Freeman instructed McKnight to ask the police authorities if they wanted to pick up the car, and they refused to act without a warrant whereupon Freeman instructed McKnight to go to the prosecuting attorney and state all the facts in their possession to him. McKnight obtained an audience with Kenneth W. Coulter, deputy prosecuting attorney for Pulaski County, and stated all the facts in their possession to him. Among other facts, McKnight stated to the deputy that appellee had been discharged by appellant and was not in its employ at the time he took the car, and that he did not take same with the permission of the officials of O. Gr. Walker, who was in'charge of the used car department. The deputy prosecutor said that the facts disclosed were sufficient upon which to base a charge for larceny against.appellee, and that he would prefer such a charge against him. McKnight. gave the deputy prosecutor the motor and serial number of the car and the names of the witnesses. The deputy filed information against appellee, who was arrested at 2:30 p. m. on the 16th. At 5:30 p. m. on the same day the car was found by one of appellant’s employees and brought to its place of business, and Freeman immediately notified the authorities that the car had been recovered. Appellant was not notified of appellee’s arrest nor when the case would be tried. On the morning of the 17th appellee was discharged for failure to prosecute and soon thereafter instituted this suit.
It is a complete defense to an action for malicious prosecution if the defendant in the action instituted the prosecution upon the advice of a prosecutor or counsel learned in the law after truly laying all the facts in his possession before him or them. Randleman v. Johnson, 125 Ark. 54, 187 S. W. 626 ; Hall v. Adams, 128 Ark. 119, 193 S. W. 520. The reason of this rule is that, when one truly lays all the facts in his possession before a prosecutor or an attorney and follows his or their advice, the law conclusively presumes the existence of probable cause, the lack of which is a necessary element in a suit for malicious prosecution. St. L. I. M. & S. Ry. Co. v. Wallin, 71 Ark. 422, 75 S. W. 477 ; L. B. Price Mercantile Co. v. Cuilla, 100 Ark. 316, 141 S. W. 194 ; Price v. Morris, 122 Ark. 382, 183 S. W. 180. In the instant ease this defense was invoked by appellant, and, according to the undisputed evidence, all facts within the knowledge of its officials were truthfully disclosed to its own attorney and the deputy prosecuting attorney. It is argued that appellant’s officials untruthfully informed its attorney and the deputy prosecuting attorney that appellee took the car without permission and that he was not in the employ of appellant at the time he took same. Appellee testified that he took the car with the permission of O. G-. Walker, and that he himself was in the employment of appellant when he took same. But the undisputed testimony reflected that the officials had been informed by Mr. Walker that he did not give appellee permission to take the car and knew nothing pf appellee’s re-employment by Mr. Walker after they discharged him on July 5th prior to the date the car was taken. In other words, the undisputed evidence shows that the officials of appellant acted in good faith by disclosing all the facts in their possession to its attorney as well as the deputy prosecuting attorney.
In view of the undisputed evidence in support of its defense, the trial court should have instructed a verdict in favor of appellant as requested.
The judgment is therefore reversed, and the cause of action is dismissed. | [
116,
-20,
-8,
44,
58,
-64,
58,
58,
82,
-121,
53,
-45,
-83,
71,
20,
49,
-29,
125,
85,
105,
-59,
-78,
3,
96,
-46,
-77,
-7,
-43,
-73,
75,
-28,
-12,
13,
48,
-54,
-107,
70,
-54,
-91,
92,
-118,
-96,
59,
108,
-39,
88,
36,
-88,
112,
75,
97,
-98,
-26,
42,
30,
74,
109,
44,
111,
46,
-16,
-14,
-117,
13,
63,
22,
-127,
100,
-104,
1,
-8,
28,
-104,
48,
16,
105,
115,
-90,
-126,
-44,
111,
-103,
8,
38,
98,
10,
-119,
-25,
-84,
-120,
6,
-6,
-97,
-90,
48,
121,
11,
65,
-98,
-99,
107,
16,
13,
-4,
-4,
21,
84,
108,
3,
-50,
-48,
-109,
-87,
96,
-106,
27,
-21,
41,
54,
113,
-50,
-30,
93,
6,
50,
-101,
-122,
-109
] |
David Newbern, Justice.
This is the second appeal in this case which arose when the Department of Human Services (DHS) received a report of possible child abuse committed by John Heath, Principal at Marion Middle School. The report stated Mr. Heath had hit a student three times on the buttocks with a wooden paddle. Investigation confirmed the paddling occurred, and a DHS report concluded there was “some credible evidence of child abuse.” In addition, a box was checked on the DHS report form indicating that the report of child abuse was “substantiated.” Mr. Heath appealed through administrative channels without success and then to the Circuit Court. The Court found the allegation unsubstantiated and ordered that Heath’s name be immediately expunged from DHS records. DHS appealed, contesting only the Trial Court’s determination that the law requiring even unsubstantiated allegations be retained in a DHS registry for three years was unconstitutional.
We remanded the case for notification of the Attorney General pursuant to Ark. Code Ann. § 16-111 -106 (1987) in view of constitutional challenge. Arkansas Department of Human Services v. Heath, 307 Ark. 147, 817 S.W.2d 885 (1991). The case is here again in the same posture, the Trial Court having ordered DHS to expunge from its central registry the entry regarding Mr. Heath. DHS does not appeal from that part of the Trial Court’s order finding that the report was “unsubstantiated.” While the record does not disclose the manner in which DHS will alter its record to show that the allegation is unsubstantiated, we must assume that it will do so. Arkansas Code Ann. §§ 12-12-505 and 12-12-506 require DHS to treat “unfounded” reports differently from others. The only argument in this appeal is about the constitutionality of a statutory scheme by which DHS is required to retain “unsubstantiated” reports in its central registry.
Mr. Heath contends the statutory scheme by which such a record of an unsubstantiated allegation of child abuse is retained violates his right to due process and equal protection of the laws as well as the separation of powers doctrine and his right to privacy. DHS argues the Court erred in ordering the record concerning the allegations against Heath removed from the registry as the statute does not usurp any judicial function or violate constitutional rights.
Because there is no constitutional violation, we reverse and dismiss that part of the ruling directing expungement of the DHS records.
1. The statutes
We agree with the DHS contention that the statutes prohibit expunging the record of an allegation of child abuse determined to be unsubstantiated from the central registry for a period of three years. Arkansas Code Ann. § 12-12-505 (Supp. 1991) provides that records in the DHS central registry of unfounded child abuse allegations be destroyed at the expiration of three years. While that provision might seem to permit some discretion to destroy a record prior to the passage of three years, we conclude the General Assembly intended such records be kept for the entire period. A provision requiring immediate expungement of a record not supported by “credible evidence” appearing in Act 397 of 1975 was repealed in favor of the current provision by § 17 of Act 1208 of 1991. The repeal of that provision in combination with the provision requiring expungement after three years reveals the General Assembly’s intent that the information be kept for three years.
2. Separation of powers
Mr. Heath argues the statute violates the separation of powers doctrine and usurps judicial functions as it restricts the inherent power of a court to fashion an appropriate remedy and order expungement of a record. He cites United States v. Dooley, 364 F. Supp. 75 (E.D. Penn. 1973) and United States v. Linn, 513 F.2d 925 (10th Cir. 1975).
In the Dooley case, the defendant sought to have arrest records eradicated following an acquittal. The Court refused, indicating that such a determination was a legislative function even though it expressed grave concern with the potential for an invasion of the privacy of the individual if the information were to fall into the wrong hands.
The Linn case involved an attorney acquitted of all charges in a 59-count indictment. He sought expungement, but the Court declined, concluding that acquittal alone, without a showing that the records had been or would be improperly or intrusively used, was not sufficient to require expungement.
The cases are not helpful to Mr. Heath’s cause. Arkansas Code Ann. § 12-12-506 (Supp. 1991) limits the disclosure of unfounded allegations to DHS offices for purposes of the administration of adoption, foster care, children’s protective services programs, or child care licensing programs. There can be no further disclosure of this information, and there has been no showing that the retained information is being misused or that that will occur in the future. We agree with DHS that there has been no invasion of the judicial function by this enactment.
3. Due Process
Neither the statute nor DHS policy provides a process by which one wrongfully accused of child maltreatment may have one’s name removed from the registry prior to the expiration of three years. Mr. Heath argues that this lack of process to deal with records concerning unfounded claims, coupled with potential negative consequences resulting from possible wrongful dissemination, renders the legislation violative of his right to due process of law.
It is Mr. Heath’s burden to show that the Act is unconstitutional, Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991). This is an especially heavy burden as legislation is presumed not to be unconstitutional. First National Bank v. Arkansas State Bank Comm’r, 301 Ark. 1, 781 S.W.2d 744 (1989).
We made it clear in the First National Bank case that one challenging legislation as a deprivation of due process of law must show that a property interest is at stake. That was also one of the holdings in Board of Regents v. Roth, 408 U.S. 564 (1972). Mr. Heath argues the potential injury to his reputation constitutes a deprivation of a property interest. The law does not support his claim.
The Supreme Court in Paul v. Davis, 424 U.S. 693 (1976), was confronted with the publication of Davis’s name on a Louisville police flyer with names and photographs of active shoplifters. Davis complained that the infliction by state officials of a “stigma” to one’s reputation was an infliction of harm actionable under 48 U.S.C.S. § 1983 and the Fourteenth Amendment. The Court reversed the Sixth Circuit Court of Appeals and stated:
The second premise upon which the result reached by the Court of Appeals could be rested—that the infliction by state officials of a ‘stigma’ to one’s reputation is somehow different in kind from infliction by a state official of harm to other interests protected by state law—is equally untenable. The words ‘liberty’ and ‘property’ as used in the Fourteenth Amendment do not in terms single out reputation as a candidate for special protection over and above other interests that may be protected by state law. While we have in a number of our prior cases pointed out the frequently drastic effect of the ‘stigma’ which may result from defamation by the government in a variety of contexts, this line of cases does not establish the proposition that reputation alone, apart from some more tangible interests such as employment, is either ‘liberty’ or ‘property’ by itself sufficient to invoke the procedural protection of the Due Process Clause. As we have said, the Court of Appeals, in reaching a contrary conclusion, relied primarily upon Wisconsin v. Constantineau, 400 U.S. 433 (1971). We think the correct import of that decision, however, must be derived from an examination of the precedents upon which it relied, as well as consideration of the other decisions by this Court, before and after Constantineau, which bear upon the relationship between governmental defamation and the guarantees of the Constitution. While not uniform in their treatment of the subject, we think that the weight of our decisions establishes no constitutional doctrine converting every defamation by a public official into a deprivation of liberty within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment. 424 U.S. 701, 702.
The Constantineau case involved a Wisconsin statute providing that designated persons could forbid the sale of liquor to persons who exposed their families to want or became dangerous to the peace. Constantineau had been posted as one of those persons by the chief of police of Hartford. The District Court granted an injunction against enforcement of the statute finding it unconstitutional as it provided no process to the individual so labeled, and the Supreme Court upheld the injunction saying, “We agree with the District Court that the private interest is such that those requirements of procedural due process [notice and opportunity to be heard] must be met” and “[o]nly when the whole proceedings leading to the pinning of an unsavory label on a person are aired can oppressive results be prevented.”
Clearly the import of the Paul case was to limit the holding in the Constantineau case to its facts and to make it clear that a potential injury to reputation did not involve a due process violation. The Paul case is controlling, and it provides no support for Mr. Heath’s claim.
In addition Ingraham v. Wright, 430 U.S. 651 (1977), reveals that there must be a property interest coupled with a lack of procedural safeguards to lift a denial of notice and hearing to the level of a constitutional deprivation. In the Ingraham case, the Supreme Court considered the matter of corporeal punishment in a public school. The Court found there was a liberty interest but concluded, “In view of the low incidence of abuse, the openness of our schools, and the common-law safeguards that already exist, the risk of error that may result in violation of a schoolchild’s substantive rights can only be regarded as minimal.”
Mr. Heath seeks to distinguish the Paul case because the Court emphasized that Davis had a remedy in state tort law, which is not available in this case, and because the Court noted that defamation accompanied by an infringement of a right or status could raise a constitutional claim. While it is true that these facts were noted, it is critical to our inquiry to recognize that Davis had a state remedy because the charges of shoplifting against him had been dismissed, and he had not been found to be a shoplifter. The information in the flyer was untrue, thus establishing the basis for a defamation claim. Again, assuming the DHS central registry now reflects the finding of the Trial Court that the report is “unsubstantiated,” a finding which has not been appealed, nothing in the central registry listing concerning Heath is untrue.
Also cited is Goss v. Lopez, 419 U.S. 565 (1975). The case involved an Ohio public school system which permitted suspensions without notice or hearing either prior to or within a reasonable time after the suspension. The case is inapplicable for several reasons, the primary one being that the Court recognized first that the students had a constitutionally protected property interest in their entitlement to a public education, the direct deprivation of which was at hand.
Another significant reason the Goss case does not help is that the portion of the case on which Mr. Heath relies is a direct quotation from the Constantineau case, the effect of which was limited by the Paul case. While the Goss case also cites the Roth case for the same proposition, it is again the Constantineau case to which the quoted language must be attributed.
DHS cites Codd v. Velger, 429 U.S. 624 (1977), a per curiam opinion involving reference in a former police officer’s personnel file to a possible suicide attempt. The District Court had found no property interest in continued employment and no stigmatization which implicated constitutional interests, but the Court of Appeals found there to be a stigma problem. The Supreme Court reversed, concluding at pp. 628 and 629:
Even conceding that the respondent’s termination occurred solely because of the report of an apparent suicide attempt, . . . respondent has at no stage of this litigation affirmatively stated that the ‘attempt’ did not take place as reported. The furthest he has gone is a suggestion by his counsel that ‘[i]t might have been all a mistake, [i]t could also have been a little horseplay.’ This is not enough to raise an issue about the substantial accuracy of the report. Respondent has therefore made out no claim under the Fourteenth Amendment that he was harmed by the denial of a hearing, even were we to accept in its entirety the determination by the Court of Appeals that the creation and disclosure of the file report otherwise amounted to stigmatization within the meaning of Board of Regents v. Roth.
In this case there is no doubt the information Mr. Heath seeks to have expunged, i.e,, a report of suspected child abuse now marked “unsubstantiated,” is true. He has shown no invasion of a property interest. The statute does not violate Mr. Heath’s right to due process of law.
4. Equal protection
Mr. Heath next argues the statute violates his right to equal protection of the laws by creating a classification of persons which is wholly arbitrary. J.W. Black Lumber Co. v. Arkansas Pollution Control & Ecology Dep’t., 290 Ark. 170, 717 S.W.2d 807 (1986). He argues the classification created discriminates between those who have been accused and found innocent of child maltreatment and those who have never been accused. The accused and the non-accused are both innocent, but the accused have their names placed in the central registry. DHS agrees that a classification may exist but argues that the “any rational basis” test of Arkansas Hospital Association v. Arkansas State Board of Pharmacy, 297 Ark. 454, 763 S.W.2d 73 (1989), is satisfied because the maintenance of the names of persons against whom unfounded accusations have been made permits them to substantiate malicious reporting violations by tracking the names of those who frequently make reports which prove to be unfounded. It also points out that maintaining the names of accused persons against which unfounded reports have been made is necessary to establish patterns of continuous and cumulative injuries which, in isolation, would not rise to the level of substantiated abuse. We agree that both these reasons provide a rational basis for maintaining unfounded accusation records in the central registry.
5. Privacy
DHS argues that the Supreme Court has not extended the right of privacy to matters relating to the government collecting and retaining data concerning private citizens. We agree that is the essence of the decision in Whalen v. Roe, 429 U.S. 589 (1977). The case involved the collection of data by New York concerning the dispensing of Schedule II drugs. In the time in which the statute had operated the information had been utilized twice. The petitioners, patients and physicians, argued the information was unnecessary and invaded their right to privacy. On the necessity issue, the Court said, at p. 597, “State legislation which has some effect on individual liberty or privacy may not be held unconstitutional simply because a court finds it unnecessary, in whole or in part.” On the privacy issue the Court was somewhat more reticent and stated, at pp. 605 and 606:
The right to collect and use such data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosures . . . nevertheless New York’s statutory scheme, and its implementing administrative procedures, evidence a proper concern with, and protection of, the individual’s interest in privacy. We therefore need not, and do not, decide any question which might be presented by the unwarranted disclosure of accumulated private data—whether intentional or unintentional—or by a system that did not contain comparable security provisions. We simply hold that this record does not establish an invasion of any right or liberty protected by the Fourteenth Amendment.
Given the safeguards afforded by the statutory scheme at issue, we are satisfied that the legislative enactment remains within the scope of the limits stated in the Whalen case.
Mr. Heath cites Eddy v. Moore, 5 Wash. App. 334, 487 P.2d 211 (1971), which dealt with the question of the legality of the retention of a record of an acquitted person’s fingerprints and photographs in police files on privacy grounds. After analyzing State of Washington and federal law, the Court concluded at 487 P.2d, pp. 217 and 218:
We believe the right of an individual, absent a compelling showing of necessity by the government, to the return of his fingerprints and photographs, upon an acquittal, is a fundamental right implicit in the concept of ordered liberty and that it is as well within the penumbras of the specific guarantees of the Bill of Rights ‘formed by emanations from those guarantees that help give them life and substance’. Griswold v. Connecticut, 381 U.S. 470 (1965).
It will take a compelling showing on the part of the state to justify a retention of the fingerprints and photographs. . . .
The Washington statutes governing what is done with fingerprints and photographs upon acquittal of an accused are too limited in their scope. Their failure to provide for return of the fingerprints and photographs upon acquittal, absent a compelling showing justifying their retention, is a constitutionally defective omission.
The Eddy case is distinguishable for numerous reasons but primarily because the nature of the intrusion into privacy diifers so greatly. Fingerprints and photographs which could be utilized in criminal investigations or photo identifications for uncharged crimes are substantially different from the listing of one’s name in a registry. Both the potential for misuse and the lack of any stated safeguards make a significant difference, therefore, the retention of this information was also probably outside the scope of the later ruling in the Whalen case.
We are persuaded by the reasoning in Wade v. Goodwin, 843 F.2d 1150 (8th Cir. 1988), that the maintenance of Heath’s name on the central registry does not constitute an invasion of his privacy. William Wade was placed on a list of persons identified as “survivalists,” and the list was to be circulated to the State Troopers. Pursuant to an FOIA request, the list was published in newspapers of wide and local circulation. Wade alleged the publication invaded his right to privacy. After stating that the “constitutional right to privacy is generally limited to only the most intimate aspects of human affairs,” the Court said:
At argument Wade candidly conceded that it was highly doubtful, if not impossible, to prove any real damages as a result of the compilation or publication of the ‘list,’ and counsel stated that primarily Wade wanted a ‘name clearing’ hearing. Wade evidently believes that a ‘good name is rather to be chosen than great riches, and loving favor rather than silver and gold.’ Proverbs Ch. 22, verse 1. Perhaps unfortunately, neither this court nor the district court has jurisdiction under § 1983 to give Wade a name-clearing hearing. At bottom, his complaint alleges, if any cause, a state tort action for defamation of character.
We agree with that conclusion. There is no constitutional violation here, thus we reverse the Trial Court’s order which required immediate expungement of the record in issue.
Reversed and dismissed.
Corbin and Brown, JJ., dissent.
Donald L. Corbin, Justice, dissenting. I dissent.
The majority determines that “nothing in the central registry listing concerning Heath is untrue.” This finding clearly goes against the determinations by the trial court that there was no credible evidence to support the charge and that the court remained convinced that to allow an innocent man’s name to remain on a central list of child abusers for three years with all its potential nuisances is a violation of that individual’s constitutional rights. To be fair, the physical act of spanking the child at school was not controverted — but a judicial finding was made that the act of child abuse was untrue.
The DHS’ statutory reporting scheme as it relates to the treatment Mr. Heath is receiving should be examined within the following framework: What safeguards are afforded by the statutory scheme so as to evidence a proper concern with, and protection of, the individual’s interest in privacy as alluded to in Whalen v. Roe, 429 U.S. 589 (1977)? There is none!
In Riggs, Peabody & Co. v. Martin, 5 Ark. 506 (1884), the court declared unconstitutional a legislative act that among other things precluded a creditor of an estate from asserting his claim by affidavit but required that he appear in open court to assert his claim. The court stated, “[t]he Legislature certainly does not possess the power to cut off all remedy or demands against the estate of deceased persons, or so to impair the right or clog its assertion as to render it inoperative or valueless.” The legislature places an onerous burden on the assertion of his rights, and oppresses him not only by requiring a useless but expensive act to be done, and when it is performed, it allows it to have no weight or influence in his favor in the cause. In reaching this conclusion, the court noted:
It is a maxim of universal justice pervading the whole system of the common and civil law that wherever a party has a legal right he is entitled to a legal remedy to enforce it. For, if this was not the case, it could not be said that the laws reigned and governed the rights of contract. It is the obligations of the laws compelling men to perform their legal duties or punishing them for their violation that gives security and affords protection to life, liberty and property; and the peaceful and unfettered enjoyment of these blessings mark the boundaries between just and arbitrary governments.
Id. at 508-09. This case turned on the convenience to the creditors of an estate. Surely the state owes as much to Mr. Heath.
In Davis v. Schimmel, 252 Ark. 1201, 482 S.W.2d 785 (1972), we addressed an issue of an infringement of a property interest, stating:
A purely arbitrary or capricious exercise of legislative power, whereby a wrongful and highly injurious invasion of property rights is practically sanctioned and the owner stripped of all remedy is wholly at variance with the principles of due process. In the concrete, due process means that in a contest concerning rights of life, liberty or property, a citizen will be given a reasonable opportunity to contest the propriety of each step in the proceedings against him. Since notice and an opportunity to be heard are prerequisites of jurisdiction and jurisdiction a prerequisite of a valid judgment, the legislature is without authority to dispense with these requirements of due process.
Id. at 1208, 482 S.W.2d at 789 (citations omitted) (emphasis added).
What a hollow victory it is for Mr. Heath. He is declared innocent of child abuse in our state court system which utilized concepts of due process, but is still forced for three years to carry the label of child abuser by an administrative agency of the state acting under the auspices of the state legislature. I do not know how the majority can assume there is a report of suspected child abuse now marked “unsubstantiated.” If anything, the record reflects to the contrary. This is evident in its motion for clarification and amendment to the trial court requesting a modification of its order of December 10,1990, so as to indicate that the report of alleged child abuse “is determined unfounded by the court and the central registry record should accordingly be corrected.” Thus it would seem to this dissenter, that DHS is of the opinion it has no authority to correct its own records without an order by the court. By implication, I am led to the conclusion that such a correction has not and will not be made.
Surely, the courts have the inherent power to provide a remedy to one whose rights have been violated by the capricious exercise of legislative power as in the instant case. What good does it do to provide Mr. Heath procedural due process in our court system but deny him a remedy or any sense of justice?
What we now have are these reports and conclusions by DHS personnel and its Hearing and Appeals Board depicting John Heath as a child abuser. DHS’ record will not reflect that a court of this state has determined to the contrary. And now, we refuse to act. This is wrong.
Reputation, for the most part, has not been determined to be a property interest. The reputation of Mr. Heath under the facts of the instant case may very well rise to the level of a property interest. I can think of no higher damage, in dollars and cents, to an educator being labeled a child abuser by a state agency. What school district board in its right mind would ever look beyond the DHS record when considering Mr. Heath for employment? The inquiry would stop right there. I do not see this prospect as being speculative. It is a very real damage to his property interest encompassing income and advancement in the field of education. It is bad enough that the court records of his trial will be around forever.
Brown, J., joins in this dissent. | [
52,
-20,
-19,
108,
10,
-31,
58,
-98,
-45,
-105,
118,
115,
-81,
-41,
5,
111,
-62,
47,
81,
57,
-61,
-73,
115,
73,
98,
-14,
-71,
-43,
-69,
79,
-92,
-36,
79,
112,
-118,
-11,
70,
-54,
-49,
88,
-126,
42,
-118,
-20,
83,
66,
36,
111,
88,
15,
49,
62,
-85,
46,
-102,
-53,
73,
44,
91,
61,
88,
17,
-102,
31,
-53,
34,
-93,
36,
-70,
-119,
-14,
58,
24,
49,
1,
104,
51,
-90,
2,
100,
71,
-103,
1,
100,
98,
3,
-67,
-9,
-76,
-120,
127,
-82,
29,
-90,
-104,
105,
75,
13,
-113,
-75,
114,
-108,
14,
122,
-29,
108,
94,
44,
8,
-50,
118,
-77,
77,
-128,
28,
42,
-25,
13,
16,
85,
-36,
-30,
84,
71,
18,
-37,
-122,
-10
] |
Robert L. Brown, Justice.
Appellant Bruce Rutherford,
who is the county judge of Benton County, urges reversal of a real and personal property tax refund in the amount of $2,544.94 in favor of appellee Robert W. Barnes, a disabled veteran, on the basis that Barnes did not claim an exemption from the taxes for the applicable years in timely fashion. The argument is persuasive, and we reverse.
Appellee Barnes is a resident of Benton County, Arkansas, where he owns real and personal property in Bella Vista Village. The real property has been his homestead since 1980, and he has paid real estate taxes on it since that time. He has also paid personal property taxes. Barnes is a disabled veteran who has been awarded special monthly compensation by the Veterans Administration for the loss of, or the loss of use of, one or more limbs. His disability has existed since World War II.
Special tax provisions are made for disabled veterans under Ark. Code Ann. § 26-3-306 (Repl. 1992):
(a)(1)(A) A disabled veteran who has been awarded special monthly compensation by the Department of Veterans Affairs for the loss of, or the loss of use of, one (1) or more limbs, or total blindness in one (1) or both eyes, or for service-connected one hundred percent (100%) total and permanent disability shall be exempt from payment of all state taxes on the homestead and personal property owned by the disabled veteran. . . .
(b)(1)(A) A disabled veteran eligible for the exemption provided in this section and desiring to claim an exemption shall furnish to the collector a letter from the Department of Veterans Affairs verifying the fact that he is in receipt of special monthly compensation for the loss of, or the loss of use of, one (1) or more limbs, or total blindness in one (1) or both eyes, or for service-connected one hundred percent (100%) total and permanent disability.
On February 10,1990, after submitting a request for a letter in accordance with the statute, Barnes received Form 20-5455 from the Veterans Administration, certifying that he met the eligibility requirements for the exemption. Barnes then presented the form to the Benton County Collector and claimed any exemption to which he was entitled.
The Benton County Collector responded by letter that the appellee was exempted from paying 1989 property taxes and that the exemption would continue on a year-to-year basis, if the VA form were furnished annually. In 1991, Barnes delivered a new VA Form 20-5455 to the collector to cover the 1990 tax exemption. Barnes also made a verbal request for the refund of taxes for previous years, which the collector denied.
Barnes next met with the appellant, Benton County Judge Bruce Rutherford, and presented a written request for a refund of taxes paid for the years 1980 through 1988. The county judge agreed that Barnes was entitled to a refund of property taxes paid for the past three years (one of which —1989 — had already been exempted) and that a refund of taxes for 1987 and 1988 would be ordered.
Subsequently, the county judge ordered a refund of $1,181.81 in real and personal property taxes for 1987 and 1988, and it was paid. No other refund of property taxes paid by Barnes has been made.
Barnes filed a petition for declaratory relief and mandamus to direct the county judge to refund property taxes paid for the years 1980 through 1986, which amounted to $2,544.94, plus interest. The county judge responded that Barnes had not claimed the necessary exemptions and was barred from seeking a refund for overpayment of taxes by the three-year limitations period.
Barnes then filed a motion for summary judgment. The circuit court granted Barnes the relief requested and found that “all parties have acted reasonably and in good faith in their respective actions and legal positions.” The court concluded that “there is no limitation period provided by law which would apply to refunding of property taxes collected during years in which the property owner was actually exempt from tax. ... If the legislature has not specifically limited a right of action, the Court cannot do so.” The court awarded judgment in the amount of $2,544.94, with no interest.
County Judge Rutherford urges on appeal, as his primary point, that Barnes paid the taxes for the previous years in question and did not claim an exemption for those years under Ark. Code Ann. § 26-3-306(b)(l)(A). Without a claimed exemption, according to the appellant, there can be no certainty or finality regarding such taxes. Stated another way, Barnes paid the real and personal property taxes for the years 1980 through 1986 voluntarily and claimed no exemption for any one of those years in which he paid.
We have adopted in this state the common law rule that taxes voluntarily paid are not recoverable. 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). In both Cash and Thompson, we quoted from Cooley, The Law of Taxation, Ch. 20, § 1282, in establishing the common law rule:
It is well settled that if the payment of a tax is a voluntary payment, it cannot be recovered back, except where a recovery is authorized by the provisions of a governing statute regardless of whether the payment is voluntary or compulsory. . . . Where voluntary payments are not recoverable, it is immaterial that the tax or assessment has been illegally laid, or even that the law under which it was laid was unconstitutional. The principle is an ancient one in the common law, and is of general application. Every man is supposed to know the law, and if he voluntarily makes a payment which the law would not compel him to make, he cannot afterwards assign his ignorance of the law as a reason why the State should furnish him with legal remedies to recover it back. Ignorance or mistake of law by one who voluntarily pays a tax illegally assessed furnishes no ground of recovery.
Cash, 277 Ark. at 503-504, 644 S.W.2d at 232; Thompson, 222 Ark. at 115, 257 S.W.2d 379.
Here, Barnes voluntarily paid his taxes for the years 1980 through 1986, and claimed no exemption for any one of those years. He is presumed to have known the law and his rights under the law. Accordingly, the decision of the circuit court is reversed, and the writ of mandamus is vacated. | [
-48,
-18,
-11,
92,
59,
-64,
2,
-88,
83,
-79,
-89,
27,
103,
74,
21,
107,
-16,
-5,
117,
125,
-33,
-93,
55,
-126,
116,
-77,
-37,
-57,
-72,
77,
-28,
-60,
28,
57,
-54,
21,
68,
-62,
-83,
28,
78,
-122,
11,
77,
-7,
66,
56,
47,
8,
11,
49,
-98,
-6,
46,
60,
-61,
40,
44,
89,
-94,
81,
-77,
-72,
13,
-21,
21,
33,
70,
-104,
67,
112,
-22,
-112,
49,
64,
-22,
119,
-74,
-58,
116,
3,
-67,
12,
100,
99,
1,
29,
-1,
-12,
40,
-114,
-6,
-115,
-91,
-110,
25,
82,
111,
-122,
-98,
-2,
68,
76,
120,
-20,
-60,
-99,
44,
-113,
-18,
-106,
-79,
-20,
40,
-120,
67,
-1,
3,
-80,
117,
-49,
-58,
88,
7,
83,
-101,
-110,
-34
] |
McHaney, J.
Appellant brought this action against appellees, Fred Crater, Allen Jones, Will Robison and John H. Smith, on the following complaint:
“Comes the plaintiff for his cause of action herein alleges that he is the legal pastor of the Pine Hill Colored Baptist Church, which church is located on Spruce Street immediately north of Pine Bluff, and that he has been the pastor of said church for the last past fifteen years.
“That on the 9th day of September, 1929, the above defendants assembled at the door of the above-named church just before the hour of services and when the pastor arrived he was prevented from entering said church by said defendants and from holding services. That said defendants threatened plaintiff, and when it was apparent that said services could not be held without a breach of the peace and a disturbance of the religious worship the congregation was prevented from holding services.
“That, unless the defendants are restrained and enjoined from interfering with the plaintiff and the members of his congregation, it will be impossible to hold sendees in the future, and the' plaintiff will suffer irreparable injury. That the said defendants are insolvent. That said plaintiff has no adequate remedy at law herein.
“That said church is indebted to plaintiff in the sum of $800 and under plaintiff’s contract with said congregation he has a right to remain the pastor o'f said church until said money is paid, and that he has a lien on said church to secure the payment of the above-mentioned debt.
“Wherefore, premises considered, plaintiff prays that a temporary restraining order be issued restraining and enjoining the defendants and all other persons from’ interfering with plaintiff in' any manner as the pastor of the above-mentioned church and that upon a final hearing- said injunction be made permanent.
“But, in case the court should find that a permanent injunction should not be granted, then plaintiff asks judg ment herein in the sum of $800, and that the same he declared a lien on said church, and for all other proper and equitable relief.”
To this complaint a demurrer was interposed and sustained. Appellant declined to plead further, and his complaint was dismissed for want of equity.
The court correctly sustained the demurrer as the complaint failed to state a cause of action. Appellant alleges that he is the legal pastor of the Pine Bluff Colored Baptist Church and he seeks to enjoin the appellees, who, so far as the complaint discloses, are not connected with said church either as officers or members, from interfering with him as pastor. He alleges that they had prevented him from holding services, which might amount to a misdemeanor, such as disturbing the peace, but chancery court will not ordinarily enjoin the commission of a crime. Lyric Theatre v. State, 98 Ark. 437, 136 S. W. 134, 33 L. R. A. (N. S.) 325.
The final allegation is directed against the Pine Hill Baptist Church, and is to the effect that the church is indebted to him, that under his contract with the church he has the right to remain the pastor until the debt is paid, and that he has a lien on the church to secure the debt. But the Pine Hill Baptist Church is not a party to the action. It has not been sued, nor served, and of course the court could not render a judgment against it or declare or enforce a lien on its property, as it had no jurisdiction of the person against whom judgment was sought.
Affirmed. | [
-108,
-20,
-8,
-52,
10,
1,
40,
-122,
83,
-125,
-28,
-41,
-19,
-46,
5,
111,
-14,
121,
81,
121,
-16,
-74,
6,
96,
-48,
-109,
-53,
-123,
-79,
-49,
-28,
-9,
72,
42,
74,
-35,
71,
74,
-51,
28,
14,
-125,
-87,
108,
-47,
75,
52,
115,
84,
79,
85,
-73,
-13,
40,
56,
-53,
73,
44,
-33,
45,
-48,
57,
-100,
13,
127,
7,
49,
36,
26,
1,
110,
88,
-104,
49,
18,
-24,
115,
34,
-118,
119,
79,
-72,
8,
52,
98,
2,
-91,
-2,
-56,
-103,
15,
58,
-99,
38,
-46,
104,
40,
13,
-73,
-111,
119,
81,
-122,
118,
124,
20,
24,
108,
2,
-50,
-44,
-75,
-121,
48,
-98,
7,
-29,
7,
36,
112,
-51,
-74,
92,
103,
51,
-37,
6,
-103
] |
Per Curiam.
This is a petition duly verified by Harney McGehee for reinstatement to practice law upon his promise of future good conduct. The facts upon which his suspension are based are stated in the proceedings for disbarment in our opinion delivered on November 3, 1930, ante p. 603. We all agree that he should not be reinstated in the general practice from which he was suspended for the period of one year; but, inasmuch as he was elected to the office of prosecuting attorney at the general election held on the first Tuesday in November, 1930, a majority of the court is of the opinion that the suspension should not apply to his official duties as prosecuting attorney, and that he be reinstated, so far as his suspension might apply to the discharge of the duties of that office.
Smith, Humphreys and MoIIaney, JJ., dissent. | [
-80,
-35,
60,
-36,
42,
-96,
-72,
30,
93,
-13,
-25,
83,
-23,
27,
45,
115,
-13,
123,
81,
123,
-59,
-74,
118,
3,
-106,
-109,
-53,
-41,
51,
-49,
-25,
-3,
76,
-66,
74,
-107,
6,
-54,
-55,
-36,
-118,
1,
41,
-4,
88,
-63,
52,
23,
-14,
15,
81,
-34,
-29,
46,
28,
75,
-88,
44,
-39,
41,
-47,
-95,
-99,
-123,
125,
20,
-79,
68,
-97,
-125,
88,
46,
-104,
17,
-112,
-4,
50,
-106,
-121,
84,
71,
-87,
32,
118,
54,
1,
-39,
-67,
-96,
-88,
30,
62,
29,
-90,
-47,
89,
-86,
-12,
-106,
-71,
87,
16,
7,
118,
100,
-123,
57,
44,
14,
-114,
-44,
-79,
-37,
-15,
-114,
26,
-21,
3,
32,
81,
-115,
-74,
93,
66,
59,
27,
-125,
-64
] |
Kirby, J.,
(after stating the facts). Appellant contends that there was no completed contract for the new insurance and that the undisputed testimony shows, on account of the false warranties, that' there could not have been any liability on the part of the company under the new certificate; and that the court erred in not so directing the jury.
It is not questioned that the amount tendered by appellant company in settlement of its liability under the first or old certificate was not the correct amount due thereunder after deduction of charges properly made against it, except as to the $301.65 deducted for misrepresentation of insured’s age as one year less than it in fact was. The undisputed -testimony shows that the application for the new certificate was not signed by the member or insured, but was signed by Mr. Eakes, who had the old certificate in his possession and was advancing money thereon to the insured; he having signed it upon the suggestion of the beneficiary, the wife of insured, and J ones, the agent of the company employed by the appellant company to effect the exchanges of certificates. Eakes refused to sign the first application until the agent crossed out the words “while in good health,” and later signed the application that was presented containing the words that had been stricken out of the first application upon the statement by Jones that it would be all right to do so.
If it be regarded that the contract for the exchange of certificates was not completed, there certainly could be no liability of appellant on the new certificate sued on. It is undisputed that the member did not sign a receipt for the new certificate, and also that he died before the delivery of same, the clerk of the Camp, whose duty it was to make such delivery having indorsed thereon, “received after death.”
Without regard to whether the application for the new certificate was in fact signed by the insured, or whether his name was signed thereto by Eakes upon the suggestion of his wife, the beneficiary, or the soliciting agent, not personally present at the time; if it be regarded a valid signature its effect was as binding upon the insured, so far as the representations and warranties were concerned, as though he had signed it himself. The undisputed testimony shows that he had been suffering from Bright’s disease for some time, knew such to be the case, and was confined to his bed much of the time during the three months before his death, and that he died of this same disease within three days of the date of the issuance of the new contract, which was never delivered to him.
The new certificate provided it must be delivered during the lifetime of the member, while he was in good health, and that if his death resulted within a year thereafter from a disease from which he was suffering at the time of the application for and issuance of the certificate, there would be no liability under it. The undisputed testimony also shows that the policy was not delivered at all, that the insured’s health was not good at the time the application was made; that he in fact died before the policy was delivered, within two or three days of the date thereof, of the same disease from which he had long suffered. There was necessarily no liability on the part of appellant company under the new certificate, and the court should have directed a verdict in its favor accordingly.
Since it is not disputed that appellant company offered to pay and tendered the full amount due under the first or old policy “less $301.65 wrongfully deducted on account of the alleged incorrect statement of the in sured’s age, the jury having made a special finding to the contrary on the point,” in discharge of its liability thereunder, judgment should have been rendered for such amount, $1,061.85 and said $301.65 wrongfully deducted as aforesaid without- penalties and attorney’s fees, the statute providing for such penalties and attorney ’s fees not being applicable in cases of this kind, and the amount sued for was not recovered anyway.
The judgment will therefore be modified, reducing it to the said amount shown to be due under the terms of the old certificate, $1,363.50, and as modified, will be affirmed. It is so ordered. | [
48,
108,
-40,
-99,
8,
32,
42,
-94,
-2,
-92,
39,
83,
-5,
-62,
21,
119,
-28,
45,
-48,
58,
55,
-93,
51,
104,
-46,
23,
123,
-59,
-79,
76,
-74,
-36,
76,
52,
-118,
85,
-26,
74,
-59,
80,
-54,
10,
-69,
-24,
-39,
-47,
32,
-1,
116,
95,
81,
-106,
67,
42,
5,
-57,
109,
42,
107,
-83,
-48,
96,
-97,
5,
125,
5,
49,
4,
-65,
111,
-6,
12,
-104,
-79,
8,
-56,
81,
-90,
-58,
116,
9,
-103,
0,
102,
99,
32,
16,
-19,
-20,
-100,
63,
58,
31,
-90,
-77,
72,
11,
9,
-73,
29,
120,
16,
-74,
116,
-8,
92,
28,
44,
3,
-117,
-110,
-127,
79,
100,
-100,
15,
-18,
-121,
-74,
81,
-49,
-10,
93,
69,
58,
27,
-97,
-110
] |
Robert H. Dudley, Justice.
The sole issue presented by this appeal is whether appellant, Hanna Oil and Gas Company, is entitled to deduct a pro rata share of its compression costs from appellee’s, David Taylor’s, royalties. The chancellor held that appellant was not entitled to deduct the costs. We affirm.
. In 1975, appellee, David Taylor, entered into an oil and gas lease with appellant, Hanna Oil and Gas Company. The leased land was pooled with other land to form a production unit. In 1976, appellant completed a producing natural gas well. Gas from the well was sold to Arkansas Louisiana Gas Company pursuant to a gas purchase contract between appellant and Arkansas Louisiana Gas Company. The gas purchase contract was entered after the lease agreement and required appellant to deliver the gas at a pressure of 500 pounds per square inch.
During the first eight (8) years, from 1976 to April 1984, it was not necessary to compress the gas in order to deliver it at the required pressure. Beginning in April 1984, however, appellant had to compress the gas. Yet, compression costs were not deducted from the royalty paid to appellee until October 1986. On May 5, 1987, appellee filed his petition in chancery court challenging the deduction of the compression costs.
In determining whether appellant is entitled to deduct compression costs, we must first examine the language of the oil and gas lease. Compression costs are not specifically mentioned in the lease; however, the pertinent portion of the lease provides:
Lessee shall pay Lessor one-eighth of the proceeds received by Lessee at the well for all gas (including all substances contained in such gas) produced from the leased premises and sold by Lessee.
We have not had an opportunity before now to consider a proceeds royalty clause such as this.
Unless something in the context of an agreement provides otherwise, “proceeds” generally means total proceeds. Warfield Natural Gas Co. v. Allen, 261 Ky. 840, 88 S.W.2d 989 (1935). Webster’s New World Dictionary’s first definition of “proceeds” provides: “what is produced by or derived from something (as a sale, investment, levy, business) by way of total revenue: the total amount brought in: yield, returns.” Thus, we find it unnecessary to go beyond the clear language of the agreement between the parties to hold that appellant is not entitled to deduct compression costs. If it had been their intention to do so, they would have made some reference to costs, or “net” proceeds.
Further, even if we found this lease provision to be ambiguous, we would be compelled to construe it in favor of appellee. Ambiguities in an oil and gas lease should be construed in favor of the lessor and against the lessee. Bodcaw Oil Co., Inc. v. Atlantic Refining Co., 217 Ark. 50, 61, 228 S.W.2d 626, 633 (1950).
Finally, perhaps the most compelling support for our conclusion that the compression costs are not deductible lies in the construction the parties themselves placed upon their agreement for more than two years. Compression became necessary in April 1984; however, the costs associated with compression were not deducted from the royalty paid to appellee until October 1986. Thus, for over two years appellant’s construction of the lease was consistent with that urged by appellee. The construction placed upon an agreement by the parties is an important, and often decisive factor in construing an instrument. Skaggs v. Heard, 172 F. Supp. 813 (S.D. Tex. 1959).
Hays, J., dissents. | [
-16,
-18,
89,
44,
24,
96,
42,
-105,
65,
-93,
119,
87,
-81,
-57,
0,
127,
-125,
121,
101,
108,
-105,
-93,
3,
83,
-108,
-77,
-103,
-47,
57,
79,
-4,
-42,
76,
32,
-54,
85,
70,
10,
-27,
-36,
-82,
6,
-101,
-55,
121,
0,
52,
8,
48,
13,
121,
-123,
59,
32,
24,
-57,
73,
46,
-19,
56,
64,
-16,
-86,
-113,
31,
22,
32,
36,
-48,
67,
-56,
30,
-106,
-71,
8,
-20,
114,
-92,
-64,
-12,
43,
57,
-84,
42,
98,
32,
37,
-1,
106,
56,
30,
-34,
-99,
-92,
82,
24,
35,
73,
-65,
28,
120,
4,
-59,
118,
-28,
-107,
-33,
109,
31,
-50,
-44,
-95,
13,
-23,
-104,
7,
-17,
-89,
0,
69,
-51,
-94,
92,
71,
126,
-105,
22,
-6
] |
G-eorge Eose Smith, J.
This is a will contest by which the appellants seek to set aside for undue influence an instrument that was probated as the will of F. C. Werbe. By this will the entire estate was devised to the appellee, who was Werbe’s housekeeper for several years preceding his death. The appellants are the decedent’s heirs at law, though there is some controversy among them as to their respective rights if the will be set aside. That controversy we do not now decide. At the close of the contestants’ testimony the appellee filed a motion .for judgment before submitting her own proof. The probate judge sustained the motion, and this appeal is from his dismissal of the contest.
We need not detail the evidence, for our decision must rest upon a matter of procedure. It is enough to say that the appellants’ proof tended to show that F. C. Werbe was suffering from heart trouble and other maladies when he signed the questioned will, that the appellee had attempted to dominate her employer in the management of his property, had intercepted his mail, had prevented his relatives from visiting in his home, had obstructed his attempt to deed property to his foster son, etc. Several of these assertions were made by implication rather than by direct testimony. When the appellee moved for judgment the trial judge stated that he thought the contestants had failed to establish undue influence by a preponderance of the evidence. For that reason he dismissed the contest without hearing the appellee’s witnesses.
Our decision involves two procedural questions of first impression. We must treat the appellee’s motion for judgment as having been filed under the authority of Act 470 of 1949 (Ark. Stats., 1947, -§ 27-1729, as amended). That Act provides that in any chancery case the defendant may, at the close of the plaintiff’s case, file a written motion challenging the sufficiency of the evidence to warrant the relief prayed. If the trial court grants the motion and we reverse his action on appeal, wo aro required by the Act to remand the cause for the development of the defendant’s proof.
The first question is whether Act 470 applies to proceedings in the probate courts. By its terms the Act is applicable only to cases in chancery, but the Probate Code provides: “Procedure and rules of evidence in Probate Courts, except as in this Code otherwise provided, shall be the same as in courts of equity.” Ark. Stats., § 62-2004. Act 470 undoubtedly governs procedure in courts of equity, and by the Code the legislature has declared that the probate courts are to follow equity procedure. We think it perfectly clear that Act 470 does apply to probate proceedings.
The second and more difficult question is this: When the defendant in an equity or probate case asks for judgment at the close of the plaintiff’s testimony, should the trial judge view the evidence in the light most favorable to the plaintiff to determine whether a prima facie case has been made, or should he weigh the testimony to decide whether the plaintiff has proved his case by a preponderance of the evidence? In short, does a motion filed under Act 470 present an issue of law or of "fact? In the case at bar this question is of primary importance, for the appellants’ proof was undoubtedly sufficient to raise a jury question had the suit been tried in a circuit court. But if the problem is where the preponderance lay, a much closer question is presented.
Forceful arguments are advanced to support each suggested construction of Act 470. For the appellee it is said that the trial judge must eventually weigh the evidence in any event; why should he not do so at the first opportunity? The appellants answer that reason and authority back their contention that the motion raises only an issue of law regarding the sufficiency of the plaintiff’s case.
After a painstaking study of this matter we are unanimously of the opinion that the motion presents a question of law and not of fact. The General Assembly evidently chose its language with care, and what the motion challenges is “the sufficiency of the evidence” to warrant the relief prayed. The quoted phrase has a familiar legal meaning — a meaning that does not involve the weighing of evidence. For instance, it is often said that the defendant’s motion for a directed verdict in suits at law challenges “the sufficiency of the evidence” to take the case to the jury. Here the legislature has used a phrase of well known legal signification, and it is presumed to have used the language in that sense. Fernwood Mining Co. v. Pluna, 138 Ark. 459, 213 S. W. 397.
The history of this statute confirms our interpretation of the legislative intention. For more than a century one difference between the practice at law and that in equity was that in a law case the defendant could test the sufficiency of the plaintiff’s evidence by moving for a directed verdict when the plaintiff rested. In equity the defendant did not have this option. He was required to rest his own case before asking judgment, so that such a motion at the close of his adversary’s proof involved the relinquishment of his right to call his own witnesses if the motion should be denied.
The first suggestion that the practice in equity had been changed to conform to that at law was made after the passage of Act 257 of 1945 (Ark. Stats., § 27-1729, as it read before the 1949 amendment). That Act provided that in equity, at the close of the plaintiff’s case, the defendant might file a written demurrer setting forth any defenses that could previously have been raised by that pleading. In Kelley v. Northern Ohio Co., 210 Ark. 355, 196 S. W. 2d 235, we held that the 1945 Act did not enable the defendant to demur to the plaintiff’s evidence. We pointed out that a demurrer to the evidence has always been unknown to our practice and that by its language the Act allowed the defendant to raise only such questions as could previously have been presented by a demurrer.
By its express terms the 1949 Act is an amendment of the 1945 legislation. We said in the Kelley case that the earlier Act did not introduce into our practice the demurrer to the evidence, but the General Assembly has now declared in unmistakable language that the defendant in an equity case may by written motion challenge “the sufficiency of the evidence” offered by the plaintiff. It is evident that the legislature meant to change the rule of the Kelley opinion and bring the equivalent of a demurrer to the evidence into our equity procedure.
What, then, is the effect of a demurrer to the evidence or a similar pleading in jurisdictions recognizing that practice? The question' may arise either in equity cases, where the chancellor is the arbiter of the facts, or in cases tried at law without a jury, where also the trial judge decides all issues of fact. By the overwhelming weight of authority it is the trial court’s duty, in passing upon either a demurrer to the evidence or a motion for judgment in law cases tried without a jury, to give the evidence its strongest probative force in favor of the-plaintiff and to rule against the plaintiff only if his evidence when so considered fails to make a prima facie case. Among dozens of cases that might be cited are Smith v. Russell, 76 F. 2d 91 (C.C.A. 8); First Nat. Bk. v. Northwestern Nat. Bk., 152 Ill. 296, 38 N. E. 739, 26 L. R. A. 229, 43 Am. St. Rep. 247; Wolf v. Washer, 32 Kan. 533, 4 P. 1036; Butler County v. Boatmen’s Bk., 143 Mo. 13, 44 S. W. 1047; Weston Elec. Inst. Co. v. Benecke, 82 N. J. L. 445, 82 A. 878. The minority view, which permits the trial judge to weigh the evidence is well stated in Porter v. Wilson, 39 Okla. 500, 135 P. 732.
We think the majority rule reaches much the better result. The American courts have always followed the theory of an adversary trial. In such a trial the parties are placed on equal terms and each develops his own proof by his own witnesses, though of course the party having the burden of proof must establish a prima facie case before his opponent need go forward with the evidence. The minority conception of a demurrer to the evidence is contrary to the traditional procedure in adversary trials, since the defendant is given an advantage. He has the opportunity of twice ■ submitting the case to the trier of the facts. A comparable rule in jury cases ■would permit the case to go to the jury at the close of the plaintiff’s case, but if the jury found for the plaintiff the verdict would then be set aside so that the defendant could present his evidence and enjoy a second chance to receive a favorable verdict. Furthermore, in many instances the plaintiff’s prima facie case must necessarily be somewhat weak, for the reason that only the defendant himself may be able to supply details needed to complete the picture. If the case goes to the trier of the facts on the plaintiff’s proof alone, the defendant has the advantage of not exposing weaknesses in his own armor unless called to the witness stand by his adversary. For these reasons we have no hesitancy in adopting the majority rule as to the function of a demurrer to the evidence.
' In this case the trial court sustained the defendant’s motion on the ground that undue influence had not been shown by a preponderance of the testimony, even though the appellants had made a case that would have to be submitted to the jury in an action at law. The judgment is accordingly reversed and the cause remanded for further proceeding’s. | [
117,
-24,
-52,
-115,
8,
-16,
34,
-102,
67,
-25,
39,
17,
-19,
-46,
84,
63,
-13,
11,
-43,
107,
-45,
-93,
31,
-45,
114,
-109,
-109,
-41,
54,
-17,
-11,
95,
76,
98,
-30,
-107,
-25,
-62,
-59,
-40,
6,
72,
9,
-31,
-39,
-14,
48,
-13,
22,
29,
81,
-98,
-9,
42,
61,
-57,
40,
62,
-39,
-83,
-32,
56,
-97,
5,
107,
23,
-79,
-121,
-104,
-24,
74,
40,
4,
25,
1,
-24,
115,
-74,
-110,
84,
107,
43,
40,
98,
98,
-127,
97,
-17,
-72,
-104,
31,
102,
29,
-89,
-106,
73,
105,
42,
-74,
-7,
117,
16,
14,
-18,
-28,
28,
31,
104,
8,
-113,
-42,
-79,
14,
10,
-100,
10,
-21,
-111,
16,
113,
-56,
-56,
94,
71,
51,
-37,
-57,
-80
] |
Frank Holt, Justice.
The appellee is the former superintendent of schools for the Mountain View School District. He brought suit in chancery court for breach of contract after he was discharged by the school board members, the appellants. The case was transferred to the circuit court. This appeal results from the decision of the trial court, sitting without a jury, that the appellants wrongfully discharged the appellee from his position as superintendent of the schools and, consequently, appellee is entitled to compensation pursuant to his two year contract. The sole issue presented by appellants is whether the finding by the trial court that the school board lacked sufficient cause to discharge the appellee is clearly against the preponderance of the evidence, ARCP, Rule 52 (a). We affirm.
On January 12, 1981 the board voted 4-2 to renew the superintendent’s contract. Members Baxter and Logan dissented. The new two year contract was signed on February 5, 1981. It was to run from July 1, 1981 to June 30, 1983. In the March 1981 school elections two of the members who had voted to renew the superintendent’s contract were replaced with new members. In early April the daughter of the superintendent was involved in an incident at school relating to alcoholic beverages. The superintendent suspended his daughter for the remainder of the semester. This incident was discussed in executive session by the board on April 13. On April 16 an attorney wrote Logan on behalf of the superintendent saying that he had information that Logan had reported to a local paper that appellee’s daughter was found in possession of an alcoholic beverage at the Mountain View School and threatening litigation if Logan or his attorney failed within ten days to respond in order to work out the matter. On April 28, the superintendent took an affidavit from a school custodian stating as follows:
I, Jimmy Joe Wallis, an employee of the Mountain View School District was in Roger Hopper’s Auto Parts Store and was approached by Roger Hopper who had recently been elected to the Mountain View School Board. Roger Hopper said to me ‘Jimmy Joe, you’re for Bill Rosa, aren’t you?’ I repeated to Roger Hopper that Bill Rosa had never done anything against me and that I sure was not against him. Roger Hopper replied, ‘Well, he thinks David Baxter has been giving him ‘Hell’ on that Board, he hasn’t seen anything yet as to what’s going to happen when I’m on the Board.’
The above statement is a true statement made to me by Roger Hopper in Hopper’s Auto Parts Store. I was also a Mountain View School employee when the above statement was made.
The superintendent sent the affidavit to his attorney. The superintendent also took the affidavit to the recently elected Hopper in May and discussed it with him. Hopper denied making the statements and suggested the matter be presented to the school board. On June 10 the superintendent’s lawyer wrote Hopper concerning the affidavit and requested a response from Hopper or his attorney within ten days. At the regularly scheduled board meeting on July 13, Hopper requested a special meeting to discuss the affidavit and the letter he had received from the superintendent’s attorney. This meeting was held on July 27, 1981. The custodian disavowed the affidavit. At that meeting the board voted 5-1 to terminate the superintendent’s contract.
The appellants summarize the grounds which they assert justified the firing as follows:
(1) Appellee communicated with two board members through his attorney in a threatening manner with regard to personal litigation.
(2) Appellee intimidated a school custodian to coerce him into executing a false affidavit that could only be used to threaten and intimidate a board member.
(3) Appellee refused again and again to provide information requested by certain board members.
(4) Appellee refused to work with board member Logan at all.
(5) Appellee suspended his daughter in violation of the policies of the district, this being the prerogative of the board.
In support of their position, appellants adduced testimony and other evidence from the custodian Wallis and board members Turner, Hopper, Partee, Logan and Baxter. It is undisputed that the appellee superintendent did communicate through his attorney with two of the school board members, Logan and Hopper,- with reference to resolving their personal differences; namely, the controversy about the Wallis affidavit and the superintendent’s suspension of his daughter from school. The superintendent, who had served as such for 15 years, testified, however, that the custodian’s affidavit accurately reflected what he had been told by him and that he, the superintendent, did not coerce or intimidate him. The superintendent denied that he had ever failed or refused to furnish any requested information to the school board members and further denied that he had refused to work with any school board member. Admittedly, he suspended his 12 year old daughter due to the incident involving a bottle of beer on the school premises. Board member Logan agrees that even though a suspension in an alcohol related incident is a matter for the school board, the action taken by the superintendent was “sufficient”.
No citation of authority is necessary to support the proposition that the factfinder, here the trial court, is in a better position than are we to observe and evaluate the demeanor, the prejudice or bias, and the interest and credibility of a witness. ARCP, Rule 52 (a), which is applicable here, provides: “Findings of fact shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence), and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Here, we certainly cannot say that the finding of the court was clearly erroneous.
Affirmed. | [
48,
-2,
-100,
12,
10,
96,
58,
-108,
-21,
-29,
53,
83,
-81,
-29,
13,
99,
-13,
111,
-43,
104,
-121,
-77,
66,
96,
-16,
-13,
-5,
-59,
-77,
110,
-20,
95,
72,
55,
74,
85,
-26,
-54,
-59,
-48,
2,
-95,
-83,
106,
-39,
-64,
56,
125,
58,
15,
49,
-98,
-77,
46,
24,
-57,
77,
56,
59,
-81,
-44,
-15,
-86,
-123,
93,
22,
-103,
39,
-98,
7,
120,
106,
24,
49,
-128,
-8,
112,
-90,
-54,
102,
1,
-119,
-120,
96,
98,
1,
-19,
-27,
-4,
-120,
46,
58,
63,
-28,
-109,
89,
35,
5,
-66,
-100,
112,
22,
-121,
-4,
-31,
-63,
23,
44,
4,
-62,
-124,
-77,
-114,
100,
-98,
10,
-1,
49,
49,
117,
-51,
-82,
93,
103,
115,
31,
14,
-110
] |
Lyle Brown, Justice.
These two appeals, No. 73-127 from the Washington Chancery Court and No. 73-150 from the Washington Circuit Court, were consolidated for purposes of briefing and submission. The cases are so interrelated that they cannot be segregated for discussion. In the chancery case the court approved the findings of a master which concluded that appellant, White Poultry Supply, Inc., was indebted on account to appellee, Brower Manufacturing Co., in the sum of $83,-565.79. It is White Poultry’s contention for reversal of the chancery case that the chancery court was without jurisdiction. Following the finding in chancery, the circuit court granted Brower Manufacturing’s motion for summary judgment in accordance with the finding of the master in chancery. (The judgment was slightly less, than the finding of the master, being based on the amount sued for.) White Poultry here contends that at the time the judgment was granted, the' circuit court was without jurisdiction over the accounting action. In addition to challenging the merits of White Poultry’s points for reversal, Brower Manufacturing contends that we should modify and affirm the chancery court with directions to enter judgment in that case, or we should grant Brower Manufacturing’s motion to dismiss White Poultry’s appeal in the chancery case for want of a final judgment and affirm Brower Manufacturing’s judgment rendered in the circuit court case.
This litigation was initially instituted in the chancery court. White complained its business had a gross income in excess of $75,000 annually; that it bought from Brower substantial supplies each year in connection with White’s business of retailing equipment and supplies used in the poultry, livestock, dairy and other agricultural industries; that White had returned consigned merchandise to Brower in the approximate sum of $27,-000 and had not received credit; and that White had made a payment of $15,000 and had not received credit therefor. (White also included in its complaint, allegations in tort and breach of contract.) White conceded that it was indebted to Brower but was unable to state the amount of debt with certainty. White asked that Brower be required to state the account after allowing all credits due it. In May 1971 the chancery court transferred White’s cause of action to the circuit court.
In September 1971 Brower filed in circuit court a counterclaim against White on a statement of account in the sum of $83,445.42. White countered that Brower was indebted to White in the sum of $10,099.80. White again asked that Brower be required to file an accounting between the párties covering a specified period of time. White also alleged that the claim of Brower for $83,445.-42 was incorrect and White filed its version of the' status of the account between the parties.
In March 1972 Brower filed a motion in circuit court to transfer to chancery. The circuit court retained jurisdiction of the tort and contract actions and transferred the claim and counterclaim for accounting to the chancery court. The chancery court accepted jurisdiction over the objection of White, the latter contending that the cause of action was not in equity jurisdiction and that jurisdiction was vested in the law court.
In May 1972 the chancery court appointed a master in chancery to state an account between the parties and report to the court. The master’s accounting was filed in December 1972, finding that Whte was indebted to Brower in the amount of $83,565.79 and that Brower was not indebted to White. That sum was $120.37 in excess of the amount for which Brower sued White. White filed no exceptions to the master’s report.
On February 7, 1973, Brower filed a motion in chancery to confirm the master’s report. White did not respond to the motion. Thereupon the chancery court on February 26, 1973, entered an order confirming the master’s report. White appealed here' from the order of confirmance and that case was docketed as No. 73-127. Brower filed here a motion to dismiss the White appeal. The motion was denied but "without prejudice to appellee [Brower] to raise the appealability of the order when case heard on merits.”
On February 27, 1973, Brower filed in the circuit court case a motion for summary judgment on its counterclaim for. $83,445.42. The motion was supported by pleadings, affidavit of Brower’s secretary, the master’s report, order in chancery court confirming the master’s report, and a request for admissions of fact propounded by Brower to White which were unanswered. White responded that the action taken in chancery was irregular; that the action of the chancery court had been appealed to the supreme court; that the circuit court had no jurisdiction over the master’s report because it would not become final until the appeal to the supreme court had been decided. The circuit court ruled that it had jurisdiction over the parties and subject matter, that there was no material question of fact to be resolved, and that judgment should be entered, which was accordingly done on April 20, 1973. The amount of the judgment was for $83,445.42.
On May 16, 1973, White dismissed without prejudice its claims pending in the circuit court sounding in tort and contract. On the same day White filed notice of appeal from the summary judgment and that appeal is docketed here at 73-150. That left no matters pending in the circuit and chancery courts except those matters now before this court on appeal:
1. The motion of Brower to dismiss the White appeal from the order of the chancery court confirming the master’s report.
2. The White appeal from the order of the circuit court granting Brower’s motion for summary judgment. (No. 73-150)
3. The White appeal from the order of the chancery court confirming the master’s report. (No. 73-127)
So much for the facts. The summary judgment (73-150) awarded Brower in the circuit court is reversed. That is because the judgment was based on the account between the parties; at the time summary judgment was rendered, that phase of the case was, and still is, in the chancery court. White’s appeal in No. 73-127 (the chancery case) is dismissed for want of a final judgment. Our holdings above recited leave only the issue of accounting between the parties to be litigated, which, as we have said, is presently pending in the chancery court.
It is so ordered. | [
48,
-18,
93,
12,
14,
32,
50,
-98,
88,
-23,
103,
83,
-17,
-45,
20,
109,
-25,
29,
85,
107,
-59,
-77,
50,
-62,
-47,
-13,
-93,
-59,
-71,
111,
69,
-67,
76,
48,
67,
21,
-30,
-126,
-63,
-36,
-50,
4,
57,
105,
-43,
-106,
56,
-24,
-44,
79,
117,
-105,
-21,
46,
28,
-53,
73,
44,
121,
13,
-64,
-7,
-118,
12,
-1,
22,
-110,
118,
-101,
71,
88,
110,
-120,
57,
25,
-23,
115,
-108,
-58,
80,
3,
-99,
12,
34,
98,
-128,
1,
-19,
-120,
-56,
14,
91,
29,
-92,
-112,
32,
3,
35,
-65,
25,
122,
82,
7,
126,
-20,
21,
29,
108,
3,
-50,
-106,
-93,
-113,
-20,
-104,
95,
-18,
-93,
16,
81,
-51,
-110,
92,
71,
123,
27,
-122,
-74
] |
David Newbern, Justice.
This is an appeal of a conviction for driving while intoxicated (DWI). The appellant, Edward Sanders, argues that one may not be convicted of DWI while operating a vehicle on a private roadway. We affirm the conviction.
Sanders was traveling on a private road owned by International Paper in Hot Spring County when he ran off the road into a ditch. A passing citizen called a wrecker and the Hot Spring County Sheriff s Department. Sheriff Cook arrived shortly thereafter and placed Sanders under arrest for DWI.
Sanders was convicted in Malvern Municipal Court, and he appealed to Hot Spring County Circuit Court. In a motion to dismiss he contended that, as DWI is a “traffic offense,” it cannot be committed on private property. The Trial Court denied the motion, holding that one who operates or is in control of a vehicle on a private roadway open to the public may be guilty of DWI.
The State concedes that DWI is a traffic offense, and we have so held. In Robinson v. Sutterfield, 302 Ark. 7, 786 S.W.2d 572 (1990), we wrote:
The term “traffic offense” refers to a violation of a law regulating the operation of a vehicle upon a roadway. The offense “driving while under the influence of intoxicants” is a violation of a law regulating the operation of a vehicle upon a roadway. Thus, “driving while under the influence” is a traffic offense.
Our reason for considering the issue there was to determine whether a juvenile court could have jurisdiction of a traffic offense. We held that it could not because the statutes setting out the jurisdiction of the municipal court did not provide for it. In Weatherford v. State, 286 Ark. 376, 692 S.W.2d 605 (1985), we referred to DWI as a “misdemeanor traffic offense;” however, the question whether it was a “traffic offense” was not at issue.
While we described “traffic offense” in the Robinson case as one involving use of a roadway, we said nothing to limit “traffic offenses” to only those involving use of a roadway, and we certainly did not limit the term to offenses committed on a public roadway. Nor does it follow that, because DWI is a traffic offense, it cannot be committed on private property. Arkansas Code Ann. § 5-65-103(a) (1987) states, “It is unlawful . . . for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.” It contains no location or geographic element, and we cannot read it to add as an element of DWI that the accused have operated or had control of a vehicle on a public highway. Absent such a provision, we note that Ark. Code Ann. § 5-l-104(a) (1987) provides that one may be convicted of violation of a law in this State if the proscribed conduct occurs in this State.
In support of his argument that a traffic offense may not be committed on private property, Sanders relies exclusively on our Court of Appeals’ decision in Hartson v. City of Pine Bluff, 270 Ark. 748, 606 S.W.2d 149 (Ark. App. 1980), which is easily distinguishable. Hartson was convicted of failure to yield the right of way as the result of an accident which occurred in a private parking lot. The Court of Appeals reversed and dismissed the conviction, holding Hartson had not violated the Statute.
The Court of Appeals recognized that a Statute, now codified as Ark. Code Ann. § 27-49-211 (1987), defines “right of way” as “The privilege of the immediate use of the highway.” As Hartson was on a private parking lot, not a highway, she could not have failed to yield to a person who had the privilege of the immediate use of the highway. The Hartson case holds that a person cannot be convicted of failure to yield the right of way unless the right of way is acquired by use of a public highway. It does not imply, as Sanders would suggest, that a traffic offense cannot be committed on private property.
The cases considering the question whether DWI may be committed on private property are collected in an annotation entitled, “Applicability, to Operation of Motor Vehicles on Private Property, of Legislation Making Drunken Driving a Criminal Offense,” 29 ALR3d 938 (1970). The text and supplement cite cases from 21 states which have statutes, like § 5-65-103(a), which make no reference to “highway,” “public roadway,” etc. In each of them it was held that the offense could be committed on private property. No case to the contrary is cited, and we know of none. Language from the Minnesota Supreme Court seems appropriate:
It would be absurd to say that a person driving or operating a motor vehicle while intoxicated or under the influence of intoxicating liquor or narcotic drugs was not guilty of a violation of the statute under consideration merely because at the moment such person was stopped or apprehended he happened to be either on or near a private roadway instead of on a public street or highway, because no one can say when such a person, while in a confused or befuddled state of mind as a result of his or her condition, will leave the private road and pursue a mad, zigzagging course down a public highway or street, with the resulting damage and horrors so frequently reported.
State v. Carroll, 225 Minn. 384, 31 N.W.2d 44 (1948).
Affirmed. | [
-80,
-22,
-40,
62,
123,
64,
58,
14,
-48,
-9,
-28,
19,
-81,
-61,
5,
113,
-93,
-41,
117,
9,
-105,
-89,
87,
67,
-10,
-77,
104,
-49,
-97,
-55,
100,
-10,
13,
48,
-53,
-43,
38,
75,
-121,
90,
-50,
0,
42,
112,
80,
-125,
48,
46,
16,
15,
97,
-97,
-16,
46,
24,
-55,
105,
108,
75,
-91,
-39,
48,
-115,
31,
119,
6,
35,
116,
-103,
1,
-8,
56,
-100,
-71,
0,
-8,
115,
-90,
-46,
-12,
109,
-103,
8,
0,
114,
3,
53,
-57,
-19,
-120,
14,
46,
-67,
-89,
24,
17,
73,
8,
-105,
-97,
122,
48,
2,
-6,
122,
85,
19,
104,
7,
-49,
16,
-79,
-115,
-80,
16,
81,
-61,
45,
49,
101,
-57,
-10,
85,
69,
80,
-101,
-57,
-43
] |
Butler, J.
The only question in this case is whether the oral contract sued on was to be performed within one year from the date it was made. It was and is the contention of the appellant that the evidence showed that the oral contract was not to be performed within one year and was -within the statute of frauds, § 486'2 of C. & M. Digest, which provides: “No action shall be brought * * * to charge any person upon any contract, promise or agreement that is not to be performed within one- year from the making thereof, unless the agreement, promise or contract upon which such action shall be brought or some memorandum or note thereof shall be made in writing and signed by the party to be charged therewith, or signed by some other person by him thereunto authorized.”
The appellee contends that the contract upon which he brought suit and for breach of which he claims damage was to be performed within one year from the date of its making. This issue was submitted to a jury under instructions which are conceded to have been correct. The appellee testified that he was employed by the ap pellant’s agent on the first day of August, 1929, at a certain monthly salary, his time to begin on the day the contract was made and to terminate on the 31st day of July, 1930; that at the time the contract was made he was in the city of Memphis and the services he was to render were to be performed at Helena; that it was about five or six days from the time the contract was made before he actually entered upon the discharge of his duties, but that the understanding was that his time should begin on the first day of August, 1929, and continue for a year.
There were certain statements made by the appellee during his examination which were contradictory of other statements as to the time when his contract should terminate, and which indicated that his employment was to continue for more than one year from the date of the contract. These statements were brought out on cross-examination of the appellee, and his was the only testimony relative to the duration of his contract, the testimony on the part of the appellant being to the effect that there was no contract except a month to month employment. From the testimony of the appellee the jury might have inferred that the contract was to be performed within one year, but there was sufficient equivocation for them to have concluded that the contract was not to be performed within one year. This testimony, therefore, made it clearly a question of fact for the jury, and, as it is admitted that the court correctly declared the law, the verdict and judgment of the lower court must be affirmed. | [
48,
120,
-40,
-17,
10,
96,
42,
-104,
57,
3,
39,
89,
-19,
-57,
28,
113,
-25,
109,
84,
122,
23,
35,
33,
40,
-46,
-9,
89,
85,
-75,
79,
-76,
84,
76,
56,
-62,
-45,
-25,
75,
-51,
16,
74,
-92,
-113,
108,
-7,
-128,
52,
120,
16,
79,
49,
-68,
-13,
42,
21,
79,
109,
56,
75,
25,
-38,
125,
-125,
-123,
111,
21,
-79,
37,
-98,
15,
-8,
28,
-104,
53,
17,
-56,
114,
-74,
-62,
-4,
109,
57,
12,
102,
98,
36,
33,
71,
-100,
-67,
15,
-2,
-113,
-90,
-108,
105,
11,
77,
-66,
-97,
120,
20,
-57,
-2,
-10,
-43,
29,
100,
11,
-113,
-42,
-93,
15,
-26,
-98,
9,
-17,
35,
23,
113,
-49,
-32,
93,
103,
58,
-101,
-98,
-40
] |
George Rose Smith, J.
This is an action by the appellee corporation, which was later succeeded by the appellee partnership, to recover $301.32 under what is captioned an “Automobile G-arage Liability Policy,” issued by the appellant. In 1947 the insured was engaged in the garage business in the city of Waldron. A customer, Virgil Nichols, left a truck at the shop for repairs to the differential. One of the company’s mechanics, Bert Hawkins, worked on the vehicle and then took it out for a test drive. In the course of this test the rear axle assembly broke down, either because defective parts had been installed or because Hawkins had done his work improperly. The work had to be done over again, and the company filed a claim with the insurer upon the theory that an accident within the coverage of the policy had occurred. This suit was brought after the insurer denied liability. At the conclusion of the plaintiff’s testimony both sides requested an instructed verdict, and the court entered judgment for the plaintiff.
The insuring clause of the policy provides that the insurer will pay all sums which the insured shall become obligated to pay “by reason of the liability imposed upon him by law for damages because of injury to or destruction of property . . . caused by accident” and arising out of the insured’s garage business.
Even when construed most strongly against the insurer this language is not broad enoug’h to cover the present claim. To establish a cause of action the insured must prove that it is liable for damages caused by an accident arising from the operation of its garage. If we assume that an accident has been shown, which we do not determine, it still cannot be said that as a result the insured became liable to Nichols for any damages. On the contrary, all that happened was that the insured had to do its work a second time to be in a position to make a charge for its services.
The appellee relies mainly upon the decision in O’Toole v. Empire Motors, Inc., 181 Wash. 130, 42 P. 2d 10, where a similar policy was involved. But that case involved tlie vital element of liability on the part of the garage owner to his customer. A car had been defectively repaired, and as a result it turned over and caused injury to the customer and his wife. They recovered judgments in tort against the garage owner, and the insurer was required to pay the amount of the judgments. In the case at bar the essential factor of the insured’s liability to Nichols is lacking. Immediately after the asserted accident Nichols could not have maintained a suit against the insured merely because the truck had not yet been repaired. The most that can be said is that the insured had to do its work twice before Nichols could be expected to pay the bill, but even then the liability was on the part of Nichols to the insured and not the other way around.
Reversed and dismissed. | [
-16,
120,
104,
-84,
88,
-32,
42,
26,
92,
-64,
37,
-109,
-83,
-61,
85,
111,
-10,
59,
113,
34,
-43,
-93,
23,
50,
-42,
-77,
123,
-43,
-101,
79,
104,
122,
76,
48,
-50,
-107,
-125,
-120,
-60,
60,
-50,
-124,
-102,
-19,
-7,
-128,
-94,
88,
20,
13,
65,
-113,
-53,
46,
25,
-57,
41,
42,
107,
-87,
-63,
49,
-62,
5,
127,
21,
33,
68,
-104,
111,
88,
10,
-112,
-71,
56,
-71,
114,
-74,
-61,
116,
97,
-101,
8,
34,
102,
48,
41,
-19,
-54,
-104,
15,
-78,
15,
-123,
28,
56,
49,
11,
-65,
29,
58,
16,
68,
-2,
-8,
85,
27,
40,
1,
-117,
-108,
-96,
-49,
98,
-98,
11,
-17,
-123,
52,
112,
-49,
-6,
93,
69,
127,
-101,
23,
-126
] |
Frank Holt, Justice.
Appellants attack the constitutionality of Ark. Stat. Ann. § 19-4613 et seq. (Suppl. 1971) (Act 185 of 1965 as amended), which is enabling legislation, and also the constitutionality of an implementing ordinance of the City of Eureka Springs. The city ordinance, as permitted by the enabling act, levied a 1% tax upon the gross receipts or proceeds of motels, hotels and restaurants, owned and operated by appellants, for the purpose of advertising and construcing facilities in the promotion of tourism.
Appellants first contend that the chancellor erred in declaring the enabling act and the implementing ordinance constitutional. It is appellants’ position that the enabling act is unreasonable and arbitrary and without just distinction creates a separate class for taxation consisting only of hotels, motels and restaurants to bear the brunt of the total cost of promoting tourism. Further, appellants contend that the classification does not rest upon some ground of difference having a fair and substantial relation to the object of the legislation so that all persons similarly situated shall be treated alike. Therefore, it is asserted that the enabling act as well as the implementing ordinance is violative of the due process and equal protection clauses of the Fourteenth Amendment of the Federal Constitution.
We first review the controlling rules of statutory construction with reference to the validity of legislation in the area of taxation. In the early case of Green, et al, v. Frazier, 253 U. S. 233 (1920), the court said:
When a state legislature acts within the scope of its authority it is responsible to the people, and their right to change the agents to whom they have entrusted the power is ordinarily deemed a sufficient check upon its abuse. When the constituted authority of the State undertakes to exert the taxing power, and the question of the validity of its action is brought before this court, every presumption in its favor is indulged, and only clear and demonstrated usurpation of power will authorize judicial interference with legislative action.
In Madden v. Kentucky, 309 U.S. 83 (1940), where a state tax set different rates on bank deposits in the state from those out of state, the United States Supreme Court held that the tax was consistent with due process and equal protection. The court said that “in taxation, even more than in other fields, legislatures posses the greatest freedom in classification. Since the members of a legislature necessarily enjoy a familiarity with local conditions which this Court cannot have, the presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes.” Again it was emphasized that “[T]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.” Neither is the state “required to resort to close distinctions or to maintain a precise, scientific uniformity with reference to composition, use or value.” Allied Stores v. Bowers, 358 U.S. 522 (1959). Nor is a legislature required to make meticulous adjustments in an attempt to avoid incidental hardships. Rapid Transit Corp. v. New York, 303 U.S. 573 (1938). However, as appellants assert, “[T]he State must proceed upon a rational basis and may not resort to a classification that is palpably arbitrary.” Allied Stores v. Bowers, supra. The mere fact that a taxation statute is discriminatory in favor of one class is not sufficient to make it arbitrary if that discrimination is based upon a reasonable distinction or if any facts can reasonably be conceived to sustain the act and a difference need not be great. Tax Commissioners of Indiana v. Jackson, 283 U.S. 527 (1931), and Allied Stores v. Bowers, supra.
To meet equal protection and due process requirements the legislative classification for the purpose of taxation must rest upon some ground of difference hav ing a fair and substantial relation to the object of the legislation so that all persons similarly situated shall be treated alike. Royster Guano Co. v. Virginia, 253 U.S. 412 (1920), and Larey, Comm’r v. Cont. Southern Lines, 243 Ark. 278, 419 S.W. 2d 610 (1967). A classification is permissible if the differences in the inpact of the act are reasonably related to the purpose of the law. Jacks v. State, 219 Ark. 392, 242 S.W. 2d 704 (1951). With respect to the extent of the great freedom of the legislature in exercising its broad and discretionary powers in the area of taxation, it was said in Carmichael v. Southern Coal Co., 301 U.S. 495 (1937):
A legislature is not bound to tax every member of a class or none. It may make distinctions of degree having a rational basis, and when subjected to judicial scrutiny they must be presumed to rest on that basis if there is any conceivable state of facts which would support it.
In Carmichael the Alabama Unemployment Compensation Act established a tax scheme levied on employers of eight or more persons for twenty or more weeks in the year. Addressing the numerical requirements, the court said:
Yet this is the type of distinction which the law is often called upon to make. It is only a difference in numbers which marks the moment when day ends and night begins, when the disabilities of infancy terminate and the status of legal competency is assumed. It separates large incomes which are taxed from the smaller ones which are exempt, as it marks here the difference between the proprietors of larger businesses who are taxed and the proprietors of smaller businesses who are not.
To the same effect is Potts v. McCastlain, Comm’r, 240 Ark. 654, 401 S.W. 2d 220 (1966), where we recognized that the mere fact that a classification made by the state is unfair and unequal is not sufficient for invalidating the statute inasmuch as any system of taxation results in many inequalities and perhaps unfairness to particular classes. “This arises more often, not out of the law it self, but out of the peculiar conditions under which classes, or individuals, may find themselves in their manner of doing business or location, rather than out of the classification.” U-Drive-Em Corporation v. Wiseman, 189 Ark. 1163. 76 S.W. 2d 960 (1934).
In Madden v. Ky., supra, it was said “[tjhis court fifty years ago concluded that ‘the Fourteenth Amendment was not intended to compel the State to adopt an iron rule of equal taxation’ and the passage of time has only served to underscore the wisdom of that recognition of the large area of discretion which is needed by a Legislature in formulating sound tax policies.”
Thus, the foregoing authority permits the state legislatures to classify certain groups for taxation purposes if a rational basis exists and if a difference is reasonably related to the purpose of the law. A presumption of validity attends such legislation with all doubts being resolved in its favor. The appellants must shoulder the heavy burden of demonstrating that this type legislation can conceivably have no rational basis. In our view the legislature, by its democratic process of conducting public hearings before committees and the free and open discussions by its members in that forum could very well have determined that the greatest income from the toursit dollar would be to the advantage of the members of this particular class. It is common knowledge from time immemorial that the traveler or tourist primarily must first have lodging and food in the area in which he sojourns.
Therefore, in the case at bar we hold, and appellants cite no cases to the contrary in the factual situation, that the enabling act has a rational basis and appellants’ classification has a fair and substantial relation to its objective.
The appellants, as prevously indicated, next assert the unconstitutionality of the implementing ordinance on the same basis they attacked the enabling act; i.e., that it has no rational basis and the difference in the effect of the ordinance on other persons similarly situated is not reasonably related to the purpose of the law. It was stipulated that hotels and motels derive 97.5% of their income from tourist trade and that 90% is derived by restaurants and other eating establishments. In arriving at these percentage figures, it was agreed that seventeen motels and hotels, five restaurants, cafes and cafeterias were considered. This constituted appellants’ classification. It was further stipulated that other businesses which were untaxed derived the following percentage of their gross receipts from the tourist trade: campgrounds (1) 100%, gas stations (8) 66%, gift shops (12) 86%, art galleries (3) 88%, liquor stores (3) 53%, grocery stores (2) 50%, toy stores (1) 75%, antique shops (3) 90%, museums (1) 90%, cheese shops (1) 70%. There was evidence adduced, however, that there was actually a total of twenty-five restaurants, thirty-two motels and two campgrounds. It was agreed that the stipulated percentages do not take into account any differences in the amount of gross receipts derived by the various business establishments from tourism. Certainly this is a distinction.
Very quickly we observe that it could reasonably be inferred by the legisladve authorities that the gross receipts of those businesses constituting the classification could be greatly in excess of the gross receipts of those untaxed businesses which also benefit from the tourist trade. It is, further, observed that the stipulated percentages of gross receipts derived from tourism are not weighted in terms of the number of businesses in each sub-class.
The two campgrounds are obviously different from hotels and motels inasmuch as the traveler or tourist using them must have with him and furnish most of the necessary facilities for lodging. As to the other untaxed businesses, there also exist differences in “organization, management, and type of business transacted.” See Tax Commissioners of Indiana v. Jackson, supra.
In the case at bar, the ordinance earmarked the funds for expenditure in advertising and providing facilities to promote the tourist industry in that locality. In New York Rapid Transit Corp. v. City of New York, supra, a tax was placed upon a classification of indus tries and earmarked the revenues to relieve unemployment. Even though the funds were earmarked to be spent for that purpose, it was said that the purpose or object of the tax law was to raise revenue. The court said:
We conclude, therefore,' that the provisions of the legislation earmarking the funds collected are not of importance in determining whether or not the classification of the challenged acts is discriminatory.
There it was further said that it is not constitutionally required that a classification for a tax be earmarked or related to the appropriation of the proceeds. New York Rapid Transit Corp. v. City of New York, supra.
In other words, it was there stated the controlling “object” or purpose “is the revenue to be raised by the acts.” We hold that whether the object or purpose of the act and implementing ordinance was merely for raising revenue or its object or purpose was to spend revenue to promote tourism as earmarked by the act, in either event, the appellants have not discharged the heavy burden of proof which they must shoulder to demonstrate the enabling act and implementing ordinance have no rational basis and are not reasonably related to the purposes of the legislation. As previously observed, the legislature could logically and practically envision that appellants, as a classification, would be the beneficiary of not only as great or greater percentage of the tourist dollar (as stipulated) - they also would benefit from much greater gross receipts and profits than the untaxed businesses which also derive a benefit from the sojourner or tourist.
Appellants next contend that the provision in the enabling act providing for a referendum upon the petition of 500 electors is not severable and, further, it is unconstitutional in that it arbitrarily and capriciously discriminates against the smaller cities of the first class (1,500). Eureka Springs is a city of approximately 1,600 population and about 1,233 are qualified electors. At the last general election, a total of 833 voted for a mayor. We hold that the provision requiring 500 petitioners is severable inasmuch as the enabling act is not dependent upon this provision nor are we of the view that the legislature would have refused to enact the legislation without this number. In fact the legislature, in plain and explicit language in a severability clause, provided that any portion of the act was severable to insure its validity. Furthermore, we do not consider that the appellants are in a position to attack this proviso inasmuch as they did not avail themselves of Amendment 7, §1, of our constitution which permits them to refer any city ordinance to a general election upon the petition of 15% of the local voter's of that city. That would have only required approximately 125 petitioners to refer this ordinance to the voters for approval. In oral argument appellees agreed this was a permissible procedure. In the event the petitioners of a city of the first class desire to utilize Amendment 7 as an alternative, that is permissible.
Finally, the appellants, assert the chancellor erred in admitting the testimony of Dr. Charles E. Venus, an expert witness, as to the results of his statewide and local surveys with respect to tourism. A sufficient answer is that, although the chancellor permitted the witness to testify, he specifically found in the decree that appellants’ objection to the testimony was sustained and consideration of the testimony was excluded by him in the determination of the issues.
Affirmed. | [
-11,
-6,
-12,
60,
75,
66,
2,
-106,
99,
-95,
-11,
83,
-19,
-55,
-108,
81,
-9,
-81,
-12,
73,
-42,
-73,
7,
106,
-80,
-5,
-39,
-41,
-75,
79,
-28,
-3,
72,
49,
-54,
-36,
70,
75,
-35,
-102,
-82,
-88,
8,
73,
-47,
-44,
52,
79,
66,
11,
-15,
-49,
-5,
40,
28,
-61,
13,
44,
89,
60,
-21,
-80,
-118,
-99,
91,
22,
48,
102,
-88,
-121,
88,
72,
24,
81,
73,
-8,
115,
-90,
2,
-2,
103,
-39,
4,
42,
98,
-123,
33,
-25,
-88,
9,
62,
-45,
-83,
-92,
-110,
89,
99,
9,
-66,
-99,
124,
4,
79,
-14,
-14,
-43,
95,
44,
-113,
-114,
-108,
-89,
-89,
45,
-106,
67,
-33,
-29,
-80,
117,
-50,
87,
92,
71,
-111,
-101,
-122,
-60
] |
John I. Purtle, Justice.
The appellees were awarded a jury verdict in the amount of $38,460.00 on their complaint against the appellant for negligence in failing to procure the correct insurance coverage. The complaint alleged that the insurance agent failed to obtain the coverage requested on the appellee Gene Bullock’s motorcycle. For their appeal the appellants argue that there was no substantial evidence to support the jury’s verdict, and that the trial court erroneously instructed the jury on the issues and damages. Finding no substantial evidence to support the jury’s verdict, we must agree with the appellant’s first point and reverse and dismiss this case.
Gene Bullock confronted his former insurance agent with a coverage question when his policy came up for renewal. Upon being told that there was no liability coverage for passengers on the motorcycle, he decided to change agents. He then contacted the appellant, an agent for Shelter Insurance Company, and attempted to buy coverage “for my wife or anybody else that would be riding behind me.” When the agent checked with a supervising office, he found that he could write a policy with a provision for “guest passenger liability insurance.” Gene Bullock specifically rejected medical pay coverage. He consistently requested “coverage on anybody riding on his motorcycle with him.” He purchased a liability policy in the amount of $ 100,000/ 300,000 for bodily injury and $25,000 for property damage. For an additional premium of $66.00 he was issued a policy containing liability coverage for passengers on the motorcycle. The insurance policy was issued on March 15, 1982. It provided coverage for a 1982 Honda motorcycle.
Gene Bullock was driving the motorcycle on April 17,1983, when it went off the road, or at least onto the shoulder, and turned on its side, injuring his wife Beth Bullock, who was riding behind her husband as a passenger. Upon presentment of a claim, the insurance company denied it for lack of coverage. The appellees insisted they had liability coverage for her injuries. The insurance company subsequently offered them medical pay coverage. However, this was unsatisfactory, and suit was filed against the insurance company and the agent.
The insurance company was granted summary judgment, which decision was upheld by the Court of Appeals pursuant to Arkansas Rules of Civil Procedure Rule 54(b). The appellees did not proceed further against the insurance company, and the case went to trial against the agent only.
Testimony at the trial was somewhat conflicting. It seems clear, however, that Gene Bullock sought coverage for his wife or any other passenger and rejected medpay in favor of “guest passenger coverage.” It was the appellees’ contention throughout the course of events and at trial that Gene Bullock specifically requested coverage for anyone injured while a passenger on his motorcycle. His strongest testimony was that, after the negotiations were completed and telephone calls to the insurance company’s home office were made, the appellant had stated: “Anybody back there is covered. If you do bodily damage to anyone on that motorcycle they are covered.” The agent testified that all he ever told the appellee was that “anyone riding on the motorcycle would be covered under guest passenger liability, which is for liability when the driver of the vehicle was at fault.”
Apparently the appellees wanted coverage which would apply to any passenger injured on the motorcycle, regardless of fault and without limits. This type of coverage was not offered by either Shelter or any other insurance company. Obviously the appellees either did not read or did not understand the policy issued to them. Otherwise, they would have brought the matter to the attention of the company or the agent from whom they purchased the policy. Moreover, the appellees filled out an application for exactly the type of policy which was issued. Additionally, Gene Bullock admitted he never examined the policy. It is the duty of a policyholder to educate himself concerning matters of insurance coverage. Stokes v. Harrell, 289 Ark. 179, 711 S.W.2d 755 (1986).
According to its express terms, the policy issued to appellees was a liability policy. Liability was not established at the trial below; therefore, it was not determined whether there was any liability coverage extending to the passenger’s damages in this case. In the absence of any substantial evidence that this loss would have been covered under any type of liability policy without proof of fault, there was no issue to be presented to the jury.
Reversed and dismissed. | [
112,
124,
-16,
-83,
9,
99,
50,
10,
119,
-123,
39,
83,
-17,
-29,
4,
45,
-18,
109,
-28,
106,
-41,
-93,
23,
34,
-6,
19,
-5,
-59,
-107,
75,
-28,
-2,
76,
40,
-54,
-43,
-90,
74,
-123,
88,
-58,
6,
-119,
-4,
89,
-48,
112,
122,
84,
67,
33,
-113,
67,
46,
49,
67,
45,
40,
107,
-91,
-39,
49,
-50,
13,
-17,
3,
-79,
36,
26,
33,
82,
10,
-108,
49,
8,
-8,
123,
-74,
-126,
52,
125,
-103,
4,
-26,
103,
49,
21,
-51,
-4,
-104,
55,
127,
15,
-115,
-74,
121,
9,
9,
-73,
-99,
115,
24,
12,
126,
-8,
85,
77,
108,
3,
-50,
-106,
-95,
-27,
98,
-100,
10,
-25,
-117,
54,
117,
-49,
-14,
93,
69,
126,
-37,
23,
-106
] |
J. Fred Jones, Justice.
This is an appeal by Donna Marie Schenck, the minor mother of Patrick Daniel Schenck, and Donna’s mother, Mary Ann Brown, as next friend of Donna Marie and grandmother of the infant child, Patrick Daniel Schenck, from, a- decree of the Garland County Chancery Court denying their petition for habeas corpus in connection with the custody of the infant child, Patrick Daniel Schenck.
The rather sordid background is somewhat immaterial to the question before us on appeal and much of the evidence is indicative of strong feelings so easily generated in child custody cases of this kind. The appellants’ brief begins with the statement: “This is the case of the stolen child, Patrick Daniel Schenck, . . . who was spirited away to a foster home by the Welfare Department, under an illegal order of the Pulaski Juvenile Court.” From our examination of the entire record, we do not find this case as simple as the appellants’ above statement would indicate.
From the recorded background for this litigation, it appears that Mary Ann Brown is a resident of Faulkner County and is the adopted daughter of Mr. and Mrs. Julian Nabholz who are also residents of Faulkner County. Mrs. Brown is 34 years of age and was first married to Tyrone Presley and they were divorced after two years of marriage. She then married Lawrence Schenck in August, 1957, and four children were born of the union. Upon her divorce from Schenck in 1965, she married Joe Brown from whom she is now separated.
Donna Marie is the oldest of Mrs. Brown’s four children and even prior to her separation from Brown, she and her children were dependent upon her elderly mother and father and on state welfare assistance for the bare necessities of life. From Mrs. Brown’s own testimony and other evidence in the record, it appears that her youngest child is afflicted with cerebral palsy, and her son, one year younger than Donna Marie, is afflicted with epilepsy.
It appears from the record that by the middle of 1970 Donna Marie was physically developing into young womanhood at an exceptionally early age and was having considerable difficulty with her reading in school. According to Mrs. Brown, Donna Marie had become “boy crazy” and Mrs. Brown became apprehensive about Donna Marie’s future welfare in her then surroundings and she sought aid and assistance from the Child Welfare Divi sion of the state Welfare Department, which resulted in her relinquishing legal custody of Donna Marie to the Welfare Department with the understanding that Donna Marie would be placed in a suitable orphanage where she would obtain spiritual guidance as well as assistance with her schoolwork. Transfer of custody was accomplished through the written consent of Mrs. Brown and very informal juvenile court proceedings in the Faulkner County Juvenile Court. Through the efforts of the Welfare Department as well as the efforts of Mrs. Brown’s mother and father, Donna Marie was placed in a parochial orphanage in Pulaski County where she continued her schooling in public school and was permitted to visit her relatives in Faulkner County occasionally on weekends.
While Donna Marie was still a ward of the state, she became pregnant and was transferred from the orphanage to the Florence Crittenton Home for unwed mothers, where she remained during the last several months of her gestation period. Donna Marie was transferred to St. Vincent Infirmary where her child, Patrick Daniel Schenck, was delivered by caesarean section on October 6, 1971, when Donna Marie was 14 years of age.
The greatest conflict of the evidence in this case has to do with agreements pertaining to the custody of the infant, Patrick Daniel Schenck, prior to and following its birth. Numerous caseworkers and Welfare Department personnel and personnel from the Florence Crittenton Home testified that Mrs. Brown, as well as Donna Marie, and Mrs. Brown’s mother and father, agreed, prior to the birth of the child, that it would be to the best interest of all concerned that the child be released for adoption. They testified that Mrs. Brown’s mother and father only requested that the adoptive parents should be of the Catholic faith. They testified that clear up until the time of the child’s birth, they were under the impression that everyone concerned, including Donna Marie and Mrs. Brown, was agreeable to releasing the child for adoption. This testimony was denied by Mrs. Brown and Donna Marie. They both testified to rather extreme pressure exerted by the personnel of the child Welfare Division of the Welfare Department directed toward the release of the child for adoption, even to threats of retaining permanent custody of Donna Marie and never permitting her to return home unless they did agree to release the child for adoption.
In any event, following the birth of the child at St. Vincent Infirmary in Little Rock, the Child Welfare personnel went to the hospital to present release papers for Donna Marie to sign. They testified that when they arrived at the hospital, Donna Marie and her nother, Mrs. Brown, had just seen the baby for the first time; that they were both upset and crying and the release papers were not submitted to them for signing. Both Donna Marie and Mrs. Brown opposed the release of the child for adoption and they both testified they had never agreed to release the child for adoption and never had any intention of doing so.
On October 20, 1971, a petition signed hy Jamie Newson was filed in the Pulaski County Juvenile Court alleging Patrick Daniel Schenck to be a dependent and neglected child for the reason:
“That he is without proper parental care and supervision and dependent upon the public for support.”
The form petition then prayed that the court declare said child to be dependent and neglected and to:
“[M]ake an order for the welfare of Patrick Daniel Schenck, placing him in the legal custody of the Director of Family and Children’s Services, State Department of Public Welfare.”
On the same date, October 20, 1971, an order designated “Order of Temporary Custody” was signed by the judge and a referee of the Pulaski County Juvenile Court and it recited as follows:
“This cause coming on for hearing and the Court finds that the said Patrick Daniel Schenck is a dependent and neglected child in that he. is without proper parental care and supervision and dependent upon the public for support.
WHEREFORE it is hereby ordered by this Court that the said Patrick Daniel Schenck, be placed in the temporary custody oí the Director of Family and Children’s Services, State Department of Public Welfare, and that said Family and Children’s Services, State Department of Public Welfare, be authorized to secure proper medical and surgical care for said child until hearing and further order of the Pulaski County Juvenile Court. Said child not to be removed from temporary custody of the Family and Children’s Services without permission of the Pulaski County Juvenile Court.”
Apparently, under authority of this order, the director of the Family and Children’s Services of the state Department of Public Welfare took custody of the infant child; removed it from St. Vincent Infirmary and placed it in a foster home in Garland County, Arkansas. There are no further proceedings in the record before us pertaining to the Pulaski County Juvenile Court order of October 20, and apparently no appeal was perfected therefrom. (Ark. Stat. Ann. § 45-208 [Repl. 1964]).
On January 11, 1972, upon petition filed by Mrs. Brown in the Faulkner County Juvenile Court, that court’s previous order of August 28, 1970, pertaining to the custody of Donna Marie, was set aside and custody reinvested in Mrs. Brown. Then on January 26, 1972, Donna Marie and Mrs. Brown instituted the present litigation by filing their petition for habeas corpus in the Faulkner County Chancery Court against Janet Knight, Director of Family and Children’s Services, state Department of Public Welfare. Upon being advised that the child was in a foster home in Garland County, the Chancery Court of Faulkner County dismissed the petition for want of jurisdiction and, in effect, transferred the matter to the Garland County Chancery Court.
The matter proceeded to hearing on the petition for habeas corpus in. the Garland County Chancery Court where the appellants attacked the validity of the temporary custody order of the Pulaski County Juvenile Court for want of formal hearing and notice of a hearing to Donna Marie or Mrs. Brown, and without waiver from them as to notice of hearing. The validity of the Pulaski County Juvenile Court order placing temporary custody of the child in the state Welfare Department is not actually before us on this appeal. No appeal was taken from that order but it would appear from the record before us, that the order was certainly open to attack. Even though Donna Marie was herself in apparent legal custody of the Welfare Department at the time the order was entered, she or her legal guardian was entitled to notice of hearing; she had no legal guardian and the juvenile court had no authority to appoint one for her. Cude v. State, 237 Ark. 927, 377 S.W. 2d 816. We hasten to point out that this is not an adoption case in any sense of the word and is not a proceeding for the appointment of a guardian. This is simply a habeas corpus case and we think the chancellor was correct in giving primary consideration to the best interest of the infant child.
Ths issues before the Garland County Chancery Court and the issues to which we address this opinion were clearly framed by the chancellor and agreed to by the appellants’ counsel in language from the record as follows:
“THE COURT: All right. The Court is of the opinion in the first place that it has jurisdiction, not only to look into the validity of the Pulaski County proceeding on the habeas corpus but also to go beyond that and look into what is of the best interest of the child and I think that this is a different situation not one of the ordinary causes of habeas corpus where a man is imprisoned and in this issue there is more at stake than whether or not the Pulaski County Juvenile Court took proper action in what it did.
MR. DONOVAN: That’s right.
THE COURT: So the Court is prepared to go into the whole matter. I’d like for all those who are to testify to please stand and be sworn.”
At the hearing in chancery court Mrs. Brown testified that she herself was an adopted child of Julian and Marie Nabholz, having been adopted in 1937. She testified that she was 34 years of age; that she first married Tyrone Presley from whom she was divorced after two years. She said she married Lawrence Schenck on August 14, 1957, lived with him eight years and was divorced from him in 1965. She said that following her divorce from Schenck and subsequent unsuccessful marriage to Joe Brown, she almost had a complete nervous breakdown requiring one week’s hospitalization. She said that Donna Marie developed a reading problem in the second grade which retarded her progress in school, and did not improve in subsequent grades. She said she was concerned about Donna Marie “because she was at the stage of being boy crazy and was concerned that something could happen in that field,” so she contacted the Child Welfare Department in connection with the problem. She said that she was told there was more than a possibility that Donna Marie could be gotten into “a reading foundation” if she was at the orphanage in Pulaski County, so she signed papers for Donna Marie to become a ward of the Child Welfare Division. On this point she said:
“I signed the papers at the Court House so that they could take Donna. And like I said — Faulkner County. I did not go before a Judge or anything. There was no hearing on that. I just like a lot of people did not read the papers I signed. I believed they were telling me the truth.”
Mrs. Brown then testified to visiting Donna Marie in the Florence Critteriton Home, where she remained until after she was delivered of child by caesarean section. She said she requested that Donna Marie be permitted to come home after the birth of the child but that the Welfare Department personnel threatened to not let Donna Marie come home at all unless she and Donna Marie signed papers releasing the child for adoption.
Mrs. Brown said that during the pendency of this litigation well-wishers in Faulkner County have given over $100 worth of baby clothes, a brand new baby bed and playpen, a stroller, a walker, jumpseat, baby bottles and a complete layette for a babv, and that she and Donna Marie are ready, able and willing to properly care for the infant child if it is returned to them. She said that she and her children are being supported by public welfare; that Donna Marie was born on December 18, 1957, and is 14 years of age; that her next oldest child Edward, was born January 11, 1959 and is now 13 years of age; that her next oldest child Debra Lynn, was born December 26, 1960, and is now 11 years of age, and her youngest child, Julia Ann, was bom March 17, 1963, and is now 9 years of age.
As to the health of her children, Mrs. Brown testified on direct examination as follows:
“A. Well, starting with Donna her health is perfrct. The only problem she has is her reading problem. She has a few little problems now that she — from childbirth — but she has no disease nor sickness that would keep her from school or anything. Eddie right now is having trouble. The doctor says that there is a possibility that he is on the seizure disorder, but they are trying to take a EEG if it’s a possibility that it could be a brain tumor or blood clot. The boy did go into a seizure after he had one of his severe headaches that he’s been having. Debbie — Eddie wears glasses. Debbie wears glasses. There’s nothing else wrong with her. Eddie went — until he went out of school because of being sick, was a straight A student in school. Debbie doesn’t do well in school but she’s at the age where she’s not interested. But sickness— Debbie just doesn’t get sick. The only child that I have that’s really sick is Julia Ann Schenck and she attends Faulkner County Day School for Crippled Children. She has cerebral palsy and she — her legs are weak and she has lost the use of one arm, but she’s attended school for three years. She’s been on medication ever since she was two years old. And she lives the life of a normal child actually.
Q. Have you spent considerable time taking this child to the Children’s Clinic for braces and things of that kind?
A. Yes, sir, we took her to Greenville, South Carolina, one year, and she got her braces there at the Shriner’s Hospital in Greenville, South Carolina. She’s now under the care of the Arkansas Crippled Children Clinic. She just had an eye operation, and it was very successful at the the Children’s Hospital. She doesn’t have to wear glasses any more. And she’s seen at the University of Arkansas Medical Center besides the Arkansas Crippled Children’s Clinic.
Q. And Eddie, was it yesterday that you took Eddie to the neurologist?
A. No, that was the day before. We called yesterday morning since the man who gives the EEG was unable to administer it. The Neurology Clinic said they’d have to wait till they get the result of this before they could actually give, you know, any definite answer on Eddie. That they needed the EEG, and I was promised that as soon as the man came back that they would get it as soon as possible.”
On cross-examination Mrs. Brown testified that she was pregnant with Donna Marie when she was divorced from Pressley and married Schenck. She said she had been married to Presley for a period of two years when he got in jail and she obtained a divorce. She said she had been receiving food stamps from the Welfare Department when she and her children were living in a trailer furnished by her parents, but that she only started receiving cash payments from the Welfare Department in 1971. She said that her husband, Joe Brown, was hospitalized for serious injuries he sustained in a fight; that she is now separated from Brown and will obtain a divorce as soon as she can afford one. She said that since receiving cash money together with food stamps she has rented a nicer trailer in a better environment than the one furnished by her parents. She said it is her understanding that the money she receives from the Welfare Department is based on the number of dependents and that her cash payments now amount to $116 per month. She said she was paying $100 a month for rent on the trailer; that her child with cerebral palsy is in a special school and is required to take phenabarbital and tridione daily. She said her son Eddie has been placed on phenabarbital therapy and was given a three month supply of the medicine until it is thoroughly determined that it is what he needs for his condition. She said her parents help out on the medical bills.
The substance of Mrs. Brown’s testimony pertinent to Donna Marie’s ability to care for her child is to the effect that in her opinion Donna Marie is thoroughly capable of being a mother to the infant child; that there is no question that she and Donna Marie together can do a good job of caring for the child; that the kind people of Conway have given her a baby bed and clothing for the child and with the continued assistance of the Welfare Department in food stamps and cash money, she feels that she and Donna Marie can make a satisfactory home in the trailer space she has available for the child, and that it would be to the best interest of all concerned if Donna Marie was awarded the custody of the child. Mrs. Brown said that besides the $116 in cash she receives from the Welfare Department, she also receives $148 worth of food stamps per month. She said that the trailer she now rents has two bedrooms with a couch that makes into a full bed. She said Donna Marie shares the double bed with her; that Debby and Julie, the two youngest children, share the other bedroom, and the livingroom couch is made into a bed for Eddie.
Donna Marie testified that she was bom December 18, 1957, and was 14 years of age at the time she testified. She said that she never did get to hold her baby after it was born but that she would like to. She said she already knows how to do most things necessary in caring for a baby and that her mother would help her. She said if given the custody of the child, her mother could take care of it in the daytime while she is in school and that she could take care of it at night. She said she loves her child dearly and wants possession and custody of it.
Mr. Julian Nabholz testified that he adopted Mrs. Brown in 1937 when she was five weeks old; that she graduated from high school and attended Arkansas State Teacher’s College. He testified as to Mrs. Brown’s marriage to Schenck, the birth of the four children and the divorce from Schenck. He was then asked and answered the following questions:
“Q. How would this new baby if the court gives it to them today, how would it fit into the home?
A. Well, right now, I think they are just in the temporary ah — motel—I mean, house trailer.
Q. Yes, sir?
A. And until they find a bigger house, and I’ve got some property up on Beaver Fork Lake that I’d be willing to give them a deed with it.
Q. To build a home?
A. Build about a three bedroom house.”
Mr. Nabholz testified that it was necessary for him and his wife to contribute substantially to Mrs. Brown and her children for food and clothing until they started receiving money from the Welfare Department, and that his and his wife’s burden has been considerably relieved by the Welfare Department.
Mrs. Winburn, Social Worker for the state Welfare Department in Faulkner County, Dick Deitz, Child Services Field Supervisor in Faulkner County, Mrs. Mary Jane Moix, Social Worker in the Arkansas Department of Social Services for Faulkner County, Mr. Bryan David Cordell, Field Supervisor for the Family and Children’s Division of the Arkansas Social Services, and Mrs. Darla Byers, Case Worker for the Family and Children’s Services of the state Welfare Department, Mrs. Mary Jane Madigan, Supervisor of unmarried mothers for the Family and Children’s Services, and Bobbie Smith, Executive Director of the Florence Crittenton Home, as well as Dr. John E. Peters and Cleo Goolsby, who interviewed Mrs. Brown and Donna Marie under direction of the chancellor, all testified under questioning by the chancellor as well as the attorneys. It would only lengthen this opinion to set out their testimony in detail but the substance of all of it is to the effect that Mrs. Brown is an unemployed mother of four dependent children, two of whom are afflicted, as already set out; that Mrs. Brown is totally over whelmed by the problems she already has, including her own marital problems past and present and, is totally unprepared mentally, physically and financially to take on the additional responsibility of properly caring for an infant child in her present surroundings. None of the social workers who have been involved in this case recommended awarding custody of the child to its mother and they all testified emphatically that it would be to the best interest of the child, and to the best interest of all parties concerned, that the custody of the infant not be awarded to the mother in this case. They all agreed that Donna Marie appears to have the normal intelligence of a 14 year old child but they all agree that she is less mature than the average child of her age, and is thoroughly incompetent to properly mother an infant child in her present circumstances and surroundings.
The chancellor’s final order from whence comes this appeal recites as follows:
“Now on this 5th day of January, 1973, the Chancery Court of Garland County having received the depositions of Dr. John Peters and Miss Cleo Goolsby of the University of Arkansas Medical Center, Division of Child-Adolescent Psychiatry, and having given the depositions due consideration, and the Court having taken under advisement the evidence in this case and considering the evidence of Nancy L. Winburn, Richard Dietz, Mary Jane Moix, Bryan Cordell, Darla Byers, Mary Jane Madigan, Bobbie Smith, Estelene Duke, Mrs. Blake Browning, Donna Marie Schenck, Mary Ann Brown, Mr. Julian Nabholz, and other matters and things, this Court finds as follows:
1.The actual issue to be decided by this Court is the determination of ultimate custody, based upon the best interests of the child.
2. From the testimony and the Court’s personal observations of the witnesses, the Court is of the opinion that Donna Marie Schenck is completely immature and unable to care for her child properly.
3. The court is of the opinion that Donna Marie Schenck would not in any way have objected to adop tion proceedings or otherwise attempted to regain custody of her child except for the pressure applied by her mother, Mary Ann Brown.
4. From the testimony and personal observations of Mary Ann Brown, the Court is of the opinion that she manifests substantial instability and is unable to cope with her past and present problems and would be unable to provide proper care for the child.
5. It would not be for the best interest of the child that it be raised in a family consisting of an unstable grandmother with marital problems, an immature fourteen year old mother, a thirteen year old uncle subject to epileptic seizures, an eleven year old aunt who is failing in school, and a nine year old aunt with cerebral palsy, all living in a mobile home and supported by Arkansas Social Services.
WHEREFORE, the Court finds that the petition for a Writ of Habeas Corpus should be denied and is hereby denied and custody of Patrick Daniel Schneck is confirmed in the Arkansas Social Services.”
From the record before us we are unable to say that the chancellor’s findings and order are against the preponderance of the evidence in this case. In the appellants’ brief their attorney argues that the basic problem of the family is poverty and we are urged to grant the petition for habeas corpus on trial de novo. He argues as follows:
“Habeas Corpus should be granted, and the Order of the Chancellor denying the writ should be reversed, together with an immediate mandate vesting custody of Patrick Daniel Schenck in his mother, Donna Marie Schenck, as she is now 16 years of age, and married.” (Our emphasis).
At another point in appellants’ brief appears this statement:
“She is now two years older, and is now 16 years of age, and, is now married.”
If Donna Marie has married and now has a home of her own, such evidence is not in the record now before us and we, of course, are confined to the record. If Donna Marie’s present age and marital status have brought about such change in condition that would justify a change in custody, there is nothing to prevent her from presenting such evidence as may now be available but, from the record before us, it would appear that the Chancery Court of Garland County would be the proper forum in which to present such evidence.
The order of the chancery court is affirmed on the record now before us.
Affirmed.
Byrd, J., dissents. | [
-48,
-18,
-19,
60,
26,
-31,
10,
62,
66,
-93,
-10,
115,
-85,
-12,
68,
105,
-21,
111,
81,
105,
-61,
-73,
23,
64,
-110,
-14,
-70,
-41,
-13,
74,
-92,
-42,
72,
114,
-118,
89,
102,
-102,
-51,
-104,
-118,
-119,
-71,
103,
81,
-46,
36,
107,
90,
78,
49,
30,
-90,
44,
116,
-49,
40,
46,
-39,
59,
-48,
48,
75,
23,
-49,
2,
-94,
4,
-66,
-91,
-56,
42,
28,
56,
0,
-24,
115,
-122,
-122,
116,
-49,
-103,
13,
96,
98,
-127,
-4,
-27,
-8,
-120,
70,
-66,
-99,
-90,
-102,
105,
66,
69,
-73,
-68,
108,
84,
41,
-8,
98,
68,
39,
-20,
-84,
-49,
-42,
-79,
-116,
56,
-118,
51,
-29,
-127,
34,
113,
-49,
-110,
84,
71,
59,
-103,
-34,
-6
] |
John I. Purtle, Justice.
On appeal from the decision of the West Fork Municipal Court, the appellant was convicted of DWI in the Washington County Circuit Court. For reversal of that judgment he contends that his constitutional rights were violated by his trial in the West Fork Municipal Court, and that the trial in that court was in violation of Ark. CodeAnn.§ 16-85-201 (1987). We find no error in the appellant’s trial in circuit court and therefore affirm that decision.
On August 1,1987, the appellant was attempting to operate his vehicle at about 2:30 a.m. on Highway 16, slightly east of Elkins, Arkansas, when he ran into a ditch. A deputy sheriff picked him up at the scene and transported him to the Washington Regional Hospital where blood samples were drawn for the purpose of testing the appellant’s blood alcohol content. The appellant was taken from the hospital to the Washington County Jail in Fayetteville. He was charged with driving while under the influence, failing to keep his vehicle under control, and refusing to take further tests pursuant to the implied consent law.
The appellant was assigned to be tried in the West Fork Municipal Court on August 25, 1988. The record shows that on that date he was found guilty of DWI in the West Fork Municipal Court and sentenced to seven days in jail and a fine of $442.00. That judgment was then appealed to the circuit court. There is no record of the proceedings in the municipal court other than the judgment. However, at the trial de novo in circuit court, the appellant argued that is was prejudicial error to have allowed the appellant, who was arrested near Elkins, where a municipal court existed, to be taken to Fayetteville, where another municipal court existed, and then to be ordered to the West Fork Municipal Court for trial.
The arguments made in the circuit court concern only the jurisdiction and venue of the municipal court. However, we are not reviewing the conviction and judgment in municipal court in this appeal. Here, we consider only the judgment appealed from, which is a judgment of conviction from the circuit court of Washington County. That circuit courts have county-wide jurisdiction is not contested in this appeal. A trial de novo was held in the circuit court and the appellant apparently received a fair trial on the merits of his case. There is no allegation to the contrary.
In a companion case, Griffin v. State, 297 Ark. 208, 760 S.W.2d 852 (1988), we have reached the same conclusion. We therefore do not deem it necessary to cite the decisions discussed in the Griffin opinion.
It is apparent that the appellant’s disagreement with the manner in which his case was handled concerns alleged forum shopping on the part of arresting officers. He also argues that municipal judges, who are not elected county-wide, should not have jurisdiction beyond the geographical boundaries of their respective municipal courts. We do not reach the merits of either contention. Moreover, this opinion should not be interpreted to mean that municipal courts may take jurisdiction of any and all cases which may arise in their respective counties.
Affirmed.
Glaze, J., concurs.
Holt, C.J., Hickman and Newbern, JJ., dissent.
See dissenting opinions in Griffin v. State, decided this date. | [
80,
-22,
-27,
28,
41,
65,
18,
-98,
81,
-125,
-28,
115,
-89,
-62,
5,
123,
-29,
-37,
116,
105,
-43,
-73,
87,
97,
-102,
-69,
107,
71,
-73,
73,
-28,
-12,
93,
48,
-50,
93,
101,
72,
-27,
-36,
-58,
2,
-55,
120,
64,
19,
56,
38,
18,
15,
49,
-97,
-58,
46,
16,
-62,
-19,
44,
73,
-83,
88,
59,
-56,
31,
95,
22,
-95,
-124,
-101,
3,
90,
56,
-108,
49,
104,
-8,
115,
-90,
-126,
-12,
111,
-103,
12,
36,
103,
1,
29,
-49,
-84,
-88,
14,
-66,
29,
-91,
-104,
65,
75,
13,
-105,
-35,
106,
22,
13,
-8,
104,
-59,
89,
104,
-91,
-50,
-112,
-79,
-49,
44,
-128,
83,
-61,
13,
52,
113,
-49,
-14,
84,
69,
120,
27,
-34,
-105
] |
Dunaway, J.
Disposition of some $800,000 worth of corporate stocks and $17,426.33 in cash, the property of Mrs. Ida M. Bottoms who died in Miller County, Arkansas, on December 21, 1944, at the age of 83, is involved in this appeal.
This action arose as a suit by the heirs at law of Mrs. Bottoms against Winston Montgomery, as Executor of the estate of Mrs. Bottoms and the Texarkana National Bank of Texarkana, Texas, which claimed to hold the stocks and cash in question as trustee under a trust created by the decedent. Involved are certificates of stock in Crowell Long Leaf Lumber Co., Inc., Meridian Land & Mineral Corporation, and Crowell Land & Mineral Corporation, which will hereafter be referred to as the ‘ ‘ Crowell Stocks. ’ ’ The cash item had reverted to the decedent from a trust created by her in 1928.
Some time after the death of Mrs. Bottoms her executors filed an inventory in the Miller Probate Court, listing, among other assets, the Crowell Stocks and the cash item of $17,426.33. Later, on advice of counsel, who had not been consulted when the inventory was originally filed, Montgomery, now sole surviving executor under the will of Mrs. Bottoms, filed in the Probate Court a petition to delete this property from said inventory. The heirs at law of Mrs. Bottoms intervened in opposition to said deletion. The probate judge then suggested that since the question of title to the disputed property was involved, a suit to determine this matter be brought. The heirs at law, appellees here, then commenced the instant action in the Miller Chancery Court.
On January 27, 1944, Mrs. Bottoms went to the Tex-arkana National Bank. There she executed contemporaneously a “Living Trust Agreement” and her Last Will and Testament. Both instruments had been prepared at her request by J. K. Wadlev, an old friend of Mrs, Bottoms and a stockholder and director in the bank. At the time these instruments were executed, the Crowell Stocks were in possession of the bank, pledged as security for a loan in excess of $50,000. Under the provisions of the trust agreement these stocks, and other securities not here involved, were to he held by the bank as trustee. Mrs. Bottoms was to receive the net income of the trust for life, and at her death the income and principal of the trust estate were to be distributed to designated beneficiaries, which for the most part were various Baptist institutions. The trust agreement contained a provision that it could be ‘ ‘ amended, modified or revoked in whole or in part by the Trustor at any time during her lifetime. ’ ’
The residuary clause of Mrs. Bottoms’ will reads as follows: “I give, bequeath and devise to Texarkana National Bank of Texarkana, Texas, to be added to and become a part of, and subject to all the terms and conditions of living trust created by me under date of January 27th, 1944, all of my estate remaining after paying all debts legally chargeable to same, including fees to my executors.”
The Crowell Stocks were kept in possession of the Bank under its pledge at all times from the execution of the trust instrument and will until the loan was paid in full by the Executor under order of the probate court in January, 1946.
It is admitted that since no attack was made on the will within six months after it was duly probated and notice thereof published, the plaintiffs are now barred by limitations from contesting it, under the provisions of Act 401 of the Acts of 1941 (Ark. Stats. 1947 § 60-210).
It is the theory of the appellees’ case that the inter vivos trust attempted to be created by Mrs. Bottoms was invalid for several reasons: (1) She did not have mental capacity to execute the instrument; (2) There was no delivery of the stocks and acceptance of the trust by the Bank, since it continued to hold said stocks in its capacity as creditor and not as trustee; (3) The terms of the trust are violative of the rule against perpetuities. Appellees further contend that although the validity of the will is not now open to attack, the residuary clause therein, above quoted, was not sufficiently definite to create a testamentary trust; and that even if this was attempted by the testatrix, the trust instrument could not be incorporated by reference in the will, since it was amendable and revocable during her lifetime. Appellees therefore contend that as to the property now in litigation there was a partial intestacy and that they take as the heirs at law of the decedent.
Appellants contend that there was a valid trust created by Mrs. Bottoms on January 27, 1944; but that even if this is not so, the property in question passed to the Bank as trustee under a testamentary trust created by the residuary clause in the will. It is appellants ’ theory that the trust instrument was incorporated in the will by reference.
Much of the proof adduced at the trial of this cause was on the issue of the mental capacity of Mrs. Bottoms. It is unquestioned that she had been ill for many years, and admittedly on some occasions was not mentally competent. There was, however, a sharp conflict in the testimony as to her capacity at the time the challenged instruments were prepared at her request and executed by her.
The Chancellor made no special findings, either as to the competency of Mrs. Bottoms or as to any of the other issues raised by the pleadings and proof. The decree, to quote the pertinent parts reads: ‘‘The Court, being-well and sufficiently advised and having jurisdiction of this cause, finds and decrees in favor of the plaintiffs and against the defendants, Winston Montgomery, as Executor of the Estate of Ida M. Bottoms, Deceased, and Tex-arkana National Bank of Texarkana, Texas.
“To all of which findings, holdings, decrees and orders of the Court, save the finding and decree with respect to the item of $17,426.33 aforesaid, the defendants Winston Montgomery, Executor of the Estate of Ida M. Bottoms, deceased, and Texarkana National Bank of Tex- avkana, Texas, except and request that their exceptions bo noted of record, which is accordingly done, and they and each of them pray and are granted an appeal to the Supreme Court of Arkansas.”
While there is a difference of opinion among the members of the court as to the validity of the inter vivos trust, we are unanimously of the opinion that in any event, the Crowell Stocks passed to the Texarkana National Bank as trustee under the residuary clause of the will. In view of this conclusion, only those points rele-van! to our decision on this question need be discussed.
In accordance with the weight of authority, the rule in Arkansas is that instruments definitely identified and in existence when a will is executed may be incorporated therein by reference. Rogers v. Agricola, 176 Ark. 287, 3 S. W. 2d 26; Kinnear v. Langley, Executor, 209 Ark. 878, 192 S. W. 2d 978, discussed in 1 Arkansas Law Review 180. The general rule in regard to incorporation of a document by reference as approved by this court in the Kinnear case is as follows:
“If a will, duly executed and witnessed according to statutory requirements, incorporates into itself by reference any document or paper not so executed and witnessed, whether such paper referred to is in the form of a will, codicil, deed, or a mere list or schedule, or other written paper or document, such paper if it was in existence at the time of the execution of the will, and is identified by clear and satisfactory proof as the paper referred to, takes effect as a part of the will, and is entitled to probate as such.”
By the residuary clause in her will Mrs. Bottoms clearly devised.to the Texarkana National Bank all the residue of her estate “to be added to and become a part of, and subject to all the terms and conditions of living trust created by me under date of January 27th, 1944.” The extrinsic document referred to is clearly identified. Indeed there is no dispute as to the identification of the instrument sought to be incorporated by reference.
Was the trust instrument in existence when the will was executed? The undisputed testimony of the witnesses was that the trust agreement was in existence when the testatrix signed her will. J. K. Wadley, who had prepared both instruments, testified that he had done so some days prior to the date of their execution; that on January 27, he*and the other two witnesses to the will came to the office of Winston Montgomery in the Bank, where both instruments were signed by Mrs. Bottoms in their presence. It is true, as appellees point out, that these witnesses were unable to say which document Mrs. Bottoms signed first, but that is immaterial. The requirement for incorporation by reference is only that the extrinsic document be in existence, not signed, and this fact is established by the undisputed proof.
The failure of the trust agreement to create a valid inter vivos trust when executed by Mrs. Bottoms, which we have assumed for the purpose of this decision, does not prevent the incorporation of that “living trust agreement” into the will by reference. In Rogers v. Agricola, supra, a prior invalid will was held to have been incorporated by reference into what the testator thought was only a codicil to an earlier will, and the two documents together constituted his “whole will.” As stated in 1 Page on Wills (Lifetime Ed.) § 266, p. 522: “If incorporated by reference it makes no difference whether the original document of itself was valid at law or not. A deed invalid because it never was delivered, may be incorporated in a will. A prior defectively executed will, or the will of another person, or a part of the will of another person, may thus he incorporated. Such incorporation may prevent lapse of a legacy given by a prior will. The account books of testator may be incorporated by proper reference. The incorporated document may be treated as part of the will for the purpose of ascertaining the beneficiaries and the share to be given to each. ’ ’
An invalid deed was held incorporated in a will by reference, even though the testator in his will had referred to the property as having been already disposed of by dood, where the court found from all the circumstances an intent on the part of the testator that the property should go to the one mentioned in the will as grantee in the deed. See In re Dimmitt’s Estate, 141 Neb. 413, 3 N. W. 2d 752, 144 A. L. R. 704, discussed in 41 Michigan Law Review 751.
Appellees’ final argument that the “living trust agreement” could not have been incorporated by reference is based upon the fact that the trust instrument was amendable and revocable. To support this contention appellees cite the case of Atwood et al v. Rhode Island Hospital Trust Co. et al., 275 Fed. 513 (C. C. A. 1st). The case supports appellees’ position, but represents the minority view. In Koeninger v. Toledo Trust Co., 49 Ohio App. 490, 197 N. E. 419, the court allowed incorporation by reference of the unchanged portions of an amendable trust instrument. For discussion of this case see 49 Harvard Law Review 498. An amendable and revocable trust instrument was held incorporated by reference, and effect was given to three amendments made prior to the execution of the will, but not to a fourth made after execution of the will, in President and Directors of Manhattan Co. v. Janowitz et al., 14 N. Y. Supp. 2d 375, discussed in 39 Columbia Law Review 1256. Incorporation by reference of amendable or revocable trust instruments was also permitted in Old Colony Trust Co. v. Cleveland, 291 Mass. 380, 196 N. E. 920; Swetland v. Swetland, 100 N. J. Eq. 196, 134 Atl. 822; In the Matter of Willeys Estate, 128 Cal. 1, 60 Pac. 471.
The general rule in this regard is stated in 1 Page on Wills (Lifetime Ed.) § 260, p. 513 as follows: “If the testator has created a trust, reserving power to amend the trust, the trust instrument may be incorporated in the will by reference, but the operative effect of the will cannot be changed by a subsequent modification of the trust instrument, if the modification is not executed in accordance with the wills act. Effect is to be given to the will and to the provisions of the trust instrument as they existed when the will was executed. No effect can be given to the subsequent modification of the trust instru ment if it is not executed in accordance with the act which regulates the execution of a will. ’ ’
In the case at bar no problem arises as to whether amendments to the instrument can be given effect, for no changes were ever in fact made in the instrument as it existed at the time the will was executed.
Having decided that the trust instrument was incorporated by reference in the will of Mrs. Bottoms, there is no occasion to pass upon the mental capacity of the decedent. “If the document is of such nature and is so referred to in the will, as to comply with the requirements already given, it is treated as part of the will, and as if it were set forth therein in full.” 1 Page on Wills. (Lifetime Ed.) § 266, p. 522. Since no attack was made upon the probate of the entire will within the time provided by law, appellees cannot now single out for attack a portion of the will which was incorporated by reference and became as much a part of the will as any of its other provisions. They cannot do indirectly what they are barred by statute from doing directly.
Two other contentions of appellees bearing on the validity of the testamentary trust must be considered, however. It is urged that the terms, of the trust violate the rule against perpetuities. The pertinent provision of the trust instrument reads as follows: ‘ The Trustee is hereby directed to pay, out of the Trust Estate, commencing upon the Trustor’s death, all of the cash received from both income and principal and remaining after the payment of the Trustee’s fees and expenses as herein-before provided, in the following manner, to-wit:
“ (1) There shall be paid in semi-annual installments all of the net income and principal available in cash, to the following, in proportionate amounts, until they all shall have received the amount set up for them as follows: (Then follows a list of beneficiaries with the amount of money each is to receive.)
“(2) After the payments provided for in Article (1) of this paragraph have been made in full, then in semi-annual installments all of the balance of the avail able casli net income and principal of the Trust Estate shall be paid in tlie proportions shown, to the following (Seven Baptist institutions are named to receive designated shares of the balance of the trust estate.).
Under the terms of the trust instrument as incorporated in the will, legal title to the Crowell Stocks vested immediately upon Mrs. Bottoms’ death in the Bank as trustee. Equitable title likewise vested immediately in the named beneficiaries. Since there was a present vesting of both legal and equitable title, and only a postponement of full enjoyment of the estate by the charities named, the rule against perpetuities has no application in this ease. See Ward v. McMath, 153 Ark. 506, 241 S. W. 3; Garrett v. Mendenhall, Executor, 209 Ark. 898, 192 S. W. 2d 972.
Appellees also contend that by seeking to sustain the validity of the inter vivos trust, appellants made an election of remedies and could not as an alternative defense to appellees’ action, claim that the bank took the Crowell Stocks under a testamentary trust if the inter vivos trust failed. In appellees’ complaint it was alleged that the inter vivos trust was invalid, that the stocks in question did not pass under the residuary clause of the will, and that the appellees took as the heirs at law when Mrs. Bottoms died intestate as to this property. The doctrine of election of remedies is not in the case. As the court said in State Life Ins. Co. of Indianapolis v. Mitchell, 126 F. 2d 867 (C. C. A. 8th) at p. 870: “The doctrine stated in its simplest form means that, if a party has two inconsistent existing remedies on his cause of action and makes choice of one, he is precluded from thereafter pursuing the other. ’ ’ In order for the appel-lees in the instant case to recover, it was necessary for them to show not only that there was no valid inter vivos trust, but that the Crowell Stocks were' not disposed of under the residuary clause in the will. In defending the issues raised by the plaintiffs, there was no ‘ ‘ election of remedies” by the appellants, defendants below.
We hold that the Crowell Stocks passed to the Tex-arkana National Bank as trustee under a valid testa mentary trust created by the residuary clause of the will of Mrs. Bottoms. As to the cash item of $17,426.33 an additional question is presented.
It is appellees’ position that appellants did not pray an appeal from the chancellor’s holding in favor of appellees as to the cash item, and therefore that this question is not before us. As already pointed out, the trial court made no special findings, but found “in favor of the plaintiffs and against the defendants” and ordered the stock certificates and cash turned over to the executor. Appellants excepted to all the findings and holdings of the chancellor “save the finding and decree with respect to the item of $17,426.33 aforesaid.” Appellants argue that the decree of the trial court simply meant that the cash item was ordered delivered to the executor, and if the trust instrument was held incorporated in the residuary clause of the will by the court, then the executor would return the money to the bank as trustee and hence there was no necessity for an appeal from the court’s finding as to this item.
The decree finding “in favor of the plaintiffs and against the defendants ’ ’ was a finding against appellants as to all issues in the case. The effect of this was to hold that the appellees, as 'heirs at law of Mrs. Bottoms, would take title to the cash as against any claim thereto by the bank as trustee. Since no appeal was taken from the ruling of the chancellor as to the cash item, we cannot consider the correctness of that part of the decree. Baker v. State, Use of Independence County,-210 Ark. 690, 197 S. W. 2d 759; Rural Realty Co. v. Buckner, 203 Ark. 474, 158 S. W. 2d 17.
The decree is affirmed in part, reversed in part, and the cause remanded for proceedings in accordance with this opinion. | [
112,
109,
-20,
12,
58,
-32,
42,
-70,
82,
-96,
37,
83,
107,
-26,
81,
121,
-13,
13,
-47,
104,
-89,
-75,
83,
-28,
75,
-109,
-71,
-59,
-76,
95,
36,
-41,
77,
97,
-54,
21,
-46,
-94,
-57,
92,
30,
1,
-117,
-56,
93,
-64,
56,
-89,
12,
79,
65,
44,
-14,
41,
30,
107,
104,
46,
-1,
40,
80,
-94,
-118,
-122,
-1,
23,
1,
6,
-110,
-127,
-56,
40,
-112,
52,
8,
-88,
123,
38,
86,
84,
43,
29,
12,
106,
-29,
1,
-91,
-25,
-104,
-116,
38,
-65,
-115,
-89,
-30,
73,
19,
105,
-67,
28,
126,
-119,
19,
-4,
58,
-51,
92,
104,
-123,
-113,
-42,
-127,
29,
-67,
-100,
19,
-5,
71,
50,
117,
-39,
-94,
93,
7,
116,
-101,
-114,
-15
] |
Minor. W. Millwee, Justice.
Appellee, Garland Snyder, operates a grocery store in a residential section of the City of Harrison, Arkansas. By this suit against the City of Harrison and its mayor, appellee challenges the validity of Ordinance 393'of said city which amended Ordinance 385, an ordinance regulating the manner of collection and disposal of garbage and waste by the Sanitation Department of the city and fixing a schedule of fees to be charged for said services.
After levying a fee of $1.50 per quarter for each single family dwelling house and each unit of a multiple dwelling house, actually occupied as a residence, Section One of the amended ordinance provides: “All business, commercial and industrial houses, and other non-residential houses of any nature, shall be assessed for the collection of garbage, waste, trash and refuse, a reasonable sum per quarter to be determined by the Mayor, City Health Officer and Sanitation Committee of the City Council in keeping with the above schedule, except that no house nor place of business, having any waste, shall be assessed less than $1.50 per quarter. The foes due under this Sub-section are levied upon and shall be collectable from the owner, manager or occupants of said non-residential house. ”
Acting under the above section, the Mayor, City Health Officer and Sanitation Committee fixed a garbage fee of $3.00 per quarter for all commercial or non-residential houses without further approval or ratification by the city council either by resolution or ordinance. Appellee was arrested and fined for failure to pay the quarterly assessment of $3.00 against his grocery store. Although appellee alleged that the entire ordinance was unconstitutional and void for various reasons, in the course of .the trial he abandoned all grounds of attack except the charge of invalidity against that part of section 1 which delegates to the committee named the power and authority to fix the garbage fee applicable to commercial property.
Hence, the only question for decision is whether a city council can delegate its legislative power to a committee to fix a garbage fee. The chancellor held that it could not and his findings are incorporated in the decree as follows: “That Ordinance 385, approved by the City Council of the City of Harrison on the 1st day of April, 1947,' and Ordinance 393 amending said Ordinance 385, is void only in so far as it attempts to delegate to the Mayor, City Health Officer, and Sanitation Committee 'of the City Council the power and authority to fix garbage fees as provided in section 1 of said Amendment 393; and the Mayor and City of Harrison are attempting to exact from the plaintiff the sum of $3.00 per quarter garbage assessment as fixed by the Mayor, City Health Officer, and Sanitation Committee of the City Council; and that said actions on the part of the defendants Guy Raulston, Mayor of the City of Harrison, and the City of Harrison, in attempting to exact $1.50 per quarter in excess of the minimum amount fixed by section 1 of said Ordinance No. 393, is an illegal exaction of plaintiff because said amount in excess of the $1.50 minimum was fixed by the Mayor, City Health Officer, and Sanitation Committee of the City’" Council as a ministerial act and not passed on, adopted or approved by the City Council of the City of Harrison, Arkansas,
“And tlie Court further finds that the $1.50 in excess of the minimum fixed by said ordinance is an illegal exaction attempted on the part of the defendants Guy Raulston, Mayor of the City of Harrison, and the City of Harrison, and that said defendants should be permanently enjoined from collecting* of attempting to collect in excess of $1.50 per quarter since the effective date of said ordinance.” The court refused to enjoin the city from collecting fines assessed against appellee on charges still pending in the circuit court.
We have held that it is within the police power of a municipal corporation to control and regulate the manner of collection, removal and disposal of garbage and that a city may properly provide a penalty for violation of such regulations. Guerin v. City of Little Rock, 203 Ark. 103, 155 S. W. 2d 719. In 62 C. J. S., Municipal Corporations, § 154 (b), it is said: “The right to delegate power by municipal authorities rests on the same principle and is controlled in -the same way as the delegation of the legislative power by the state, and the prohibitions against delegation of municipal legislative authority are substantially the same as those against prohibition of delegation of state legislative authority.” It is also well settled that functions exclusively legislative must be exercised by the legislature and cannot be delegated. Thus, the legislature cannot delegate its power to tax or fix the tax rate. 16 C. J. S. Constitutional Law, § 133 (a).
The applicable rule is stated in McQuillin, Municipal Corporations, (2d Eel.), § 395, as follows: “The rule is well settled that legislative power cannot be delegated. So far as the powers of a municipal corporation are legislative they rest in the discretion and judgment of the municipal body intrusted with them, and the general rule is that that body cannot delegate or refer the exercise of such powers to the judgment of a committee of the council, or an administrative officer of the city.” In the same section it is pointed out that this rule does not preclude the appointment of administrative agents for the performance of administrative or ministerial duties in making effective the legislative will. The author fur- tlier says: “There is a clear distinction between legislative and ministerial powers. The former cannot he delegated; the latter may. Legislative power implies judgment and discretion on the part of those who confer it.” This doctrine has frequently been approved by this court. State v. Davis, 178 Ark. 153, 10 S. W. 2d 513; Satterfield, Mayor v. Fewell, 202 Ark. 67, 149 S. W. 2d 949.
While the council may not delegate its powers to a committee, when it ratifies the act of the committee in due form it becomes the act of the council. McQuillin, Municipal Corporations (2d Ed.) § 645; Herring v. Stannus, 169 Ark. 244, 275 S. W. 321. Thus, it was proper for the council to refer the matter of a reasonable fee to be charged to the committee named in the ordinance provided the fee recommended is duly ratified by the council. In this connection, we recently held that a city ordinance cannot be repealed, amended or suspended by resolution, but may be repealed, amended or suspended by ordinance only. Meyer v. Scifert, 216 Ark. 293, 225 S. W. 2d 4. The vice in § 1 of Ordinance 393 is that it delegates the power to finally fix garbage fees to a committee without ratification by the municipal body clothed with legislative authority under our constitution and statutes.
Counsel for the city cites American Baseball Club v. Philadelphia, 312 Pa. 311, 167 Atl. 891, 92 A. L. R. 386, in support of his contention that authority to fix reasonable garbage fees was properly delegated to the committee named in the ordinance. The ordinance involved in that case requried those giving athletic contests to pay a license fee based upon the number of policemen or firemen necessary to protect the public safety at such contests. The court held that the delegation of legislative authority was not involved in making the amount of the required license fee dependent upon a reasonable estimate of the number of policemen and firemen which, in the opinion of the director of public safety, may be necessary to protect the public safety. The court emphasized the fact that the ordinance dealt with special services rendered by the city to a seasonal business conducted for private profit and involved tlie extraordinary use of municipal facilities. Obviously it would be unreasonable, if not impossible, to require the city council to meet every time a baseball game was played to determine the number of policemen necessary to maintain order during the particular contest. The court also pointed out that the rate of the exaction for the license was fixed by the ordinance, “but the application of the rate is dependent upon extraneous facts to be found by an administrative official. ’ ’
In the case at bar we are not dealing with the validity of a license for special services rendered by a municipality to a particular business. The garbage assessment is a permanent exaction in the nature of tax which is applicable to all occupants or owners of dwelling and business houses in the city. The ordinance here delegates authority to the committee to fix the permanent rate of the assessment and not merely the application of the rate to a particular transaction. This is a legislative matter properly resting in the judgment and discretion of the city council and may not be delegated to a committee. The chancellor correctly so held, and the decree is affirmed. | [
-12,
-24,
-100,
76,
106,
-64,
26,
-104,
75,
-95,
-25,
87,
-17,
78,
21,
113,
-21,
121,
-48,
121,
-27,
-89,
67,
98,
-102,
-13,
-71,
85,
56,
95,
-20,
-1,
108,
21,
-62,
-99,
7,
-30,
-51,
-36,
-122,
3,
-117,
80,
125,
64,
52,
42,
82,
15,
49,
29,
-30,
44,
17,
67,
111,
44,
-39,
45,
91,
-6,
-68,
21,
123,
7,
16,
116,
-99,
-121,
-6,
90,
-104,
53,
-120,
-88,
115,
-74,
6,
92,
13,
-101,
0,
96,
98,
2,
33,
-9,
-40,
-115,
14,
-34,
-99,
-92,
-112,
88,
90,
-86,
-74,
-108,
108,
-110,
14,
-2,
-26,
-124,
91,
108,
-117,
-114,
-12,
-79,
-113,
-92,
-44,
3,
-17,
103,
48,
117,
-53,
-26,
95,
-57,
18,
91,
-50,
-47
] |
Humphreys, J.
This suit was brought by appellee against appellant in the Pulaski Circuit Court, third division, for balances totaling $1,450 after allowing -certain credits, upon two alleged written subscriptions to appellee by appellant of $1,000 each. The written subscription cards were filed as Exhibits A and B to the complaint.
Subscription A was dated November, 1925, and promised to pay appellee $1,000 for the year ending Oc tober 31, 1926, in installments as follows: ‘ ‘ One-fourth by December 1, one-f onrth February 1, one-fourth May 1, one-fourth July 1.” The card was not signed by appellant, but there appeared after the word “signature,” ‘ ‘ pledged verbally to J. J. Harrison. ’ ’ On the reverse side of the card appeared appellant’s name and. address in typewriting, and the amount subscribed with the following credits thereunder: “Dec. 22, 1926, $250; $100 without legible date; July 28, 1928, $100. ’ ’
Subscription B was dated November, 1926, and promised to pay appellee .$1,000 for the year ending October 31, 1927, in installments as follows: “One-fourth by December 1, 1926, one-fourth February 1, 1927, one-fourth May, 1, 1927, one-fourth .July 1, 1927.” On the reverse side of the card appears the name of appellant, the amount subscribed with credit thereunder of $100 without date.
Appellant filed an answer denying that he signed the subscription card marked Exhibit A, or that he authorized the subscription, or that he made any payments thereon; admitted that he signed subscription card marked Exhibit B and alleging that the payments credited on subscription A should have been credited on subscription B.
The prayer of the answer is that subscription A be canceled and held for naught, and that the credits appearing on subscription A be transferred and treated as credits on subscription B.
The cause was submitted to a jury upon the pleadings and testimony adduced by the respective parties which resulted in a verdict and consequent judgment against appellant for $550 on subscription A with interest and $900 on subscription B and interest, from which is this appeal.
Appellant contends for a reversal of the judgment because the court refused to instruct that he was not liable on subscription A and that he was only liable on subscription B in tbe sum of $450, upon the theory that the undisputed evidence showed that he was not liable on subscription A and that he only owed $450 with interest on subscription B.
The record reflects without dispute that appellant did not sign or authorize any one to sign subscription card A, or that he authorized a subscription for $1,000 for the fiscal year 1925-1926. His name does not appear on the card signed by himself or any one else. .Opposite the word “signature” are these words: “Pledged verbally to J. J. Harrison.” Appellant testified that he did not make a verbal pledge to J. J. Harrison, who was the leader of the community drive that year. J. J. Harrison testified that appellant was associated with him in raising the community fund for the fiscal year 1925-1926, and that during the activities of the campaign appellant stated to him and others that he planned to give $1,000, and, based upon that statement, he told O. H. Wickard, the secretary, that appellant had pledged verbally $1,000 but that he would not state at all that appellant had authorized him to pledge that amount for him, and made it still more emphatic by saying that he did not authorize him to make the pledge. Under our interpretation of this testimony, it was clearly error for the trial court to submit the issue of the^liability of appellant on subscription card A to the jury.
Appellee argues, however, that the liability of appellant on subscription A was submitted to the .jury upon the theory that the testimony, though conflicting on the point, tended to show that he subsequently ratified the subscription of the fiscal year 1925-1926, and in support of ratification, calls our attention to the testimony of C. H. Wickard to the effect that they mailed appellant monthly statements showing balances, and to an O. K. written on the letter by appellant which he received from H. W. Hennegin Company, auditor of appellee’s account, mailed to him in November, 1926, which showed on its face that appellant owed $1,000 on an unpaid pledge to appellee up to October 31,1926.
Relative to the monthly statements the testimony was insufficient to show that appellant received them. C. H. Wickard’s testimony failed to show that the envelopes containing the notices were properly addressed to appellant and deposited in the postoffice. No presumption could or would arise that appellant received the notices sent by mail unless properly addressed and deposited in the mail.
Appellee testified that, before receiving the latter from the auditors, he subscribed $1,000 for the fiscal year 1926-1927 to appellee, and that when he O. K.’d the letter and returned it he though! it related to the subscription he had made for the fiscal year 1926-1927. It is true that if appellant had carefully read the letter he would have discovered that it related to a subscription of $1,000 for the fiscal year 1925-1926, but one relying upon ratification of an unauthorized act of an agent must show that at the time of ratification the principal had full knowledge of all the material facts connected with the transaction. Martin v. Hickman, 64 Ark. 217, 41 S. W. 852 ; Haines v. Rumph, 147 Ark. 425, 228 S. W. 46 ; DeCamp v. Graupner, 157 Ark. 578, 249 S. W. 6 ; Arkansas Valley Bank v. Kelley, 176 Ark. 387, 3 S. W. (2d) 53, 58 A. L. R. 808 ; Hoxie v. Woolen, 181 Ark. 483, 28 S. W. (2d) 61. In order to meet the requirements of the rule, full knowledge of all the material facts connected with the transaction should have been shown, and not merely an opportunity to know all the material facts connected therewith. In other words, the doctrine of ratification is not based upon the carelessness or negligence of a principal in failing to find out all the material facts connected with the transaction, but is based upon his actual knowledge thereof.
In the instant case, however, there is another essential lacking. The subscription was not made by an agent or one acting as an agent for appellant. J. J. Harrison did not claim to have acted as agent for appellant in making the subscription. He disavowed acting in such a capacity for appellant. It is said by Mr. Page in his work on Contracts, § 1768, that: “'The doctrine of ratification in agency applies only to the contract of one who is an agent or who claims to act as an agent. A contract made by one who is not an agent and does not claim to act as an agent cannot be ratified. To permit ratification under such circumstances would be to permit a person to whom an offer was not made to force a contract upon a party who did not mean to deal with him.” The text is supported by sound reasoning and a long line of well considered cases.
The evidence was therefore whollv insufficient to submit the issue of liability of appellant to appellee on subscription A, and the trial court erred in doing so.
Tt follows that the credits on subscription “A” should be applied as payments on subscription “B.” This is accordingly done, and the judgment is reduced from $1,450 to $450 and, in accordance with the modification, is affirmed. | [
-76,
108,
-8,
-35,
24,
98,
9,
-78,
-14,
-63,
55,
83,
-19,
-28,
16,
117,
-31,
109,
116,
104,
101,
-77,
55,
-24,
-78,
-77,
57,
-43,
-76,
78,
-12,
-44,
85,
56,
106,
21,
-26,
-62,
-23,
22,
-114,
-124,
57,
-20,
-7,
-56,
52,
49,
80,
71,
117,
-105,
-29,
46,
21,
75,
45,
46,
123,
-87,
-48,
-32,
-102,
5,
15,
70,
16,
116,
-102,
69,
-56,
12,
-120,
53,
32,
-23,
115,
-90,
-122,
-12,
75,
-103,
0,
102,
34,
2,
-91,
-91,
-100,
-104,
46,
-34,
-99,
-90,
-77,
73,
11,
41,
-66,
29,
116,
20,
7,
126,
120,
85,
29,
104,
11,
-114,
-106,
-125,
-115,
116,
-114,
-121,
-29,
-110,
48,
85,
-49,
-30,
92,
-57,
56,
-109,
-113,
-46
] |
McHaney, J.
Appellees brought this action against appellant to recover the value of the pine timber cut and removed from 120 acres .of land in 9-14-17, Ouachita County. The facts are as follows: The owners -of the land from which the timber in controversy was cut exe cuted and delivered a mortgage thereon to one Milner in February, 1926, to secure an indebtedness of $1,750, which mortgage was promptly recorded. Thereafter the-note and mortgage were assigned to Phillips Petroleum Company, who in October, 1927, the note not having been paid in full, brought suit to foreclose. The petroleum company, while the suit was pending, sold and assigned the note and mortgage to one F. F. Neeley, who was substituted as party plaintiff in the foreclosure suit. While this suit was pending, and with the knowledge and consent of Neeley, who agreed to release same from the mortgage, all the pine timber on the land was sold by the mortgagors to appellee and a deed executed therefor dated December 10, 1927, and recorded January 3, 1928. The consideration for the timber deed was seven hundred dollars ($700), which was paid by appellee to Mr. Neeley, and this amount was credited upon the indebtedness covered by the mortgage, reducing it to seven hundred and two dollars and fifty cents ($702.50). Later a decree of foreclosure was taken under the mortgage, the land sold, and one Walter F. Tate became the purchaser for the balance due on the note, receiving a certificate of purchase therefor dated October 16, 1928, which he assigned to appellant. On the same day the report of the sale was approved and commissioner’s deed executed to appellant, who thereafter went upon the land and cut and removed the pine timber therefrom to the value, as found by the jury, of nine hundred dollars ($900), on an instructed verdict of the court to find for appellee the value of the timber. The facts further show that counsel for appellant, in examining the records before appellant acquired the certificate of purchase from Tate, found the record of the timber deed to appellees and was advised that the timber had been sold.
Appellant challenges the correctness of the holding in this case on the ground that, since the mortgage under which he purchased at the foreclosure sale, or at which his assignor purchased, was of record prior to the record of the timber deed, he had a right to rely upon the record which did not show the release of the timber from the mortgage. We think the appellant is wrong in his contention on several grounds, but it is necessary to mention only one of them. The sale at which he or his assignor purchased was a judicial sale, and the rule of caveat emptor applies. Guynn v. McCauley, 32 Ark. 97 ; Blade v. Walton, 32 Ark. 321 ; New England Securities Co. v. West Helena Consolidated Co., 177 Ark. 849, 8 S. W. (2d) 440 ; Robb v. Hoffman, 178 Ark. 1172, 14 S. W. (2d) 222. In 16 R. C. L., page 138, it is said: “A judicial sale carries only the interest, estate, and rights in the premises that the parties to the proceedings had and could have asserted, no more and no less. The purchaser succeeds to their rights and attitude in respect of the property sold, ‘takes their shoes,’ stands in their places, acquires their interest as it existed in their hands, subject to all infirmities of title then attaching to the estate, and to all equities, known or secret, which operated as a limitation upon the nominal or apparent estate which they had * * #. A bona fide purchaser at a judicial sale is affected, to the same extent as the person whose title he buys, by an estoppel in pais which prevented the latter from asserting title.” Appellant therefore acquired no better title by reason of the judicial sale than the parties to the action had. It is undisputed that the mortgagors, defendants in the action, sold the timber to appellees with the knowledge and consent of Neeley, the plaintiff in the action, who received the proceeds of the sale and applied it on the deed. Neeley could not therefore have asserted a superior title to appellees under his mortgage, nor could he have done so had he been the purchaser at the judicial sale. Appellant is in no better position, for he acquired only such title as the parties had by reason of the sale, and the commissioner’s deed to him purports to convey only “all the right, title, interest or claim, either in law or equity, of the parties to- said suit in chancery in or to the ¡said parcel .of land hereinbefore described, and all and singular the rights and privileges, hereditaments and appurtenances thereunto belonging, or in any wise appertaining.”
We are therefore of the opinion that the court correctly instructed the jury to return a verdict for appellees for the value of the timber cut- and removed from the land by appellant.
Affirmed. | [
80,
111,
-72,
12,
8,
-32,
104,
-102,
91,
-95,
-12,
83,
-19,
-57,
1,
109,
-29,
57,
117,
108,
-123,
-77,
19,
86,
-109,
-77,
89,
69,
-71,
-51,
-28,
-43,
13,
48,
74,
-107,
-62,
-94,
-17,
88,
-114,
-127,
-71,
108,
-39,
-48,
60,
-113,
64,
75,
113,
-73,
-6,
41,
20,
-53,
76,
46,
-17,
41,
64,
-72,
-72,
13,
127,
23,
49,
-121,
-102,
1,
-56,
74,
-112,
53,
0,
-23,
119,
38,
-42,
116,
13,
-103,
12,
38,
102,
1,
45,
-17,
-56,
-104,
46,
-34,
-99,
-90,
-64,
24,
3,
105,
-66,
-107,
124,
80,
86,
-2,
-25,
-123,
28,
108,
-125,
-50,
-42,
-95,
15,
60,
-108,
19,
-21,
-125,
-74,
113,
-51,
-94,
93,
71,
56,
-101,
-113,
-15
] |
Carleton Harris, Chief Justice.
James Duncan Fudge, appellant herein, was charged with the crime of second degree murder in the alleged slaying of his wife, Dorothy Fudge. During the trial, the court reduced the charge to involuntary manslaughter, and the jury returned a verdict of guilty, fixing appellant’s punishment at three years imprisonment. From the judgment so entered, Fudge brings this appeal. For reversal, it is asserted that the trial court erred in permitting the State to impeach its own witness by proof of a prior contradictory statement.
Lela Mae Bell, a witness on behalf of the State, testified that around 10:30 P.M. on fhe evening of July 28, 1972, she was playing cards with Mrs. Fudge, and two other women at the Fudge home, when appellant came in with a box of chicken. The witness stated that the wife took a piece of chicken and remarked to appellant, “James, your woman called.” No answer being given, the statement was repeated, and Fudge answered, “So she did.” Fudge then stated that “The game is over, no more playing cards here at the house,” walked back into his bedroom and, according to the witness, “When he come out, well, he come out shooting. *##And he shot four bullets in the floor. He shot four times in the floor. Well, she was standing up by the table and the fifth bullet, well, when he shot that, the fifth bullet, well, I don’t know where it hit her but, anyway, when he shot the fifth bullet, he turned around and went back in the bedroom. When he went back in the bedroom, well, she fell. Well, she called Pearl’s name. She said ‘Pearl’, said, ‘James shot me now you’ll,’ so Gladys was standing up in the middle door and I was backed against the wall.”
Mrs. Bell then stated that Fudge walked from his room, said, “Lord have mercy, I done shot my wife,” picked her up and “carried her to the hospital.” On cross-examination, the witness testified that all five shots were fired into the floor, and on redirect examination, Mrs. Bell said that apparently he did not know that he hit his wife until he came back out of the room. She also said that Mrs. Fudge had told her not to “bother him, let him shoot, let him shoot me one time.” The State claimed surprise at the testimony of the witness and sought permission to impeach her testimony. The matter was taken up in chambers and it developed that on the morning after the killing, Mrs. Bell had given the police a statement in which she said she was in another room at the time of the shooting, heard the shots, and on going into the room where the shooting occurred, observed Fudge standing over his wife. On the same morning, she gave to the officers a second statement in which she said she was present in the room where the shooting occurred and observed Fudge go to his bedroom, return with a pistol in his hand, and fire four shots into the floor. Mrs. Bell had then said that she (the witness) begged Fudge not to shoot his wife; that Mrs. Fudge had said, “Don’t beg him, let him shoot me one time”, and that appellant then fired the last shot which struck the wife in the chest area. Mrs. Bell was the only witness who purportedly observed the shooting, and the State had placed her on the stand for the purpose of establishing malice on the part of appellant. Her testimony was thus essential to the charge of second degree murder. Obviously, the prosecutor had expected Mrs. Bell to testify in accordance with her second statement; it developed that her testimony was not wholly in accord with either statement, but more or less a part of one and a part of the other. The court finally announced that it would permit the State to inquire of the witness if she made a statement “that she wasn’t in the room and didn’t see it and did she make another statement that she was in the room and did see it and that she saw James shoot her.” Back in the courtroom, the prosecutor interrogated Mrs. Bell, and while the witness admitted her signature, she denied some of the matters included in the statement; for instance, she denied that she had stated that she was in another room, heard three or four shots, went back into the room (where the shooting occurred) and saw appellant standing with a gun in his hand and Mrs. Fudge lying on the floor. She also denied making the statement that Fudge had walked into the room, shot four times into the floor, and that she (the witness) had begged him not to shoot Mrs. Fudge.
Appellant contends that the court erred in permitting the State to impeach its own witness; that the State could not have been surprised because appellant had already given two versions of events occurring, before she ever testified.
It does not appear necessary to discuss this contention, for even if error occurred, we find no prejudice. Of course, we do not reverse unless prejudicial error is shown. Keathley v. Yates, 232 Ark. 473, 338 S.W. 2d 335. Assuming, without deciding, that the court erred in permitting the State to attempt to impeach the testimony of its own witness, we cannot see how Fudge was prejudiced. At the conclusion of the testimony, appellant moved to dismiss and the court granted the motion to dismiss the charge insofar as murder in the second degree was concerned, reducing the charge, to involuntary manslaughter. That offense is defined by Ark. Stat. Ann. § 41-2209 (Repl. 1964) as follows:
“INVOLUNTARY MANSLAUGHTER DEFINED. —If the killing be in the commission of an unlawful act, without malice, and without the means calculated to produce death, or in the prosecution of a lawful act, done without due caution and circumspection, it shall be manslaughter.”
Even if we look at the testimony from the standpoint most favorable to appellant, there was ample and sufficient evidence for the jury to find that he had committed the crime of involuntary manslaughter. In fact, appellant’s own statement to the officers (and it is not contended here that such was involuntarily made) is potent evidence to support the reduced charge. From the statement:
“Last night I had been over to my aunts house where I had drank Vi of Vi pint of whisky and I drank one can of beer. I got home about a quarter of one and my wife was giving a card game. I walked in and said yall break the card game up. My wife then told me that I never let her have any fun. I told her for them to break it up right now. I said to myself that I know how to break it up and I went to my bed room and loaded my gun and came back and shot either 4 or 5 times into the floor. After I shot 4 or 5 times in the floor people started moving around. My wife told them that they didn’t have to go cause I wouldn’t shoot nobody she said I was only trying to scare her. I then shot one shot into the middle of the table or I though[t] I shot the table and my wife fell to the floor and said 'Oh you shot me.’ ”
We hold that no prejudicial error was committed and that the evidence was sufficient to support the jury verdict.
Affirmed.
From the record:
“Q Do you recall giving a statement to Detective Bobby Thomas on that same morning in which you said that James Fudge came in, went in the bedroom and came back with a pistol in his hand and fired four shots in the floor, you begged him not to shoot Dorothy, she said ‘don’t beg him, Lela, let him shoot me one time,’ he then fired the gun and the bullet struck Dorothy in the chest area; she was standing up and fell down by the couch and a lot of blood was coming from Dorothy; Dorothy then said to you and Pearl Butler, ‘Help me. James done shot me,’ and then James lefL the room and in a minute he came back and he didn’t have the gun and at that point he picked Dorothy up and carried her out the front door. Do you remember giving that statement to the Little Rock Police Department?
A No. That wasn’t my statement. I don’t remember.” | [
49,
-24,
-3,
-113,
10,
-96,
10,
-104,
106,
-30,
-29,
119,
-29,
93,
4,
113,
123,
45,
85,
105,
-108,
-77,
23,
65,
-78,
-5,
-117,
-43,
-79,
-24,
-3,
-1,
73,
96,
74,
85,
102,
40,
109,
92,
-128,
-80,
-55,
-16,
10,
-110,
37,
63,
84,
15,
17,
-98,
-13,
42,
22,
75,
40,
40,
91,
44,
-48,
-71,
24,
13,
-7,
18,
-77,
38,
-98,
-121,
-8,
46,
-40,
49,
0,
-24,
115,
-108,
-126,
84,
109,
-117,
12,
102,
98,
20,
-51,
-19,
40,
-120,
47,
111,
-67,
-121,
24,
1,
65,
76,
-65,
-35,
119,
-44,
14,
120,
-19,
87,
125,
108,
11,
-49,
-108,
-109,
-115,
63,
-106,
-14,
-29,
-73,
0,
113,
-51,
-30,
76,
103,
121,
-101,
-113,
-13
] |
Griffin Smith, Chief Justice.
The litigation stems from our remand in Case No. 8433—Dodson v. Abercrombie, 212 Ark. 918, 208 S. W. 2d 433. There Abercrombie as petitioner sought to enjoin Dodson from taking sand and gravel from lands shown by the record to he in Sections 9 and 16. Mike Bichards intervened. Dodson answered by admitting and adopting allegations contained in the intervention. After preliminary pleadings had been disposed of Bichards and ■ Dodson joined in an amendment that in effect admitted Abercrombie bought the land from W. T. Fagan, sold it to Bichards, and in the deed to Bichards reserved, prima facie, title to the sand and gravel. But, according to the defensive pleadings, this was not intended by any of the parties, hence the deed should he reformed because of a mutual mistake, or for fraud. In reversing the decree sustaining Aber-crombie’s demurrer to the answer and intervention as amended, it was held that if the deed was accepted by Richards without misrepresentations by the plaintiff* there would be no ground for reformation, but if Richards’ failure to read the document was induced by frauds ulent representations by Abercrombie, resulting in its acceptance in circumstances amounting to fraud or inequitable conduct, then a cause of action would lie.
These were the issues that had been joined when the cause went back to Saline Chancery Court. Of the resulting decree appellant says: “The Court rendered a judgment in that case restraining Dodson from removing sand and gravel from land owned by Abercrombie, [but] in the judgment certain lands belonging to Dodson were erroneously included”.
It is conceded that Dodson had been taking sand and gravel from Abercrombie’s property in Section 16, but Dodson’s present insistence is that while engaged in similar operations on his own land in Section 9 he was cited for contempt for violating the injunctive order. The complaint recites that “In a cause of action heretofore determined [by the Saline Chancery Court in case No. 3417] wherein H. L. Abercrombie was the plaintiff and Ed Dodson was defendant, a judgment which has become final [through lapse of the term and expiration of the time for appeal] quieted title in Abercrombie to the lands described in Section 9”. There is then the statement that “the purpose of this suit is to make the above-described lands the issue in this cause of action”. Dodson, according to the complaint, owned 39 acres of a total of 50.2 acres embraced within the described area, “and Abercrombie, by reason of the previous decree, is owner of 11.2”. Allegations of mutual mistake, and fraud are repeated.
Neither the decree nor the record in Case No. 3417 is brought into the record in this appeal. A great deal of testimony in the case resulting in this appeal goes to the question of intent, mistake, and related matters. Abercrombie did not testify, but his pleadings assert ownership of the disputed right to take the sand and gravel.
Since the record in Case No. 3417 is not before us, we must presume that the Chancellor compared the testimony in this case with his decree and the record in the former suit. The complaint was dismissed for want of equity.
This is not a case where the appellant, through oversight, failed to complete the record. In a pleading entitled “Objections to the Bill of Exceptions” counsel for appellee complained that the “files, records, and decree” pertaining to the former suit were not in the transcript, “although the plaintiff specifically asked in his complaint that the Court take cognizance of them”.
Affirmed. | [
-14,
108,
-128,
13,
-72,
32,
-72,
-118,
73,
-71,
-25,
83,
-19,
-58,
4,
99,
-32,
89,
116,
107,
-42,
-93,
62,
-62,
114,
-109,
-13,
79,
-73,
79,
-20,
-57,
76,
52,
-54,
85,
102,
-94,
-19,
-98,
-58,
2,
8,
101,
-39,
64,
116,
31,
16,
15,
85,
-114,
-14,
44,
61,
-57,
41,
46,
-53,
60,
-39,
-16,
-100,
12,
91,
21,
49,
119,
-71,
35,
72,
42,
-112,
57,
9,
-24,
115,
-74,
-122,
116,
7,
27,
40,
98,
98,
24,
-23,
119,
-72,
-120,
15,
-2,
29,
-90,
-46,
88,
75,
105,
-73,
-103,
-7,
16,
70,
-2,
-18,
-115,
25,
104,
35,
-53,
-46,
-95,
-100,
60,
-100,
67,
-25,
-123,
32,
112,
-49,
-26,
92,
67,
16,
-109,
-114,
-16
] |
Frank Holt, Justice.
Appellant is the beneficiary of a life insurance policy issued by appellee to her former husband who was accidentally killed. The appellee refused payment on the basis that the policy had lapsed for nonpayment of premium. Appellant contended in the trial court and now on appeal that the policy had not lapsed because the appellee had accepted a check as absolute payment for the premium due and, in the alternative, the appellee had waived any forfeiture and by reason of its conduct should be estopped from claiming a forfeiture. The issues were submitted to the trial court, sitting as a jury, upon the pleadings, request for admissions and the answers, exhibits, including the policy, and a stipulation of facts. The trial court found the policy had lapsed for nonpayment of premiums. We affirm the trial court.
The $15.03 monthly premium on the $10,000 policy (accidental death) was to be paid on the fifth of each month by a pre-authorized or sight draft. A thirty-one day grace period was provided. The policy was in effect approximately one year when the March, 1971, sight draft was returned on March 15 because of insufficient funds. The appellee so notified the insured. A March 17, 1971, sight draft was then issued and it was also returned due to insufficient funds. On April 5 the thirty-one day grace period for the March payment expired. On that date the appellee insurance company drew a draft for the April monthly payment which was returned on April 8 because of insufficient funds. On that date the appellee insurer forwarded the insured’s personal check for the March premium for collection to the bank with instructions to hold it for five days and if not paid to return the check. Three days later the insured was accidentally killed. The check was never paid and at no time during the month did the insured ever have sufficient funds in the bank to pay his personal check. Following the death of the insured, payment for the March premium was mailed on April 14, 1971, by a third party. On April 15 the insurer addressed .a letter to the insured not yet knowing of his accidental death, advising that he should forward a money order for the March and April premiums if he desired to continue his policy in force. On April 23, having learned of the insured’s demise, the appellee refused payment on the policy and returned the premium paid by the third party.
Appellant first contends for reversal that “appellee accepted the insured’s check as payment of the premium for the relevant period, and therefore, the trial court erred in holding the policy to have been forfeited for nonpayment of premiums.” The thrust of appellant’s argument, as we understand it, is based upon the assertion that the March draft was accepted as absolute and not conditional payment of the premium. In support of this contention, appellant makes the argument that appellee’s failure to expressly condition the receipt of the drafts, the failure to explain the terms of any agreement by which the appellee drew the drafts, the invitation to pay by draft, and the repeated collection attempts are consistent with the intent of the appellee insurer to regard the policy as being continued in force upon mere receipt of the drafts. Appellant asserts this is true despite the fact that the policy provides the insurance coverage is automatically terminated upon the expiration of the grace period for the payment of the monthly premium, subject to reinstatement, and that no liability exists except for injury sustained following reinstatement. The reinstatement provision is in accord with Ark. Stat. Ann. § 66-3607 (Repl. 1966).
The burden of proof on these asserted factors was upon the appellant to demonstrate and convince the trier of the facts that the pre-authorized or March sight draft or insured’s personal check was intended as an absolute payment. The law is well settled that receiving a check as payment for an insurance policy is conditional and will not prevent a forfeiture of the policy for nonpayment of the premium. Nation Life Co. v. Brennecke, 195 Ark. 1088, 115 S.W. 2d 855 (1938). Of course, if the insurance company’s acts indicate that receipt of the check is payment then such will justify a finding that the insurance company is so bound. Brennecke, supra, and National Fire Insurance v. Wright, 163 Ark. 42, 257 S.W. 753 (1924). We have held that when the insured attempted to pay the premium the day before the grace period expired the policy lapsed because the check was dishonored when presented for payment five days later. Webb v. The Manhattan Life Insurance Company, 220 Ark. 478, 248 S.W. 2d 385 (1952). In accord is Hare v. Illinois Bankers Life Assurance Company, 199 Ark. 27, 132 S.W. 2d 824 (1939), where the insured failed to pay his premium within the grace period and subsequent thereto sent a check to his insurance company which was dishonored and the policy was never reinstated. Appellant says that a “check or draft may itself constitute payment of the premium and whether it does so depends primarily upon the manifest intent of the insurer.” In the case at bar, the sight drafts for the March and April premiums were dishonored and the insured’s personal check was never paid even though the bank was instructed to hold it for five days for collection. We find no merit in appellant’s contention that the court erred in not finding the “insured’s check” was accepted and constituted payment of the premium. There is substantial evidence to support the contrary finding made by the court.
Appellant next asserts for reversal that “appellee’s conduct was totally inconsistent with an intent to forfeit policy until it learned of insured’s death and therefore should be deemed to have waived any right to forfeit policy.” The terms of the policy are clear that the policy lapses if the monthly premium is not paid within the thirty-one day grace period. To continue the policy the appellee’s activities must be inconsistent with the lapse provision. Therefore, we have held that where the insurance company repeatedly accepted premiums ranging in tardiness from two to seventeen days, it would justify finding a waiver of the grace period until notice was given that such favor would no longer be extended. American Life Ins. Co. v. Claybough, 227 Ark. 946, 302 S.W. 2d 545 (1957), and in accord, Universal Life Ins. Co. v. Bryant, 196 Ark. 1143, 121 S.W. 2d 108 (1938). In the case at bar the insurance company had on one occasion accepted a premium payment (January, 1971) one day after the grace period. Appellant insists that the one tardy payment (another one previously occurred during the grace period), together with the other activities of or transactions with the insurer previously discussed, is so inconsistent with the forfeiture provision of the policy as to constitute a waiver. Even so, this presented a factual issue for the fact finder.
Appellant finally contends that “appellee represented to insured that he had a period of five (5) additional days to pay premium, within which five days insured was killed and therefore appellee should be estopped from forfeiting policy until expiration of this period.” The letter to the insured’s bank, following nonpayment of the March and April sight drafts, stated:
We are enclosing for collection a check in the amount of $15.03 drawn on your bank and signed by Dale Williams.
We are advising Mr. Williams that we have mailed the check direct to your bank for collection. Would you please hold it for five days and if Mr. Williams fails to pay, return to us?
The letter indicated that a copy was being sent to the insured. Certainly the court could draw the inference that the check was to be held as a conditional payment and nothing in the language of the letter indicated that the policy was absolutely or unequivocally considered to be in force and effect and extended for five days. Further, there is no evidence that the deceased received a copy of the letter or relied upon it.
On appeal we review the evidence and all deducible inferences therefrom in the light most favorable to the appellee and affirm the fact finder if there is any supportive substantial evidence. Fanning v. Hembree Oil Co., 245 Ark. 825, 434 S.W. 2d 822 (1968). When we consider the facts and circumstances, together with the policy provision and other exhibits, we cannot say there is no substantial evidence to support the findings of the trial court.
Affirmed. | [
48,
124,
-112,
-65,
8,
-96,
42,
-102,
115,
-32,
-91,
83,
-67,
-61,
84,
107,
-2,
-83,
117,
104,
-105,
-93,
55,
106,
-46,
-77,
-15,
-59,
-79,
121,
-18,
-34,
76,
32,
-54,
85,
102,
-118,
-63,
-104,
-114,
-120,
-71,
101,
-39,
82,
48,
-1,
80,
79,
97,
-97,
-93,
42,
31,
78,
109,
44,
91,
-87,
-64,
-16,
-126,
-123,
127,
22,
-80,
-121,
-68,
7,
88,
14,
-104,
17,
8,
-8,
114,
-90,
-122,
68,
35,
-103,
0,
102,
103,
48,
37,
-19,
-68,
8,
55,
-34,
47,
-121,
-110,
120,
43,
12,
-74,
-97,
102,
20,
-98,
-4,
-52,
-43,
93,
-96,
1,
-38,
-76,
-77,
-49,
110,
-100,
-118,
-1,
3,
50,
113,
-49,
-96,
92,
71,
127,
-109,
-98,
-104
] |
Smith, J.
In 1920 E. W. Langham purchased a Primm oil engine at a cost of $6,600, which was installed on his rice farm as a necessary part of a pumping plant required to grow rice. He borrowed money from the Deming Investment Company -in 1922, with a portion of which he paid the balance of the purchase money then due on the engine, and he secured this loan by mortgages on his farm to the investment company, which the latter, on March 2,1922, assigned to the Boston Mutual Life Insurance Company.
The engine was used for the purpose intended until 1923, when the engine house enclosing it was destroyed by fire and the engine was so badly damaged that extensive and expensive repairs were necessary, and these were later made by the Power Manufacturing Company, the company which had made and sold the engine.
The agent representing the Power company took two notes covering the cost of the repairs, one for $162.50, due November 15, 1925, and the other for $1,184.80, due December 1, 1925. These notes were the form notes used by the Power Company in making sales and, after reciting the service rendered in repairing the engine, undertook to reserve the title thereto, as in the case of a sale, until the repairs had been paid for. It is conceded, of course, that the note did not effect this purpose, and that the engine, as a fixture, remained subject to the lien of the mortgages on the land upon which the engine had been installed. Hachmeister v. Power Mfg. Co., 165 Ark. 469, 264 S. W. 976. No attempt had been made to enforce a mechanics ’ lien.
After this repair the engine was reduced from 100 to 80 H. P. capacity, but Langham continued to use it on 'his farm until October 7, 1927, at which time it was so badly worn through age and use that it was necessary to practically rebuild it, and this could be done only by returning it to the Power Company’s factory in Marion, Ohio. On the date last mentioned, Langham entered into a written contract with the Power Company, which recited that the two notes given for the previous repairs had not been paid, and it was agreed that the Power Company should “take this engine and all equipment to the factory, rebuild it and offer it for sale,” and that “From the sellng price the amount of the above two notes will be deducted plus the handling cost and cost of rebuilding it and refund to me the difference. In consideration of this, I agree to release to them the engine, they to do this hauling and stand all incidental expense.”
It is not questioned that the effect of this agreement, which severed the fixture from the soil to which it was ■ attached, was that of a conversion of the engine, and that Langham had no right to make this contract, for the reason that the engine, as a fixture, was subject to the lien of the mortgages, and that therefore the Power Company .is liable in conversion, and this is a suit by the owner of the .mortgages on the land to recover the value of the engine at the time of its conversion. The court found the value of the engine at the time of its conversion to be $840, and rendered a decree accordingly, and the mortgagee has appealed, and now insists that the engine was of a greater value at the time of its conversion.
The parties agree that the only question in the cáse involved on this appeal is the value of the engine at the time and place of its conversion, and the testimony which we shall now review is of value only in so far as it elucidates that question. Parks v. Thomas, 138 Ark. 70, 210 S. W. 141.
The Power Company took the engine to its factory and practically rebuilt it, and there was offered in evidence an itemized statement of the expenses incurred.
These included:
New parts .................................................... $1,792.75
Factory labor ........................................................................................... 323.93
Freight and handling........................................................................ 244.31
Selling cost................................-................-............................................... 840.00
Testing ................................................................................................... 100.00
Total ...........„.........................................................................................$3,300.99
The testimony shows these expense items are correct. The engine was sold, after being rebuilt, for $4,-200. The item of $840, selling cost, is 20 per cent, of the sales price, which is shown to be the usual commission for making sales of machinery. These items total $3,-300.99, which, when subtracted from the $4,200 sales price, leave a balance of $899.01. In addition, the old flywheel and other parts had a scrap value, according to the statement of the account filed by the Power Company, of $77.86, and this should be added to the $899.01, and when added, makes a total of $976.87, and this we find to be the net value of the engine at the time of its conversion, and the judgment will be modified by increasing it from $840 to $976.87.
This is less than the value of the engine as contended by the mortgagee, but more than its value as contended by the Power Company.
On behalf of the plaintiff mortgagee, Langham testified that the value of the engine after the first repairs was $5,600, but the testimony does not sustain that contention. The price of the engine new was $6,600 in 1920, but twelve months later the selling price of the same engine had been reduced to $5,600, so that if, after the first repairs, the engine was as good as new, as Langham contends, its value did not exceed $5,600, but the testimony clearly shows that it did not have the value of a new engine. Its capacity had been reduced from 100 to 80 II. P., and all of .its old parts had been subjected to five years ’ use, and all the testimony is to the effect that the value of engines depreciates rapidly with use, and that the average life of similar engines is only ten years. The engine was, of course, a second-hand one after it was repaired in 1925, notwithstanding its new parts. It. was also shown that several new models had been placed on the market since 1920 and that this fact affected the price of the older models.
There was testimony on the part of the Power Company that before the engine was rebuilt and restored to 100 H. P., its only value was junk, amounting, to about $200. The testimony which we have recited shows that this estimate was too low.
The Power Company insists that the above statement, which we have approved in determining the value of the engine, allows nothing for factory profits, but as it was a wrongdoer in converting the engine it is entitled to no .profit.
The Power Company also insists that this statement takes no account of the two notes evidencing the 'amount due for the repairs after the fire, which were made in 1925, and that if this were done it would owe nothing. But, as we have said, no action was taken to enforce a lien against the engine, and we cannot now, in effect, enforce this lien by taking this item into account. Besides, the repairs, subject to the use they had undergone, were on the engine at the time of'its conversion and gave it, in part at least, the value it then had. It was the repaired engine which the Power Company converted.
It is true the fact to be adjudged is the value of the engine at the time and place of its conversion, and it is for this amount only that judgment should be rendered, but we think the testimony which we have recited shows its value to be the sum found by us, to-wit, $976.87.
The Power Company calls attention to the fact that in making the sale of the engine it took in exchange two other second-hand engines at a price of $600 each, and that these two engines have not yet been sold. But there was no showing that they were not worth their trade-in value, nor that they mil not be sold without loss when they have been rebuilt.
The judgment in favor of appellant will therefore be modified by increasing it from $840 to $976.87, and, as thus modified, it will be affirmed. | [
-14,
125,
88,
-81,
90,
-32,
42,
-102,
116,
40,
103,
87,
-35,
-10,
25,
13,
-25,
125,
69,
107,
-11,
-77,
19,
19,
-61,
27,
-15,
-51,
-67,
79,
118,
86,
76,
44,
-62,
-97,
-94,
-128,
65,
-104,
-34,
-124,
107,
-32,
93,
0,
54,
10,
-28,
9,
17,
-114,
-79,
46,
85,
126,
109,
42,
-21,
-87,
-63,
-7,
-86,
76,
111,
20,
-96,
70,
-108,
51,
-40,
46,
-112,
-111,
44,
-8,
122,
-74,
-126,
-12,
7,
-119,
9,
38,
102,
16,
69,
-17,
-54,
-72,
39,
-22,
15,
-92,
-42,
120,
50,
97,
-65,
-101,
-13,
18,
23,
126,
-18,
-107,
93,
32,
19,
-101,
22,
-125,
13,
-26,
-100,
18,
-17,
-97,
32,
113,
-55,
-70,
93,
5,
122,
25,
-57,
-88
] |
David Newbern, Justice.
This is a wrongful death case. Lisa Elkins, the appellant, brought the action as administratrix of the estate of her deceased husband, Paul Elkins. Paul Elkins was employed by Daniel Utility Construction Co. (Daniel) which had contracted with the appellee, Arkla, Inc., (Arkla) to lay a pipe. He died when a 10-foot deep ditch in which he was working collapsed, causing him to be asphyxiated. Arkla moved for summary judgment on the ground that Daniel, its independent contractor, was responsible for supervision of the job and Arkla owed no duty to a Daniel employee to see to it that the work was done safely. Summary judgment was awarded to Arkla. The question before us is whether there was a remaining genuine issue of material fact which should have precluded summary judgment. Ark. R. Civ. P. 56(c). We hold there was.
The question of duty owed by one person to another is ordinarily one of law. Lovell v. St. Paul Fire & Marine Ins. Co., 310 Ark. 791, 839 S.W.2d 222 (1992). When, however, the matter of a legal duty is the subject of a contract which is ambiguous as to the parties’ intent, a question of fact is presented. Tribble v. Lawrence, 239 Ark. 1157, 396 S.W.2d 934 (1965); Manhattan Factoring Corp. v. Orsburn, 238 Ark. 947, 385 S.W.2d 785 (1965).
Even though the owner of a construction project hires an independent contractor to do the work, the owner may retain the right and duty to supervise to the extent that it becomes responsible for injury resulting from negligence in performance of the work. The Restatement (Second) of Torts § 414 (1965), provides:
One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.
As Comment C to that section states,
In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way. [Emphasis added]. .
Arkla’s contention is that the contract in this case gave it authority to supervise the work only in the sense that Arkla could see to it that the results of the work were satisfactory and that the day-to-day supervisory responsibility of the manner of construction of the pipeline was left to Daniel. Ms. Elkins contends the contract gave Arkla the right and duty to supervise the work not only as to results but as to the manner of achievement.
Here is a description of some of the contract terms. Under section 1.09 C, an engineer or inspector, representing Arkla, is given authority “to require the removal of any employee of [Daniel] who, in his opinion, is considered incompetent or not qualified to perform his work in a satisfactory manner.” Section 1.15 B provides the engineer or inspector, when giving instructions “shall have authority to make minor changes in the work, not involving extra cost, and not inconsistent with the purposes of the work, . . . .” Section 1.22 provides the contract may be terminated upon seven days notice if Daniel “fails to supply enough properly skilled workmen or proper equipment and materials” or “persistently disregard laws, ordinances or the instruction of the Engineer or Inspector.” Section 1.39 provides “ [t] he Engineer shall have direct supervision of Inspectors whose duty it shall be to see that the work is done properly and in accordance with the Contract Documents.” Section 1.38 provides:
The Engineer or Inspector shall have general supervision and direction of the work. He has authority to stop the work whenever such stoppage may be necessary to insure the proper execution of the Contract. He shall also have authority to reject all work and materials which do not conform to the Contract.
As can be seen, some of the provisions seem to support Arkla’s argument that its supervisory authority was limited to saying when it was and was not satisfied with results as the work went along. Yet other provisions, particularly Section 1.38, seem to give Arkla general authority to supervise the details of the work.
In other cases we have found that a construction contract with an independent contractor presented a question of fact with respect to the duty to supervise. In Erhart v. Hummonds, 232 Ark. 133, 334 S.W.2d 869 (1960), the contract was very similar to the one here. It contained the same language as Section 1.38, giving general supervisory authority to a firm of architects to supervise an independent construction contractor on behalf of the owner. We held that a question of fact as to the assignment of duty was presented.
Arkla’s attempt to distinguish the Erhart case on the basis that the contract provided that the defendant-architect was being paid to assure the contractor was in compliance with the contract must fail. That is exactly what the Arkla engineer or inspector was to do according to the contract in this case. As stated in the Erhart opinion, the contract provided that “[t]he architect shall have general supervision and direction of the work —. He has authority to stop the work whenever such stoppage may be necessary to insure the proper execution of the contract.” As in this case, that left a jury question.
In Walker v. Wittenberg, et al., 241 Ark. 525, 412 S.W.2d 62 (1966), an architect was hired to prepare plans and specifica tions for the construction of a funeral home. After the plans were approved, the architect contracted with a construction company to build the funeral home. The architect was then hired to supervise and inspect the construction. Pursuant to the contract with the owner, the architect was to “have general supervision and direction of the work” and “authority to stop the work whenever such stoppage may be necessary to insure the proper execution of the Contract.” Again, we held there was a fact question as to the duty imposed upon the architect by the term “supervision” and reversed the directed verdict which had been entered in favor of the architect. On remand the Trial Court directed a verdict in favor of the architect. On appeal we affirmed. Walker v. Wittenberg, 242 Ark. 97, 412 S.W.2d 621 (1967). We stated, without explanation, the only issue on appeal was not that of a general duty to “supervise,” but “whether there was a contractual obligation upon the architect to be present continuously during construction. . . .” In view of the narrowness of the issue on the second appeal, our first decision in the case was not affected, and it remains relevant to this case.
Arkla relies on Jackson v. Petit Jean Electric Co-op, 270 Ark. 506, 606 S.W.2d 66 (1980), to support its contention that it did not have a contractual duty to ensure that Daniel complied with safety regulations. The contract at issue in the Jackson case reserved to Petit Jean Electric Co-op the right to alter the size of the work force and the quality and type of tools and equipment used on the job and the right to inspect and approve the work. The case is distinguishable because the contract contained none of the general and specific assignments of supervisory responsibility contained in the contract before us now.
Arkla argues that its actions at the construction site belie its authority to supervise the manner of work and, for example, compliance with safety regulations. In support of its argument it submitted to the Trial Court the affidavit of an Arkla inspector, Jeff Carter. Carter stated he did not tell Daniel how to excavate the trenches or how to perform its duties unless it affected the condition or location of the gas pipes. The fact that Arkla may have taken no affirmative action to ensure the safety regulations provided for in the contract were followed may, in a sense, be supportive of its argument on the factual issue of what the contract required, but the question remains one of fact, and summary judgment was inappropriate.
Reversed and remanded.
Hays and Corbin, JJ., dissent. | [
16,
104,
-40,
-3,
-88,
-30,
58,
90,
89,
-92,
97,
81,
-17,
-53,
-99,
107,
-13,
121,
-15,
43,
-9,
-93,
3,
96,
-46,
115,
-79,
-64,
-78,
75,
102,
-33,
76,
49,
-118,
-43,
-29,
11,
-43,
-38,
-64,
64,
10,
-31,
-7,
0,
48,
62,
-110,
15,
49,
-100,
-93,
42,
17,
-25,
44,
62,
123,
45,
65,
-80,
-113,
-121,
79,
17,
-77,
37,
-100,
103,
-8,
60,
-108,
-79,
1,
-24,
115,
-74,
-62,
-10,
35,
-67,
13,
98,
98,
32,
13,
-27,
-28,
-40,
15,
-26,
-115,
-89,
-99,
120,
27,
11,
-73,
28,
120,
20,
6,
-10,
-12,
69,
95,
44,
5,
-117,
-10,
-111,
-113,
76,
-44,
-125,
-50,
1,
32,
117,
-50,
-86,
93,
67,
83,
31,
27,
-47
] |
McHaney, J.
Appellant sued appellee on a policy of fire insurance for a loss sustained by him.. Appellee defended on the ground that the policy had been canceled. Wells and Bates were the general agents for appellee at Pocahontas. Mr. Bates, testified that on instructions from appellee he had canceled the policy and had notified appellant thereof, both by letter and in person about three'weeks prior to the fire which destroyed appellant’s building. The case was submitted to a jury on instructions from the court, which are not complained of, which resulted in a verdict and judgment for appellee.
During the course of the argument to the jury, counsel for appellee used this language: “If you find against the defendant it will be the same as finding against J. D. Wells and F. E. Bates, it 'will be the same as finding against your neighbors.” On objection being made by counsel for appellant the court said: ‘£ Gentlemen of the jury, what the attorneys may say is not evidence in the case. You get your evidence from the lips of the witnesses and the law from the instructions given you by the court. You should not consider any statement made by attorneys for either party which are not borne out by the record. In arriving at your verdict you will base your verdict on the testimony given by the witnesses and the law as given by the court and upon .that alone.”
This is the only assignment of error for a reversal of the case. We do not think this was improper argument, nor do we think it was prejudicial to the appellant. What counsel evidently meant by the statement was that a verdict for appellant would necessarily imply that the testimony of Mr. Bates was untrue. We think this was a legitimate argument based upon the testimony as the appellant denied that he had received the written notice of the cancellation or the check in payment of the unearned premium which Mr. Bates testified had been sent him. Appellant also denied that Mr. Bates had verbally notified him of the cancellation in Pocahontas a short time after writing the letter notifying- him of the cancellation, and the remarks of counsel were made with the view and hope that the jury would believe Mr. Bates instead of appellant. Moreover, conceding the argument to be improper, we are of the opinion that the remarks of the court in response to the objection cured any harmful effect it may have had. Ark. Short Leaf Lbr. Co. v. Wilkerson, 154 Ark. 455.
Affirmed. | [
48,
-8,
-36,
-115,
8,
96,
104,
40,
-107,
1,
-90,
91,
-3,
-57,
20,
127,
-78,
105,
85,
42,
-42,
-93,
6,
66,
-10,
-14,
83,
-59,
-79,
76,
-26,
-34,
76,
40,
-62,
-43,
-94,
10,
-59,
-36,
-126,
-113,
-72,
-23,
-39,
84,
48,
95,
80,
75,
97,
-98,
-13,
42,
25,
-53,
-88,
44,
107,
-71,
64,
48,
-118,
13,
127,
4,
49,
38,
-98,
7,
72,
12,
-112,
49,
1,
-3,
115,
-74,
-58,
116,
45,
-103,
8,
98,
103,
33,
116,
-25,
-88,
28,
38,
94,
-99,
-90,
-110,
25,
9,
77,
-73,
-103,
116,
16,
-121,
-6,
-19,
29,
93,
108,
3,
-113,
-42,
-95,
-117,
124,
-100,
-54,
-1,
3,
54,
80,
-49,
-88,
92,
69,
49,
-37,
30,
-114
] |
Jack Holt, Jr., Chief Justice.
Gina Delayne Sexson was arrested on July 15, 1990, by a city police officer on charges of driving while intoxicated and disobeying a traffic signal. The incident occurred in the Benton County portion of the Springdale, Arkansas city limits. The City of Springdale is primarily located in Washington County although its municipal boundary extends into a small part of Benton County.
Sexson was found guilty of these charges in the Springdale Municipal Court, situated in Washington County, on November 19,1990. As a result, Sexson appealed to the Washington County Circuit Court, where Circuit Judge William A. Storey dismissed the appeal for lack of jurisdiction and reinstated the municipal court judgment. Sexson then filed a petition for writ of prohibition in Washington County Circuit Court to prohibit the municipal court from enforcing the judgment. In denying the writ of prohibition, Circuit Judge Kim Smith stated:
Argument is made by the plaintiff that Act 142 of 1989 [Ark. Code Ann. § 16-17-206(b)(2)(Supp. 1991)] is unconstitutional. As you both are well aware, there is a presumption of constitutionality of any act passed by the legislature. The plaintiff’s main argument is that the Springdale Municipal Court does not have jurisdiction under the Arkansas Constitution because it violates sections 40 and 43 of Article 7. However, I find nothing in either one of these constitutional provisions which would prohibit the Arkansas Legislature from enacting a law clarifying jurisdiction in our fact situation.
The Act provides for an appeal to the circuit court wherein the offense arose, i.e., Benton County, and if a writ of prohibition was needed against the Springdale Municipal Court I see nothing to prohibit the Washington County Circuit Court from considering the writ of prohibition since the Springdale Municipal Court lies in Washington County.
Therefore, it is my ruling that Act 142 of 1989 is not unconstitutional and that the Writ of Prohibition should be denied.
Generally, a denial of a writ for prohibition is a nonappealable order. Casoli v. State, 302 Ark. 412, 790 S.W.2d 165 (1990). However, we will treat the appeal from a denial of a writ of prohibition as a petition for a writ of prohibition filed in this court if it involves an important issue to be resolved. Robinson v. Sutterfield, 302 Ark. 7, 786 S.W.2d 572 (1990); Lowe v. State, 290 Ark. 403, 720 S.W.2d 293 (1986). As we deem the constitutionality of Ark. Code Ann. § 16-17-206(b)(2)(Supp. 1991) tobe such an issue, we accept this appeal as a writ of prohibition directly to us.
This Court will not grant a writ of prohibition unless it is clearly warranted. Juvenile H. v. Crabtree, 310 Ark. 208, 833 S.W.2d 766 (1992); Leach v. State, 303 Ark. 309, 311, 796 S.W.2d 837, 838 (1990). Prohibition is an extraordinary writ and is never issued to prohibit a trial court from erroneously exercising its jurisdiction, only where it is proposing to act in excess of its jur isdiction. Id. at 312, 796 S.W.2d at 838 (quoting Abernathy v. Patterson, 295 Ark. 551, 750 S.W.2d 406 (1988)); City Court v. Tiner, 292 Ark. 253, 729 S.W.2d 399 (1987).
The question before us, then, is whether Ark. Code Ann. § 16-17-206(b)(2)(Supp. 1991) is unconstitutional. If so, we should issue a writ of prohibition to prevent the Springdale Municipal Court, located in Washington County, from exercising jurisdiction it does not have over an offense committed in Benton County.
The entire code section reads:
16-17-206. Jurisdiction of municipal courts.
(a) Municipal courts and justices of the peace shall not have jurisdiction in civil cases where a lien on land or title or possession thereto is involved.
(b) The jurisdiction of a municipal court shall be coextensive with the county in which it is situated except:
(1) In counties having two (2) judicial districts, the jurisdiction shall be limited to the district in which the court is situated; or
(2) In cities which are primarily located in one county but the city limits extend into an adjacent county, the jurisdiction shall include that portion of the city limits which extends into the adjacent county. Appeals from municipal court decisions in such cities shall be made to the circuit court of the county in which the case arose.
Ark. Code Ann. § 16-17-206 (Supp. 1991).
This section was enacted as Act 142 of 1989 by our General Assembly to counter the effects of our decision in City of Springdale v. Jones, 295 Ark. 129, 747 S.W.2d 98 (1988), which addressed an identical fact situation. In that case, Timothy Jones was arrested for DWI in a part of Springdale which is situated in Benton County. Jones was convicted in Springdale Municipal Court and appealed to Washington County Circuit Court. The circuit court found the municipal court had no jurisdiction over the offenses occurring in Benton County, and granted Jones’ oral motion for writ of prohibition. In affirming the trial court’s granting of the writ we stated:
The question is whether the municipal court of the City of Springdale has jurisdiction over criminal offenses committed in Benton County. The answer is no. The Arkansas Constitution prevents it.
After Jones was convicted, he appealed to the Washingtn County Circuit Court. The judge stated he would consider an oral motion for a writ of prohibition which was made by Jones and granted. The judge concluded the municipal court had no jurisdiction over offenses occurring in Benton County. He was right.
Article 2, § 10 of the Arkansas Constitution provides in part:
In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by impartial jury of the county in which the crime shall have been committed;
City of Springdale v. Jones, 295 Ark. 129, 130, 747 S.W.2d 98, 99 (1988).
In Jones, we clearly stated that the Arkansas Constitution prohibits the City of Springdale from having jurisdiction over criminal offenses committed in Benton County. We do not retreat from this position. We have long held that the Legislature can neither enlarge nor diminish the jurisdiction of the courts except as permitted by the Arkansas Constitution and any attempt to do so is unconstitutional. Pike v. Rice, 297 Ark. 25, 759 S.W.2d 541 (1988); Nethercutt v. Pulaski County Special School Dist., 248 Ark. 143, 450 S.W.2d 77 (1970); Young v. Young, 207 Ark. 36, 178 S.W.2d 994 (1944); Rector v. State, 6 Ark. 187 (1845).
Under our constitution the jurisdiction of our municipal courts is concurrent with and no greater than jurisdiction of our justice of the peace courts, which we interpret to be county wide as Article 7, § 40 clearly provides that justices of the peace:
shall be conservators of the peace within their respective counties. . .
(Emphasis ours.)
Our General Assembly has further stated:
Justices of the peace in the townships subject to this act shall have original jurisdiction coextensive with the county.
Ark. Code Ann. § 16-19-401 (a) (1987). Under Article 7, § 43, municipal courts are vested with jurisdiction of justice of the peace courts:
Article 7, § 43. Corporation courts - Jurisdiction.
Corporation courts for towns and cities may be invested with jurisdiction concurrent with justices of the peace in civil and criminal matters, and the General Assembly may invest such of them as it may deem expedient with jurisdiction of any criminal offenses not punishable by death or imprisonment in the penitentiary, with or without indictment, as may be provided by law, and, until the General Assembly shall otherwise provide, they shall have the jurisdiction now provided by law.
(Emphasis ours.) See Pulaski County Municipal Court v. Scott, 272 Ark. 115, 612 S.W.2d 297 (1981)(upholding the countywide concurrent jurisdiction of justices of the peace and municipal courts).
Reading these provisions together, it is obvious that the jurisdiction óf a municipal court is confined to the county in which it is situated. For these reasons, Ark. Code Ann. § 16-17-206(b)(2)(Supp. 1991), which provides in part that the jurisdiction of municipal courts shall be enlarged to include portions of the city limits that extend into other counties, is unconstitutional. Accordingly, we issue a writ of prohibition to prevent the Springdale Municipal Court from exercising jurisdiction over a criminal offense committed in Benton County.
The writ of prohibition is granted.
Hays and Corbin, JJ., dissent. | [
-16,
-21,
-12,
60,
58,
64,
18,
-72,
83,
-101,
-31,
115,
-23,
-39,
4,
113,
-85,
-1,
117,
-7,
-63,
-74,
7,
105,
114,
-45,
-33,
-57,
-74,
-49,
-27,
-36,
92,
32,
-54,
-35,
70,
-54,
-81,
-36,
-114,
32,
-119,
-31,
80,
-98,
52,
41,
83,
15,
113,
-113,
-89,
47,
24,
-61,
105,
40,
91,
60,
73,
-78,
-104,
-43,
-1,
20,
-79,
53,
-115,
-121,
-8,
44,
-112,
49,
9,
-6,
115,
-90,
-122,
116,
111,
-7,
-120,
98,
98,
-117,
13,
-49,
-84,
-120,
22,
63,
-83,
-90,
-103,
97,
107,
1,
-106,
-105,
125,
22,
7,
-6,
107,
-59,
85,
60,
-124,
-114,
-78,
-95,
-124,
-16,
0,
34,
-53,
103,
16,
101,
-59,
-25,
94,
87,
51,
27,
-50,
-76
] |
Steele Hays, Justice.
Cargo Carriers, Inc., manufactures barges at Pine Bluff. Some are sold to third parties, some are retained and delivered to Inland Waterways Division, a separate division of Cargo Carriers, Inc. In 1978 the Arkansas Department of Revenues assessed a deficiency of $204,948.22 in Gross Receipts Tax (Sales Tax) claimed by the State on the delivery of sixty-six barges to Inland Waterways. The State took the position that when the sixty-six barges were “withdrawn from inventory” a taxable event occurred within the meaning of Ark. Stat. Ann. § 84-1902 (d) (Repl. 1980) which reads in part:
“The term ‘gross proceeds’ or ‘gross receipts’ shall include the value of any goods, wares, merchandise, or property withdrawn or used from the established business or from the stock and trade of the established reserves for consumption or use in such business or by any other person.”
Cargo protested and when administrative remedies provided no relief, it filed suit in chancery to enjoin collection of the tax, claiming the assessment of taxes amounted to an illegal exaction and, hence, was prohibited by Article 16 § 13 of the Constitution of Arkansas. Cargo contended that § 84-1902 (d) was not applicable because the barges were only partially completed in Arkansas. It said the unfinished hulls were then ferried to Paducah, Kentucky, for final completion and so the barges did not become a part of Cargo’s fleet until they had entered interstate commerce outside the State of Arkansas. Cargo’s petition asked for a refund of $61,180.89 in Use Taxes it had paid on the value of materials used in constructing the barges.
After testimony and proof the Chancellor found that the barges were completed at Pine Bluff and became subject to the Sales Tax under § 84-1902 (d) at that time. A deficiency of $204,948.22, based on the value of the completed barges at the time of delivery, was assessed and Cargo’s claim of refund was denied, as the proof showed that Cargo had been credited with the amount of Use Tax paid.
On appeal, no issue is raised that the Chancellor’s findings are against the preponderance of the evidence. Instead, we are asked to hold the Arkansas Gross Receipts Tax, as applied in this case, unconstitutional under the commerce, due process and equal protection clauses of the Constitution of the United States.
The State counters Cargo’s assignment of error with the familiar rule that constitutional questions cannot be raised for the first time on appeal. T. H. Epperson & Son, Inc. v. Robinson, 274 Ark. 142, 622 S.W.2d 668 (1982), Gross v. Gross, 266 Ark. 186, 585 S.W.2d 14 (1979). The point is well taken, as we find no basis in the record to support the argument on appeal.
Cargo cites only an amendment to its petition asserting that the assessment against it constitutes “an illegal exaction prohibited by the Constitution of the State of Arkansas”, as evidence that the issue was first presented to the trial court. But that attempt must fail. Art. 16 § 13 of the Arkansas Constitution provides that any citizen may institute suit in behalf of himself and others to protect against the enforcement of any illegal exactions. There is nothing about that provision of the Arkansas Constitution that bears any resemblance to those provisions of the United States Constitution which Cargo claims are violated, i.e. the commerce, due process or equal protection clauses. We readily reject the premise that a litigant can argue a violation of the illegal exaction provision of the Arkansas Constitution before the trial court and contend on appeal his argument includes the commerce, due process and equal protection clauses of the United States Constitution as well. Such a holding would be hostile to the principle that arguments must be presented to the trial court with clarity and particularity in order to be noticed on appeal. Abernathy v. State, 278 Ark. 250, 644 S.W.2d 590 (1983), Klobnock v. Abbott, 303 N.W.2d 149 (Iowa S. Ct., 1981), Foster v. Lamphere, 368 A.2d 1238 (R.I. S.Ct. 1977), City of St. Louis v. Butler Co., 219 S.W.2d 372 (Mo. S.Ct. 1949); Sewer and Waterworks Improvement District No. 1 v. McClendon, 187 Ark. 510, 60 S.W.2d 920 (1933).
The decree is affirmed.
Supplemental Opinion on Denial of Rehearing delivered March 28, 1983 | [
-16,
-2,
-36,
124,
56,
-54,
58,
-70,
17,
-87,
37,
83,
-83,
23,
17,
123,
-13,
-33,
112,
104,
-10,
-93,
65,
115,
18,
-105,
-101,
-57,
62,
-53,
-27,
-60,
78,
97,
-54,
-11,
6,
-62,
-55,
28,
-2,
0,
-86,
-23,
125,
97,
52,
-86,
50,
67,
113,
-116,
-21,
45,
26,
-61,
73,
44,
77,
58,
-63,
-71,
-70,
31,
71,
22,
-111,
36,
-101,
3,
-48,
60,
-128,
48,
0,
-24,
123,
-90,
-58,
116,
35,
-99,
-116,
32,
-29,
1,
5,
-3,
28,
40,
38,
-2,
-115,
-58,
-110,
57,
74,
75,
-66,
-99,
126,
2,
-122,
-2,
-6,
-108,
-33,
108,
-117,
-50,
-10,
-95,
37,
-31,
14,
3,
-33,
-61,
50,
96,
-42,
-30,
93,
5,
27,
-117,
-122,
-14
] |
Kirby, J.,
(after stating the facts). Appellant insists that the court should have directed a verdict in its favor and urges especially that it erred in giving said instruction No. 2, which ignores and leaves out the question of contributory negligence of appellee pleaded as a defense, directing the jury to find for appellee in case it found appellant was negligent in the operation of its street car. The instruction was objected to generally and specifically, and it is also true that in instruction No. 3 the court defined contributory negligence and told the jury that the burden was upon the defendant to prove such negligence by a preponderance of the testimony, and that, if it found from the testimony that plaintiff was guilty of contributory negligence, he could not recover “however negligent the defendant may have been in causing the accident,” which instruction was also generally and specifically objected to. Although the negligence of the driver of a motor vehicle cannot be imputed to an occupant oif the car, riding as a guest, such guest is not relieved of the duty to exercise ordinary care for his own safety, failure to do which, contributing to the injury, constitutes contributory negligence barring the recovery. Carter v. Brown, 136 Ark. 32, 206 S. W. 71 ; Itzkowitz v. Ruebel, 158 Ark. 460, 250 S. W. 535 ; Graves v. Jewell Tea Co., 180 Ark. 980, 23 S. W. (2d) 974. This instruction is necessarily conflicting’ with instruction No. 2, which directs the jury to find for the plaintiff if it found appellant guilty of the negligence that caused the collision and injury without regard to whether the injured person was guilty of contributory negligence at the time. It has long been well settled that an instruction which ignores a material issue in the case about which the evidence is conflicting and allows the jury to find a verdict without considering that issue is misleading and prejudicial, notwithstanding, another instruction which correctly presents that issue is found in other parts of the charge. In Railway v. Rogers, 93 Ark. 564, 126 S. W. 375, it was said: “Where the instructions are thus conflicting, it is impossible for an appellate court to tell which of them the jury followed, and such an error calls for a reversal. Separate and disconnected instructions, each complete in itself and irreconcilable with each other, cannot be read together so as to modify each other and present a harmonious whole.” 'See also Temple Cotton Oil Co. v. Skinner, 176 Ark. 17, 2 S. W. (2d) 676. The instruction is incomplete, ignoring and leaving out, as it does, the question or defense of contributory negligence, and the fact that contributory negligence is defined in the next instruction does not remedy the defect, since it leaves out of consideration altogether the contributory negligence of plaintiff and leaves for determination appellant’s conduct, the alleged negligence, as the sole issue for the jury’s verdict, telling them “then your verdict shall be for the plaintiff.” This instruction does not come within the apparent exceptions to the rule in those cases where it may be readily seen that the instructions may be read together without conflicting and as a harmonious whole, and, when they can be so read, it is the duty of the court to treat them accordingly. In Railway v. Rogers, supra, the instruction relative to contributory negligence followed the one defining negligence and allowed a recovery for the plaintiff if the jury so found, but it told the jury that the defendant company relied upon the plaintiff’s contributory negligence as a defense. There is nothing in this instruction complained of indicating that contributory negligence was an issue in the case, nor in the following- instruction defining- it, requiring- the jury to consider the alleged contributory negligence of the plaintiff as a defense to the suit in determining the question of liability of appellant under the said instruction No. 2.
We do not pass upon other assignments of error, since the cause must be reversed for the giving of said erroneous instruction No. 2. Neither can it be said under the circumstances of this case that appellee was guilty of contributory negligence as a matter of law, and appellant entitled to a directed verdict. The testimony is conflicting to some extent, leaving the question properly for the determination of the jury.
For the error designated, the judgment is reversed, and the cause remanded for a new trial. | [
-46,
-24,
-35,
-65,
120,
96,
58,
72,
1,
-89,
119,
-109,
-17,
-48,
-107,
63,
-16,
127,
85,
11,
-11,
-93,
23,
-45,
-14,
-109,
113,
-122,
-73,
74,
118,
-4,
77,
48,
-54,
-43,
102,
11,
69,
86,
-122,
22,
9,
113,
89,
34,
-28,
122,
-44,
15,
49,
-106,
-29,
42,
58,
-57,
109,
40,
105,
53,
-64,
-80,
-53,
7,
123,
0,
-77,
36,
-97,
39,
-8,
32,
-120,
57,
0,
-56,
113,
-74,
-126,
-12,
105,
-117,
8,
102,
98,
-96,
13,
107,
-99,
-71,
46,
126,
61,
-90,
58,
9,
9,
9,
-73,
-67,
119,
54,
30,
110,
-20,
93,
93,
116,
3,
-113,
-108,
-79,
-19,
116,
-70,
-61,
-21,
-125,
48,
96,
-52,
-70,
95,
69,
83,
-69,
-33,
-106
] |
Jack Holt, Jr., Chief Justice.
The appellant, Richard G. Bennett, was convicted on charges of first degree murder and was sentenced to life imprisonment. On appeal, Bennett argues the court erred: (1) in not directing a verdict based upon insufficiency of the evidence; (2) in admitting the deposition testimony of witnesses for the State when there was no showing that the witnesses were unavailable for trial; (3) in not declaring a mistrial when the prosecution introduced a statement by Bennett not provided to the defense during discovery; (4) in admitting evidence in violation of Rules 401, 403, and 404(b) of the Arkansas Rules of Evidence; (5) in allowing cross-examination of witnesses for the defense concerning Bennett’s marriages; and (6) in not declaring a mistrial due to improper comments by the prosecutor during his opening statement.
We reverse and remand because prejudicial error occurred when the court allowed the State to introduce the deposition testimony of material witnesses not shown to have been unavailable for trial. Bennett’s remaining points are discussed to the extent they are relevant to a second trial.
Bennett’s wife Marcia drowned in the Arkansas river on March 25, 1978. Bennett, the only eyewitness to the drowning, claimed that he and his wife had been fishing from an unfinished bridge near Morrison Bluff when Marcia fell from the bridge to the river below. At the time, the weather was misty, it was near freezing, and the river was flooding. Also, it was nighttime, and the wind was strong. Bennett told police that he first tried to rescue his wife by throwing her a rope.
Bennett’s attempts at rescuing Marcia with the rope proved unsuccessful. Apparently, he went to the couple’s car to get help while Marcia clung to one of the bridge supports or piers. Hearing his wife scream, Bennett returned but Marcia was no longer visible. Allegedly, Bennett jumped from the bridge into the river to save his wife. He later told authorities that he went for help after failing to locate Marcia.
Despite dragging operations and the efforts of an out-of-state diving team, Marcia Bennett’s body was not found until April 4 when it surfaced near the bridge several hundred feet from where the alleged accident occurred. The medical examiner concluded that the cause of death was drowning, but he found no evidence that Marcia Bennett had been forcibly drowned and discovered no sign of external or internal injuries.
SUFFICIENCY OF THE EVIDENCE
Bennett requested that the trial court direct a verdict on grounds that there was insufficient evidence to support a convic tion for first degree murder. The motion was denied. Bennett argues that the court erred. We disagree.
A challenge to the sufficiency of the evidence in the lower court and on appeal requires that this court address that issue even though the case is being reversed and remanded on other grounds. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). In considering the question, however, any errors allegedly committed by the trial court are disregarded. Id.
The issue is whether the verdict is supported by substantial evidence. Substantial evidence, whether direct or circumstantial, must be of sufficient force that it will, with reasonable and material certainty, compel a conclusion one way or the other. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). It is necessary to ascertain only the evidence favorable to the appellee and only that testimony which actually supports the verdict of guilt. Id.
The State’s case was built entirely upon circumstantial evidence, which can be sufficient to sustain a conviction as it may constitute substantial evidence. Still v. State, 294 Ark. 117, 740 S.W.2d 926 (1987). In order for circumstantial evidence to be sufficient to support the finding of guilt in a criminal case, it must exclude every other reasonable hypothesis consistent with innocence. Smith v. State, 264 Ark. 874, 575 S.W.2d 677 (1979). However, whether the evidence excludes every other reasonable hypothesis is for the fact finder to determine. Id.
In the main, the State’s proof was based on inconsistent statements made by Bennett to various authorities on separate occasions and on inconsistencies between those statements and the physical evidence obtained by officers investigating the drowning.
Dub Hamilton, the former sheriff of Logan County, was one of the first officers to interview Bennett. In a statement to Hamilton on March 26, Bennett described the first few moments before the incident as follows:
Marcia and I were fishing side by side on the bridge. We had fished quite some time and she was cold. I told her we may as well quit. I reeled in one pole. As I was preparing to take the bait off and put the pole up, Marcia took a couple of steps toward her pole. The next thing I heard her yell and when I looked up, her and the lantern was gone.
Bill Kimbriel, Hamilton’s chief deputy, testified that he did not recall that the second pole was rigged to fish when he found it on the bridge near where Marcia Bennett allegedly fell.
In a separate statement made on March 27 to Kimbriel and to John Bailey, a former criminal investigator for the Arkansas State Police, Bennett’s story changed. He told Bailey that he had rigged his wife’s pole for fishing and had returned to the car to get some more fishing tackle when he heard his wife scream. Already at the car, Bennett turned around and Marcia was gone from the bridge. Some three months later when visiting with Doug Stevens of the Arkansas State Police, Bennett again changed his story to reflect the earlier version given to Sheriff Hamilton.
There were other inconsistencies. At trial, Hamilton testified that on the night of March 25 he had noticed Bennett’s glasses had mud with water on them. Bennett could not explain how his glasses had stayed on after he supposedly jumped from the bridge to the water below and then swam from pier to pier in search of his wife.
The height of the bridge was measured at 24 to 27 feet depending on the point of measurement on the bridge. The depth of the water around the bridge was estimated at three to five feet with isolated pools near the bridge supports measuring between eight to ten feet. At least once, Bennett maintained that he had not hit bottom when he jumped from the bridge. Deputy Sheriff Kimbriel testified from experience that a jump of 27 feet into water three to five feet deep would not only have caused Bennett to hit bottom but that the jump would certainly have buckled Bennett’s knees and jarred his head upwards and that it would have been impossible for Bennett’s glasses to stay on.
Bennett had also indicated to the officers that the current around the bridge had been very strong. Kimbriel testified that there was no current in the area. Hamilton also testified that there was no current in the waters surrounding the bridge near Morrison Bluff.
In light of evidence concerning the lack of current in the river, the State’s case emphasized that Marcia Bennett’s body was not discovered until it surfaced four to five hundred feet from where Bennett claimed Marcia had fallen into the water nine days earlier. Hamilton testified that when the body surfaced, it remained absolutely stationary until removed by the medical examiner. Further emphasis was placed upon the fact that the body was not discovered anywhere near the site of the alleged fall despite extensive dragging operations.
Danny Sorey, an emergency medical technician, attended to Bennett for possible hypothermia or exposure on the night of the incident. Sorey testified that Bennett had been wearing slip-on type shoes, slacks, a tee shirt, and a shirt. Bennett told Sorey that he had been in the water for an hour or more.
Sorey testified that Bennett showed no signs of hypothermia and that his condition (i.e., body temperature, behavior, etc.) was inconsistent with Bennett’s statement that he had been in the icy water for an hour or more. In his subsequent statement to Investigator Doug Stevens, Bennett stated that he could not remember how long he had been in the river.
Further testimony by Sorey revealed that Bennett’s shoes, although wet, did not contain any mud or other residue from the muddy water or the river bottom. Bennett’s wallet was wet, but the contents were dry.
Sorey indicated that Bennett was primarily concerned for the safety of about $800.00 in bills in his wallet and that Bennett never expressed sorrow about the possible death of his wife. Bennett also told Sorey that at one point he had “gotten ahold of his wife” but that the current pulled her away, a fact which Bennett failed to relate to either Kimbriel, Hamilton, or Bailey.
At trial, both Kimbriel and Hamilton described the clothing found on Marcia Bennett’s body after it surfaced on April 4. She was dressed in thermal underwear, pants, a wool shirt, two sweaters, boots, and gloves. Officer Hamilton considered it significant that Marcia Bennett was found wearing gloves in light of statements by Bennett that when Marcia fell from the bridge into the water Bennett had told her to remove her jacket and a blanket, which she allegedly did. (Officers later recovered both the jacket and the blanket.) Hamilton testified that he thought it would have been very difficult for Marcia Bennett to remove her jacket in the water while still wearing the gloves found on her nine days later.
In Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984), this court affirmed a sentence of life imprisonment for first degree murder where the State’s evidence was entirely circumstantial. We stated that guilt may be proved even in the absence of an eyewitness to the crime, and we emphasized that false and improbable statements explaining suspicious circumstances are admissible as proof of guilt. Id. at 358. New statements of law have greater relevance to the evidence presented to the fact finder in the case at bar.
The State introduced additional evidence which was consistent with Bennett’s guilt but which we need not detail in great length. Bennett’s former girlfriend, Connie Mosier, testified by deposition that she had accompanied Bennett to the Morrison Bluff bridge prior to his marriage to the victim and that Bennett had commented, “This would be a good place to kill someone.” Don Buckner, Bennett’s insurance agent from Ohio, testified by deposition that Bennett called several times prior to the 1978 Arkansas trip to see if an insurance policy on Marcia Bennett’s life had been approved and had come into the office. According to Buckner, Bennett picked the policy up on or about the day the couple left for Arkansas from Ohio. Bennett was the named beneficiary. Buckner also testified that Bennett was upset (after Marcia’s death) when he discovered that the policy was not of the double indemnity type.
Based on the foregoing, we conclude that there is substantial evidence to support the verdict of guilt. As such, we find no error in the trial court’s refusal to direct a verdict in Bennett’s favor.
INTRODUCTION OF DEPOSITION TESTIMONY
Before trial, the court allowed the defense to depose one of its out-of-state witnesses on grounds that the witness would be unavailable for trial due to recent surgery. Thereupon, the State sought to depose several of its out-of-state witnesses absent any showing that they would be unavailable at trial. The court granted the State’s request as to witnesses Connie Mosier and Don Buckner even though it was conceded that the State could probably secure the presence of these witnesses at trial. Bennett’s counsel objected, but the objection, which was renewed before trial and just prior to introduction of the depositions, was overruled.
The depositions of Connie Mosier and Don Buckner were admitted pursuant to the provisions of Ark. Code Ann. § 16-44-202(d)(2) (1987), which provides:
At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used if it appears . . . [t]hat the witness is out of the State of Arkansas unless it appears that the absence of the witness was procured by the party offering the deposition.
The trial court’s conclusion that deposition testimony is permissible any time a witness is out-of-state overlooks the title, purpose, and general provisions of section 16-44-202.
Ark. Code Ann. § 16-44-202 is entitled “Deposing witnesses upon showing of inability to attend trial — Use of depositions.” Subsection (a) states:
If it appears that a prospective witness may be unable to attend or be prevented from attending a trial or hearing, that his testimony is material, and that it is necessary to take his deposition in order to prevent a failure of justice, the court at any time after the filing of an indictment or information may order. . . that his testimony be taken by deposition. [Emphasis ours.]
Subsection (a) makes clear that there must be some showing prior to trial as to the inability of the witness to attend before the court can order that the testimony of the witness be taken by deposition. Subsection (a) further requires a showing that taking of the deposition is necessary to prevent a failure of justice. If both requirements are satisfied, the court may, under subsection (d)(2), allow use of the deposition at trial if the party offering it shows that its witness is now dead, is out of the state, cannot attend because of sickness or infirmity, or failed to attend despite issuance of a subpoena. Here, the State not only failed to show that its witnesses could not attend trial and that there would be a failure of justice if the depositions were not permitted, but it was actually conceded that the State could obtain the presence of the witnesses at trial.
Bennett also argues that introduction of the deposition testimony of Connie Mosier and Don Buckner violated his constitutional right of confrontation. The State responds that a defendant has two types of protection under the confrontation clause — the right to face the witnesses against him, and the right to cross-examine those witnesses. The State argues both rights were protected because Bennett’s counsel was present when the witnesses were deposed, he was able to cross-examine them, and his cross-examination was with knowledge of the pending trial at which the depositions would be used. This position ignores a crucial point — the inability of the jury responsible for deciding a defendant’s fate to judge credibility by observing the demeanor of the witnesses who must sit face to face with the accused at trial.
In Lackey v. State, 288 Ark. 225, 703 S.W.2d 858 (1986), the State had failed to make a “good faith effort” to obtain the presence of a witness whose transcribed testimony from a former trial was introduced at a subsequent trial. This court stated:
While we do not renege on our conclusion that the Sixth Amendment does not require the confrontation with every witness every time a criminal defendant is retried, we find this witness’ testimony to have been so significant as to require that the jury in whose hands the fate of the appellant rested be allowed to observe the confrontation so as to see the witness’ demeanor and make its determination with respect to the matters addressed to him.
The rationale expressed in Lackey is equally applicable here. The deposition testimony of Connie Mosier and Don Buckner was obviously damaging to Bennett, and it was especially critical that the jury be able to observe these witnesses on the stand. It was error to allow their testimony by deposition without any showing that the witnesses could not attend trial.
Because we find that the trial court erred in its interpretation of section 16-44-202 and that it should not have allowed the State to take the depositions, we do not address Bennett’s other argument to the effect that section 16-44-202 is unconstitutional as applied.
STATE’S FAILURE TO DISCLOSE STATEMENT
Following the State’s case in chief, the defense put on several witnesses — including Bennett. Bennett again claimed that the drowning had been accidental. To rebut that testimony, the State called the victim’s daughter, Gloria Good (Bennett’s stepdaughter) . Good, who had taken the stand earlier, testified as a rebuttal witness in part as follows:
Q. Did Richard Bennett ever tell you how your mother had died?
A. Well, one time when he was hollering at me, he said — this was after — in a few weeks when we were still living with him, he told me that my mom hadn’t really just fallen oif the bridge, that she deliberately jumped off the bridge because she was tired of being my mother.
Bennett’s counsel objected that the State had failed to disclose this prior statement during discovery notwithstanding requests for all such statements. Counsel also requested a mistrial, and in the alternative asked that a cautionary instruction be given. The court determined that the objection was well taken but that a mistrial was not warranted.
At the close of rebuttal, the defense renewed the motion for a mistrial. At this point the State advised the court that Gloria Good had notified the prosecution of Bennett’s statement only minutes before she testified as a rebuttal witness. The court again denied the motion for mistrial.
In Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981), the defendant, like Bennett, filed a timely request pursuant to Rule 17.1(a)(ii) of the Arkansas Rules of Criminal Procedure, which provides:
Subject to the provisions of Rules 17.5 and 19.4, the prosecuting attorney shall disclose to defense counsel, upon timely request . . . any written or recorded statements and the substance of any oral statements made by the defendant or a codefendant.
In Earl, as here, the defendant took the stand in his own defense. Earl denied ever making an inculpatory statement concerning the crime charged — other than a challenged confession. During cross-examination, he was asked if after his disputed confession he had stated to one officer that “he felt a lot better about getting that off his chest.” The defense objected on the grounds that the State failed to disclose the prior statement during discovery. On rebuttal, the officer testified that the defendant in fact made the statement.
This court concluded in Earl that if our discovery rules are to be meaningful they must be complied with where: (1) there has been a timely request; (2) there is no finding of compliance by the State; and (3) there is prejudice to the defense. Id. at 13. In Williamson v. State, 263 Ark. 401, 565 S.W.2d 415 (1978), we held that Rule 17.1 imposes a duty upon the State to disclose to defense counsel, upon timely request, all material and information to which a party is entitled in sufficient time to permit his counsel to make beneficial use thereof. Any interpretation of Rule 17.1 to the contrary would indeed make a farce of the rule.
The State relies upon the prosecution’s claim that it was unaware of the undisclosed statement by Bennett until moments before Gloria Good testified as a rebuttal witness. However, A.R.Cr.P. Rule 19.2 in relevant part provides:
If additional material or information is discovered during trial, the party shall notify the court and opposing counsel of the existence of the material or information.
As such, there is a continuing duty of disclosure.
Rule 19.4, like Williamson, mandates that all materials and information to which a party is entitled must be disclosed in time to permit counsel to make beneficial use thereof. Neither the trial court nor Bennett’s counsel had notice of the information subject to disclosure until after it was presented to the jury. In Nelson v. State, 274 Ark. 113, 622 S.W.2d 188 (1981), we pointed out that in “a line of cases we have consistently, without exception, held that the State must comply with the pretrial discovery rules.” It is not that the evidence is necessarily inadmissible; rather, the problem is in the court’s failure to enforce the discovery rules.
The State contends that there was no duty to disclose because Gloria Good was a genuine rebuttal witness and that Bennett is also unable to show how he was prejudiced. McDaniel v. State, 294 Ark. 416, 743 S.W.2d 795 (1988); Parker v. State, 268 Ark. 441, 597 S.W.2d 586 (1980); and Renton v. State, 21A Ark. 87, 622S.W.2d 171 (1981). We find the State’s reliance on the “rebuttal witness” argument unpersuasive, Earl, supra, and we conclude that the evidence of prejudice is overwhelming.
The challenged statement by Gloria Good was the only evidence of any statement or act by Bennett which contradicted his other statements that the drowning had been accidental. The testimony likely had a devastating effect. Moreover, the court conceded that defense counsel’s objection to the testimony was well taken. Had the State disclosed the statement to court and counsel before the testimony was elicited, as is required by our rules of discovery, counsel for the defense no doubt would have convinced the court that the testimony should not be admitted. See also A.R.Cr.P. Rule 19.7.
In Earl, supra, the trial court refused to grant defendant’s motion for a mistrial even though it was evident that the State did not comply with our discovery rules. We reversed. The State’s failure to comply with the rules of discovery in this case was of equal magnitude.
“HIT MAN” TESTIMONY
Connie Mosier, Bennett’s former girlfriend, lived with Bennett sometime in 1977. At that time, Bennett was married to Marilyn Bennett and the couple was getting a divorce. However, Bennett had not yet met his future wife Marcia — the drowning victim in this case. Connie Mosier’s deposition was introduced at trial and it contained the following testimony:
He [Bennett] said he was going... to make a phone call. . . . [ W] hen he came back out of the phone booth, he said that he had made a phone call to somebody to have his wife killed, and that all he had to do was leave the keys, mail the keys either to this man or leave them with this man, to her apartment and he would take care of everything.
The testimony concerned Bennett’s former wife Marilyn, and both before trial and prior to the introduction of Connie Mosier’s deposition Bennett’s counsel argued that admission of the testimony violated Rule 404(b) of the Arkansas Rules of Evidence, which 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 he 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.
The trial court overruled the objections on grounds that the evidence was admissible pursuant to the “other purposes” exception contained in Rule 404(b).
Because the proof may develop differently in the event of retrial, we do not rule on the propriety of the court’s decision to admit the testimony. We do point out, however, that the issue is a close one. Ordinarily, the trial judge has wide discretion in admitting evidence of other crimes or wrongs and his decision will not be reversed absent an abuse of discretion. Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980). Other crimes evidence is admissible if it is independently relevant and the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. Carter v. State, 295 Ark. 218, 748 S.W.2d 127 (1988).
Obviously, the testimony was highly prejudicial. It is not so obvious that the evidence had great probative value, nor is it clear that the evidence truly provided proof of motive, plan, or knowledge. If the State’s case was built around the theory that Bennett murdered his wife Marcia for financial gain, we note that there was not one shred of evidence that he stood to gain financially from the proposed “hit man” killing of his former wife Marilyn.
We trust that at a second trial both court and counsel will carefully weigh the need for admitting this evidence. See Rowdean v. State, 280 Ark. 146, 655 S.W.2d 413 (1983).
“GOOD PLACE TO KILL SOMEONE” — INSURANCE TESTIMONY
In her deposition testimony, Connie Mosier alleged that she had on one occasion traveled to Arkansas with Bennett and while at the Morrison Bluff river bridge Bennett allegedly commented, “This would be a good place to kill someone.” Mosier also testified concerning attempts by Bennett to obtain life insurance for her with Bennett as the designated beneficiary. Bennett’s counsel objected on grounds that the probative value of the evidence was outweighed by unfair prejudice. The court admitted the evidence over counsel’s objections.
Whereas A.R.E. Rule 402 generally provides that all relevant evidence is admissible, Rule 403 provides that relevant evidence may be excused if its probative value is substantially outweighed by the danger of unfair prejudice. The question of prejudicial effect versus probative value is a matter addressed to the discretion of the trial judge, and on appeal this court will not disturb the trial court’s decision in the absence of manifest abuse of that discretion. See e.g., Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988).
Again, because the proof may develop differently in the event of retrial, we do not rule on Bennett’s argument that the trial court erred in admitting the evidence.
MARRIAGES
At trial, the defense called several witnesses to testify concerning Bennett’s standing in the community and his general character for truthfulness. To rebut this testimony, the State was allowed to question the witnesses as to whether they were aware of Bennett’s marital background — both past and present. The primary objection by the defense was that the State could have rebutted the credibility of Bennett’s character witnesses without touching on the sensitive area of Bennett’s many marriages. We agree.
A review of the record and the arguments of both parties convinces us that the trial court abused its discretion as to the scope of the State’s cross-examination on this issue. Similar questioning should not be permitted on retrial if its sole purpose is to test how well character witnesses for the defense are acquainted with Bennett.
PROSECUTOR’S COMMENTS DURING OPENING
Prior to trial of this case, a wrongful death judgment was entered against Bennett in Ohio in connection with the same incident. Before Bennett’s trial for first degree murder in this state, the trial court directed the State not to make reference to the style of the Ohio judgment, the verdict, or the findings of the jury. However, during his opening statements, the prosecutor made the following comment:
Richard Bennett denied knowing that he was even the beneficiary of Marcia Bennett’s life insurance policy until after the accident occurred. Now, they had a trial, and this is a transcript of the trial, in which Richard Bennett testified to under oath ....
Bennett’s counsel moved for a mistrial, which was denied by the court.
We find that the comment was highly prejudicial under the circumstances and assume that the State will not attempt, nor will the trial court allow, similar error to occur in the event of retrial.
Reversed and remanded. | [
-80,
-22,
-26,
63,
56,
-94,
42,
-102,
-45,
-54,
-13,
81,
-83,
-61,
1,
103,
115,
-83,
116,
105,
-57,
-73,
55,
-10,
-14,
-13,
57,
-57,
-78,
73,
-4,
-35,
76,
32,
-50,
-43,
102,
10,
-61,
90,
-118,
2,
16,
-15,
-40,
22,
48,
119,
-10,
31,
49,
-98,
-29,
42,
20,
-29,
73,
40,
75,
-124,
88,
48,
8,
-49,
-55,
16,
-78,
-90,
-97,
7,
120,
54,
-48,
49,
0,
-8,
99,
-106,
-126,
100,
105,
-117,
12,
98,
98,
1,
77,
-55,
-95,
-119,
47,
47,
-99,
-89,
-102,
96,
73,
1,
-98,
-3,
122,
20,
14,
120,
-26,
-51,
93,
-28,
1,
-49,
-108,
-79,
-85,
44,
-108,
27,
-13,
11,
20,
117,
-35,
-24,
92,
5,
121,
-97,
-113,
-10
] |
Per Curiam.
Petition for Review is denied. Purtle, J., would grant. | [
-73,
-19,
109,
28,
-118,
112,
26,
14,
77,
-87,
119,
113,
-81,
82,
-124,
101,
126,
111,
-42,
123,
92,
-78,
95,
-63,
115,
-13,
-109,
84,
-15,
-17,
-15,
-40,
72,
-80,
-30,
-43,
70,
-54,
73,
88,
-122,
23,
25,
-52,
-111,
-14,
60,
99,
112,
15,
49,
-42,
-13,
44,
27,
-61,
-56,
124,
123,
-83,
80,
-71,
-100,
7,
-3,
20,
-128,
17,
85,
-119,
-46,
110,
28,
16,
1,
-24,
115,
-76,
-122,
116,
43,
-7,
-115,
-28,
110,
49,
108,
-19,
-120,
-94,
6,
94,
-115,
-90,
-45,
8,
105,
97,
-122,
-65,
105,
80,
47,
124,
-29,
-35,
79,
-84,
15,
-113,
-66,
-93,
-57,
112,
-124,
-62,
-30,
2,
-110,
52,
-59,
-14,
124,
-14,
53,
-41,
-34,
-78
] |
John I. Purtle, Justice.
On May 9, 1981, appellee gave birth to an illegitimate male child. Prior to the birth of this child she had consulted with family and friends concerning adoption once the child was born. She also consulted her doctor on the matter and on two occasions consulted an attorney who had represented her previously in a divorce. Approximately eleven hours after the birth of the child she signed a consent to adoption giving the child over to appellants. They named the child Gerald David McCluskey and have kept him with them since that time. On July 14, 1981, a petition to adopt the child was filed in Jackson County Probate Court. A temporary decree of adoption was entered on August 31, 1981, allowing the McCluskeys to adopt the child. The appellee filed a petition on October 28, 1981, in the Probate Court of Jackson County asking that she be allowed to withdraw her consent to adoption. On March 8, 1982, the probate judge of Jackson County ruled that appellee’s consent was not valid and ordered custody of the child be returned to the natural mother which order was stayed pending appeal.
Appellants rely on three points for reversal: (1) that the probate court erred in allowing appellee to withdraw her consent after entry of the interlocutory decree; (2) the court erred in finding that appellee’s consent was not valid; and, (3) the court erred in finding that it would be in the best interest of the child to allow appellee to withdraw her consent. We agree with appellants’ first point and thus will not discuss the other two points in detail. The General Assembly of Arkansas enacted the Revised Uniform Adoption Act (Act 735 of 1977) to clarify the law in regard to adoption procedures. This act is codified in Ark. Stat. Ann. §§ 56-201 through 56-221 (Supp. 1981).
Prior to enactment of the Revised Uniform Adoption Act consent could be withdrawn before the entry of an interlocutory order almost as a matter of right. Combs v. Edmiston, 216 Ark. 270, 225 S.W.2d 26 (1949). After the entry of an interlocutory order in an adoption, but prior to a final order, consent could be revoked at the court’s discretion depending upon the circumstances. Siebert v. Benson, 243 Ark. 843, 422 S.W.2d 683 (1968); Martin v. Ford, 224 Ark. 993, 277 S.W.2d 842 (1955).
Ark. Stat. Ann. § 56-209 states:
(a) A consent to adoption cannot be withdrawn after the entry of a decree of adoption.
(b) A consent to adoption may be withdrawn prior to the entry of a decree of adoption if the Court finds, after notice and opportunity to be heard is afforded to petitioner, the person seeking the withdrawal, and the agency placing a child for adoption, that the withdrawal is in the best interest of the individual to be adopted and the Court orders the withdrawal.
The wording used in this statute caused a great deal of litigation thus this court delivered a per curiam on November 22, 1982, in which we stated:
In order to put an end to the confusion, we shall prospectively construe any decree of adoption to be a final decree, no matter whether it is interlocutory or final, if no subsequent hearing is required by the terms of that decree.
In the instant case the probate court’s interlocutory order was filed August 31, 1981, and stated:
. . . that from this date forward for all legal purposes said child shall be the child of the petitioners; that upon the entry of a final decree consistent herewith, a substituted birth certificate shall be issued showing the name of the adopting parents as the parents of said child and showing the name of the child to be Gerald David McCluskey.
The court found that it was in the best interest of the child that the adoption be made and did not provide for a subsequent hearing by the terms of the decree. Ark. Stat. Ann. § 56-213 provides that an interlocutory decree of adoption does not become final until the child has lived in the adoptive home for at least six months after the petition for adoption is filed.
The need for uniformity in construing adoption statutes is of paramount interest to this court. Cases in which two families battle for the right to have custody of a child are sometimes the most intense and heated cases that exist. The line of cases goes back at least as far as Solomon and still provides no easy answers. In view of our pronouncements on the subject, as well as the intent of the Revised Uniform Adoption Act, we feel that the probate judge erred in allowing the appellee to withdraw her consent after the temporary order of adoption had been entered. In making this ruling we do not imply that consent could not be withdrawn after an interlocutory order upon a proper showing of fraud, duress or intimidation. In Re: Adoption of Graves, 481 P.2d 136 (Okl. 1971). These issues were addressed neither in the court below nor in the appeal.
The natural mother in the case before us was 39 years of age and had three other children at the time of the hearing on her motion to withdraw consent. She testified that her sole means of support was her ex-husband who worked in Saudi Arabia. She was divorced from her husband both at the time of the birth of the child and at the time the hearing was held in the probate court. The record reflects that appellee’s consent was valid and that she made deliberate and careful plans to arrange for the child to be adopted in advance of the birth of the child.
One further note may be enlightening concerning withdrawal of consent. The commissioner’s note following § 8 of the Uniform Adoption Act (the exact same wording appears in Ark. Stat. Ann. § 56-209, previously quoted in this opinion) states: “This section limits the opportunity of a person to withdraw his consent. No withdrawal is permitted after entry of an interlocutory or final decree of adoption.” 9 ULA 33 (1979). It is obvious from this language that the intent of § 56-209 was to prevent untimely challenges to a consent to adoption form.
Based on the foregoing, we must conclude that the judge’s order of March 8, 1982, was in error and remand the case to that court with instructions to reinstate the temporary order of adoption in favor of the appellants and otherwise proceed in a manner not inconsistent with this opinion.
Reversed and remanded. | [
48,
-19,
-20,
44,
26,
-63,
56,
22,
83,
-85,
103,
83,
-21,
94,
20,
105,
98,
47,
-31,
113,
-47,
-77,
71,
96,
114,
-14,
49,
-41,
-79,
109,
-12,
-10,
72,
120,
-54,
-11,
66,
72,
-105,
-108,
-94,
3,
-119,
108,
80,
-58,
48,
-79,
26,
15,
69,
-98,
-74,
42,
59,
-55,
45,
-114,
-37,
-68,
-104,
114,
-97,
7,
-33,
6,
-95,
37,
-78,
37,
96,
107,
-104,
57,
17,
-24,
50,
-74,
-118,
100,
74,
-103,
12,
100,
102,
0,
-120,
-1,
-72,
-120,
78,
46,
61,
-90,
-102,
121,
74,
15,
-65,
-12,
76,
-112,
14,
-8,
47,
-83,
30,
-20,
8,
-114,
-44,
-75,
12,
112,
28,
3,
-29,
71,
36,
117,
-51,
-12,
85,
67,
50,
-109,
-122,
-14
] |
Lyle Brown, Justice.
This appeal comes from a second degree murder conviction. The appellant challenges the sufficiency of the circumstantial evidence to support the conviction and secondly, it is contended that the evidence "clearly shows that defendant was suffering from some mental disorder at the time the crime was committed”.
We agree that the evidence was circumstantial but we think it was sufficient to sustain the conviction. We shall briefly relate the evidence in the light most favorable to the State. (The defense produced no evidence.) Sometime during the night of June 16, 1972, appellant’s wife suffered death by extreme violence. She was found lying by the side of her wheel chair with bruises and contusions all over her body and with broken ribs on both sides. The medical examiner concluded that death resulted from "blunt force injury to the chest and abdomen”. The couple lived alone in an apartment. Appellant gave a statement which was introduced by the State without objection. He stated that about 7:00 p.m. on the night in question he took two sleeping pills and went to bed leaving his wife sitting in her wheel chair watching television; that about 5:00 a.m. he discovered his wife lying beside the wheel chair with the television buzzing; and that he called the police.
The landlady lived in an apartment adjacent to the Henley apartment. She testified that at about five o’clock in the afternoon of June 16 she heard an unusual noise coming from the Henley apartment, "three loud thumps”. Mrs. Ruth Lucky said she had a call from Mrs. Henley on the telephone at 5:00 p.m. on the 16th. (The jury could have reasonably concluded that the call was one of distress.) Dewayne Lucky said he went to the Henley apartment around six o’clock on the evening of June 16 (evidently in response to the call); that he knocked and received no reply; that he called to the Henleys but received no answer; that he could open the door about two inches and "it felt like something was against the door”. The coroner testified he went to the apartment around 7:00 a.m. on June 17. He estimated the time of death to have been from three to twenty-four hours. He found no signs of struggle in the apartment. An assistant medical examiner performed an autopsy at 9:30 a.m. on June 17. He opined that the victim had been dead from six to eighteen hours prior to the autopsy.
Officer David Isom testified he arrived at the apartment at 5:10 a.m. on the 17th in response to a telephone call, presumably from appellant; that appellant informed him that Mrs. Henley had fallen out of her wheel chair; that she often had blackouts and would come to herself "within a few minutes; that the body was 90% bruised; and that appellant "had a wild look in his eyes, like he had been taking pills or something”. The officer said the apartment appeared in an orderly condition.
Detective Joe Don Thomas participated in the investigation. He said the wheels on the victim’s chair were locked; and that there was no evidence of a struggle or of forcible entry. “I saw the defendant at approximately 6:00 a.m. and talked to him again around noon.He appeared abnormal; he wasn’t remorseful — he was smiling. His speech was slurred, and he could have been under the influence of something. I did not find any alcoholic beverages or bottles. He told me he had taken two sleeping pills at 7:00 p.m.”.
The State carries a heavy burden when circumstantial evidence alone is relied upon for conviction. The evidence “must exclude every other reasonable hypothesis than that of the guilt of the accused”. Jones v. State, 246 Ark. 1057, 441 S.W. 2d 458 (1969). If the jury believed the State’s evidence then this chain of circumstances was established: There was trouble in the Henley apartment around 5:00 p.m. when the landlady heard three loud thumps; Mrs. Henley made a distress call to her friend, Mrs. Lucky; in response to that call, Dewayne Lucky went to the apartment, arriving around six o’clock; he got no response and could not get in because the door was blocked from the inside; extensive investigation revealed no signs of breaking and entering; appellant was known to have been in the apartment from early in the evening until early the next morning; appellant’s explanation of his wife falling because of a blackout was not plausible; it is hardly conceivable that the victim could have received the brutal beating she suffered without appellant being alarmed by it, assuming it was done by someone other than appellant; it was impossible for the slaying to have been committed before appellant got home for the evening, because in that event he would have discovered the body when he came in. In other words, the proof points inescapably to the conclusion that appellant was in fact in the apartment when the crime was committed. Although the evidence is not as overwhelming as the State argues, we think the chain of circumstances is so connected as to exclude any cause of death other than it was suffered at the hands of appellant.
The other point for reversal is that appellant was suffering from a mental disorder and that the public defender who conducted the trial should have interposed the defense of insanity. We do not agree.
The defense of not guilty by reason of insanity was first advanced and appellant was sent to the State Hospital for observation. It was there found that appellant was probably without psychosis at the time of the offense. The public defender was furnished with an exhaustive record compiled on appellant at Ft. Roots Hospital, a veterans institution for nervous diseases. Those records were introduced at the hearing on motion for new trial. The conclusion of the Ft. Roots staff was that at no time during appellant’s last admission (1970) did he show any evidence of psychotic behavior. The report also mentioned some facts uncomplimentary to past conduct. The public defender testified at the hearing on motion for new trial that, under the circumstances, it would not have been to appellant’s best interest to plead insanity; that he fully explained the facts to appellant; and that appellant agreed the plea should be withdrawn. We refuse to overturn the case on the second point. In fact the public defender, with the consent of his client, made a tactical decision which was wholly within the bounds of propriety. Johnson v. State, 249 Ark. 208, 458 S.W. 2d 409 (1970); Tollett v. Henderson, 93 S. Ct. 1062, 36 L. Ed. 2d 235 (1973).
Affirmed.
Harris, C.J., not participating. | [
113,
-22,
-7,
-113,
59,
-32,
42,
120,
112,
-27,
112,
123,
-89,
-45,
93,
107,
-110,
95,
117,
97,
-9,
-73,
119,
73,
-78,
-77,
98,
-41,
-13,
106,
-10,
-1,
76,
32,
-126,
85,
-30,
10,
-25,
88,
-114,
-113,
-71,
-32,
16,
-110,
32,
47,
-52,
15,
-79,
-97,
-29,
42,
54,
-58,
105,
40,
75,
46,
64,
97,
-120,
13,
-55,
50,
-78,
-122,
-100,
-90,
-72,
28,
-99,
-79,
0,
-24,
49,
-124,
-126,
116,
103,
-103,
12,
96,
99,
33,
9,
-19,
-32,
-55,
7,
126,
-99,
-89,
-104,
97,
73,
-20,
-97,
-65,
126,
116,
10,
120,
105,
-42,
125,
100,
-97,
-49,
-106,
-79,
-51,
40,
-98,
-72,
-5,
33,
50,
113,
-49,
-30,
92,
69,
90,
-101,
-110,
-74
] |
Robert H. Dudley, Justice.
The issues in this case are governed by the law of torts. Appellee Roy Brown was the operator of a logging truck belonging to appellee Gaylor Thomas. The truck held a full cargo of pulpwood logs on its bed and was parked unattended on a descending slope in a line of trucks to be unloaded at the Arkansas Kraft Corporation in Conway. One of the appellants, Billy H. Cates, a carpenter, was engaged in construction work downhill from the unloading area. Either the gear became disengaged or the braking mechanism failed, or both, and the truck rolled toward Cates. He was injured while attempting to avoid being hit. He and his wife, Sandra, filed suit in tort. The jury awarded $2,000 to Billy Cates and $300 to Sandra Cates. They appeal. In addition to the Cates occurrence the appellee’s logging truck struck a pickup truck belonging to W. J. Hightower. He intervened in the suit and asked for damages for the loss in value to his pickup truck. The jury awarded him $1,000 and he also appeals. Jurisdiction is in this Court pursuant to Rule 29 (1) (o). We affirm as to Sandra Cates and W. J. Hightower but reverse and remand as to Billy H. Cates.
Billy H. Cates alone argues the first four points of appeal. He initially assigns as error the refusal by the trial court to give his requested instruction on loss of future earnings. Although the trial court’s ruling on this point was correct, we discuss it because there is a likelihood the matter will again come up on retrial.
Loss of earnings and loss of earning capacity are two separate elements of damage. A.M.I. Civil 2d 2201, 2206 and 2207; Check v. Meredith, 243 Ark. 498,420 S.W.2d 866 (1967). Judge Henry Woods, who served as chairman of the Supreme Court Committee on Jury Instruction which authored the book Arkansas Model Jury Instructions, Civil 2d (1974), thoroughly discusses the two elements of damages in Earnings and Earning Capacity as Elements of Damage in Personal Injury Litigation, 18 Ark.L.Rev. 304 (1965). Briefly stated, damage resulting from loss of earning capacity is the loss of the ability to earn in the future. A.M.I. 2d 2207. The impairment of the capacity to earn is the gravamen of the element. It is sometimes confused with permanency of the injury but is a separate element. Woods, supra, at 305. However, an instruction on this element is normally given only in the event of a permanent injury. Id. at 305 n. 12. Proof of this element does not require the same specificity or detail as does proof of loss of future wages. Coleman v. Cathey, 263 Ark. 450, 565 S. W.2d 426 (1978). The reason is that a jury can observe the appearance of the plaintiff, his age and the nature of the injuries which will impair his capacity to earn. In addition, proof of specific pecuniary loss is not indispensable to recovery for this element. Id.
Conversely, the element of loss of future earnings must be proven with reasonable certainty. Swenson & Monroe v. Hampton, 244 Ark. 104, 424 S.W.2d 165 (1968). An instruction on this element is normally given only when the plaintiff will lose wages in the future but has sustained no injury which will impair his earning capacity. Woods, supra, at 305. In the case before us, the damage from loss of future earnings would be the loss of wages from the date of the trial until the plaintiff is able to return to full employment. Confused terminology does appear in some of our cases prior to the publication of the Arkansas Model Jury Instructions book. Id. at 305 n. 13.
Here, appellant Cates asked for the instruction on the loss of future wages, A.M.I. 2d 2206. He was entitled to the instruction only if he proved this element with reasonable certainty. Loss of future earnings is proved with reasonable certainty by evidence involving two basic factors: (1) the amount of wages lost for some determinable period, for example, $100 per month; and (2) the future period over which wages will be lost, for example, 18 months. The jury is able, then, to calculate the product of the two factors which, reduced to its present value, represents the loss of future earnings.
Even though his testimony was controverted, appellant Cates supplied the first factor for the jury’s consideration. He testified that from the date of the accident until the date of the trial, a period of 20 months, he had been unable to work for 684 hours as a result of his injuries, which amounted to lost wages of $5,745.37. However, he did not testify about a period of lost future wages. His supervisor testified that because of the injury appellant was unable to perform as well as he had in the past and that because of the injury Cates, while injured, would be the last hired on a new job and the first discharged on an existing job. Thus, his supervisor’s testimony on the second factor was that there was some undetermined period of loss of future wages, but that testimony still allows only sheer speculation on the second factor. This failure of proof was not supplied by any of the other witnesses who testified on the subject. The three other witnesses were physicians and not one of them testified that appellant Cates would suffer any future loss of wages. Indeed, two of the orthopedic surgeons testified that Cates had no disability and could return to full work whenever he chose. The third testified that appellee’s figure of physical impairment would not exceed five percent of the body as a whole but he offered no testimony about a future loss of wages. He stated: “A test of time is the only thing that would answer that accurately.” We need not decide whether this testimony would have been , sufficient to require an instruction on loss of future earning capacity because appellant did not request such an instruction and does not raise the issue on appeal. We need only determine whether the jury should have been instructed on the loss of future earnings and that, in turn, is determined by whether the jury could have reached a conclusion, without speculation, on a future period of time over which wages would be lost. The answer is obvious. The second factor was not proven. Conjecture and speculation cannot be permitted to replace proof. Check v. Meredith, supra. Thus, the trial court was correct in refusing to give the requested instruction on loss of future earnings.
Billy Cates next contends that the trial court committed reversible error by the giving of an instruction on the standard of care for a contractor. A.M.I. Civil 2d 1204. There is no basis in the record for the instruction and it should not have been given. However, the verdict rendered the error harmless since the jury found against appellees on the issue involved in the instruction. The giving of an erroneous instruction is harmless error where the jury was not misled or the jury rejects the theory of the instruction. Bussell v. Missouri Pacific Railroad Co., 237 Ark. 812, 376 S.W.2d 545 (1964).
Billy Cates’ third point is that the trial court committed reversible error by giving the pattern instruction on circumstantial evidence, A.M.I. 2d 104. The instruction was proper because the case did involve circumstantial evidence. Ford Motor Company v. Fish, 233 Ark. 634, 346 S.W.2d 469 (1961). As an example, appellant Cates gave direct evidence that he was injured when logs rolled off the bed of appellee’s truck. The testimony was vigorously disputed by one of appellee’s witnesses who testified to evidence which circumstantially indicated that Cates could not have been struck by the logs.
Appellant Billy Cates’ last point is that the trial court erred in allowing questions about deductions from wages. The contention has merit. Cates’ employer was called to the stand to dispute Cates’ prior testimony about the loss of wages up until the time of trial. He testified three times that he had given the gross amount of wages paid to Cates. Even after that, the following took place:
Q. [Appellees’ attorney]. That does not include the necessary deductions that would come out of a man’s hourly wages?
A. No, sir.
Q. No taxes; no social security?
Appellants’ attorney then objected on the specific ground that an award for lost wages should not be reduced by taxes or social security. The trial court overruled the objection and allowed the witness to answer: "It does not include any deductions for taxes and Social Security and so forth.”
Curiously, we were not presented the issue of deducting taxes in computing any type of personal injury awards until this year. We then held that the trial court should not instruct the jury that the plaintiff’s recovery for personal injury is tax free. Bashlin v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982); see Sexton, Damages — Income Tax as a Factor in Measuring Personal Injury Awards, 8 Ark. L. Rev. 174 (1953). This case presents a corollary issue in computing awards for lost wages. We adopt the preferable rule which is that the measure of damages for a wage loss is the gross amount of wages. See Woods, supra, at 307; Deduction of Taxes in Computing Damages for Impairment of Earning Capacity, 51 Colum.L.Rev. 782 (1952). Therefore, taxes, Social Security, retirement contributions or other with-holdings may not be used to reduce a plaintiff’s recovery for lost wages. However, the question, “No taxes; no social security?” as used in this case was not a valid inquiry to establish that the wages were gross wages for that fact had been established three times. Rather, the question unfairly injected into the trial the issue of taxation. The loss of earnings should have been decided solely on material issues and taxation is not such an issue. Accord Seely v. McEvers, 115 Ariz. 171, 564 P.2d 294 (1977). Thus, the evidentiary ruling was erroneous. An error in the admission of evidence must be considered to be prejudicial unless absence of prejudice is shown. Arkansas State Highway Com’n. v. Roberts, 246 Ark. 1216, 441 S.W.2d 808 (1969). Absence of prejudice has not been demonstrated in this case. Therefore, we reverse as to appellant Billy H. Cates.
The final point is raised by appellant Hightower. He contends that “the trial court erred in excluding evidence offered about the history and value” of his pickup truck. The trial court excluded testimony about modifications or changes made by appellant to the vehicle and about its original cost. Appellant contends this is relevant history about the vehicle and should have been admitted. However, there was no proffer of the witnesses’ testimony. An exclusion of evidence cannot be reviewed in the absence of a proffer showing what the evidence would have been. The point was not preserved. Boyd v. Brown, 257 Ark. 445, 373 S.W.2d 711 (1963).
However, the second phase of this point was preserved. Appellant Hightower’s attorney properly asked him what the fair market value of his pickup truck was immediately before the accident. He did not answer that question, but instead responded: “In my opinion, I wouldn’t have took twenty-five hundred dollars for it.” The trial court subsequently advised the jury to disregard the answer. Appellant then testified that the value of the vehicle immediately before the accident was $1,500. The trial court was correct. Damages to a vehicle are correctly measured as the fair market value immediately before and immediately after the occurrence. Ark. Stat. Ann. § 75-191 (Repl. 1979); Beggs v. Stalnaker, 237 Ark. 281, 372 S.W.2d 600 (1963). Therefore, we affirm as to W. J. Hightower.
Sandra Cates also gave notice of appeal, but she neither assigns a point of error nor does she make an argument about an error in her $300 award. Affirmed as to appellant Sandra Cates.
Affirmed as to W. J. Hightower and Sandra Cates. Reversed and remanded as to Billy H. Cates. | [
-16,
122,
-112,
-100,
24,
-96,
42,
26,
113,
-59,
37,
87,
-25,
-17,
5,
105,
-9,
125,
-47,
43,
-41,
-93,
7,
-46,
-126,
51,
-7,
-59,
56,
75,
36,
-42,
79,
48,
-54,
-43,
102,
64,
77,
60,
78,
6,
58,
-12,
121,
3,
48,
106,
66,
79,
49,
-97,
-54,
46,
24,
79,
12,
44,
105,
-32,
88,
-15,
-126,
7,
127,
16,
-93,
68,
-100,
67,
88,
14,
-48,
49,
0,
-24,
114,
-74,
-126,
84,
105,
-103,
12,
-30,
114,
3,
5,
-59,
-4,
-72,
6,
-10,
-103,
-90,
-30,
24,
3,
73,
-73,
20,
126,
4,
20,
-2,
-6,
85,
92,
104,
-121,
-114,
-44,
-79,
-49,
-92,
-100,
27,
-5,
-121,
50,
117,
-52,
-78,
93,
7,
90,
-101,
-105,
-10
] |
Darrell Hickman, Justice.
The issue is whether the State Merit Council had the authority to order the reinstatement of Robert Selph, an employee of the Department of Education. Selph argues the appellees had no right to appeal from the Council’s decision. The trial court set aside the Council’s order and we affirm the decision.
Robert Selph was fired on December 11, 1980, from his job as food service instructor at the Quapaw Vocational Technical School in Garland County, Arkansas. He was accused of stealing meat from the food service center. Selph elected to protest his firing through the grievance procedure of the Department of Education. A grievance committee met with Selph and decided he could remain on leave without pay through December 15, 1980, while he pursued his grievance. On January 7, 1981, a hearing was held before Shirley Stancil, the Department of Education’s personnel officer; after hearing testimony she upheld Selph’s dismissal. An Ad Hoc Grievance Committee reviewed the personnel officer’s report and recommended to the director of the Board of Education that Selph’s termination be upheld. The director took the committee’s recommendation and upheld Selph’s dismissal on February 27, 1981.
Selph had a right to one more hearing before the State Employee’s Grievance Committee, but instead of pursuing that right he filed a petition for judicial review in the Pulaski County Circuit Court. Five months later that court entered an order transferring the case to the Arkansas Merit Council referring to Act 693 of 1981. This order was entered September 8, 1981. A hearing before the Merit Council was held November 2, 1981, and the Council ordered Selph’s reinstatement.
The appellees, the Vo-Tech School and the Department of Education, filed an action in the Garland Circuit Court to prevent the execution of the Merit Council’s order or to have it declared void. The action sought court review either by way of appeal or certiorari. Selph objected to the court’s jurisdiction and on appeal essentially relies on the principle that there can be no appeal from an order discharging or reinstating a state employee. Arkansas Livestock and Poultry Commission v. House, 276 Ark. 326, 634 S.W.2d 388 (1982).
The trial court accepted the case and held that there was no statute or rule that authorized the Merit Council to act in Selph’s case. The court also held that Selph had waived any right he may have had to review of his case by the Merit Council because Selph elected to seek relief through the Department of Education’s grievance procedures and failed to exhaust his remedies under that system.
We agree the Merit Council had no authority to order Selph’s reinstatement. The Merit Council had no authority over the matter at all at the time Selph was fired or any time during his search for relief. Therefore, the Council could not act at all in Selph’s case. Selph was fired on the 11th day of December, 1980. The final step Selph chose to take in the grievance procedure was exhausted February 27, 1981. He had five days to appeal from that decision to the State Employee’s Grievance Committee. Rather than do so he waited twenty-seven days and then filed a petition for review in the Circuit Court of Pulaski County. At that time Act 693 of 1981 was not in effect. In fact, it did not become effective until June 17,1981, some two months later. We do not reach the question of the import of Act 693.
The appellants’ reliance on the case of Arkansas Livestock and Poultry Commission v. House, supra, is mis placed. In House, we held an employee had no right to appeal from a department’s order firing him. We do not have an attempt to appeal from an adverse ruling of an officer or board authorized to discharge employees. The question here is one of a board that has no authority in a matter and yet makes a decision. More specifically the question is whether such an order can be declared void. In this case one state agency sought to prevent another from acting beyond its authority. The state agency aggrieved has a right by certiorari to seek review of such a matter. Dixie Downs, Inc. v. Arkansas Racing Commission, 219 Ark. 356, 242 S.W.2d 132 (1951); In re Goldsmith, 87 Ark. 519, 113 S.W. 799 (1908); Adams v. Cockrill, 227 Ark. 348, 298 S.W.2d 322 (1957).
Affirmed.
Purtle, ]., dissents. | [
20,
-22,
-46,
28,
41,
-63,
58,
-74,
83,
-85,
103,
-45,
-83,
50,
1,
89,
-13,
109,
88,
121,
-45,
-73,
81,
105,
98,
-13,
-39,
-59,
-77,
79,
-28,
126,
72,
48,
-54,
-43,
70,
-22,
-53,
80,
-86,
38,
-85,
-17,
121,
-124,
56,
34,
54,
15,
33,
-34,
-29,
44,
24,
-57,
-24,
40,
91,
-81,
72,
-77,
56,
13,
111,
4,
-79,
39,
-98,
7,
-16,
47,
24,
57,
1,
-8,
122,
-76,
10,
64,
11,
-103,
44,
100,
98,
18,
-80,
-11,
-84,
-120,
62,
-97,
-99,
-94,
-112,
73,
99,
5,
-105,
-104,
112,
20,
11,
124,
-29,
-123,
87,
44,
74,
-114,
-100,
-77,
15,
37,
-108,
1,
-29,
2,
16,
53,
-50,
-26,
92,
71,
115,
91,
-58,
-112
] |
GriffiN Smith, Chief Justice.
D. E. Thomas, Sheriff, now serving the remainder of an elective term, was a candidate in the July 25th democratic primary for the nomination, to succeed himself. Opposing were Marlin Hawkins and William E. Bearden. The certified returns showed that 2,382 votes were cost for Hawkins, 2,164 for Thomas, and seven for Bearden. Within apt time (Ark. Stat’s, § 3-245) Thomas contested, attaching to his complaint a detailed list of votes alleged to have been irregular or invalid, amounting to more than 700. The votes listed as invalid would, if taken from Hawkins’ total, change the results and make Thomas the nominee.
The Court held that the affidavit attesting verification was legally .insufficient, and for that reason alone dismissed the action.
Facts found by the Court were inconclusive because in summarizing effect of testimony tliere was the judicial statement that it was not necessary to determine which side prevailed as to weight of evidence and the credibility of witnesses. According to the Court’s findings, Thomas and his witnesses testified in effect that the plaintiff came into the Circuit Clerk’s office where the affidavit was signed in the Clerk’s presence, then immediately returned to his own office just across the hallway. Some of the witnesses called by the plaintiff testified that Charles L. Farish, counsel for Thomas, asked his client, in the Clerk’s presence, if allegations of the complaint were true, “or words to that effect,” and that Thomas replied that they were. There was no testimony that words passed directly between Thomas and the Clerk.
On behalf of Hawkins the Clerk testified that, when the complaint was filed Thomas was not personally present, hut [said he] “I filled out the jurat because [I] was certain that the affidavit bore the actual signature of the plaintiff, [so] I assumed to verify and acknowledge the signature.” In a measure this testimony was supported by Mrs. Dorothy Brents, an employee of the Clerk’s office.
The Court found that the applicable law “is clear and unambiguous, without reference to the verity or truthfulness of any particular witness,” basing these conclusions upon Ark. Stat’s, §§ 28-105, 28-206, 27-125, 40-101 and 102; statements in American jurisprudence, Vol. 1, §§ 2, 13, and 14; Kirk v. Hartlieb, 193 Ark. 37, 97 S. W. 2d 434; Thompson v. Self, 197 Ark. 70, 122 S. W. 2d 182; Murphy v. Trimble, Judge, 200 Ark. 1173, 143 S. W. 2d 534; Cox v. State, 164 Ark. 126, 261 S. W. 303, and 1 R. C. L. 765.
Act .386, approved March 28, 1947, amends §§ 3 and 12 of Initiated Act No. 1 of 19.17, and repeals § 6 of Act 123 of 1935.
Under § 3772 of Crawford & Moses’ Digest, § 4738 of Pope’s Digest, it was necessary that the contestant support his complaint by the affidavits of at least ten reputable citizens. Section 3-245, Ark. Statutes, embraces the provisions of Act 386 of 1947, and requires verification by the affadivit of the contestant [only] “to the effect that he believes the statements [in the complaint] are true.”
The verification filed by appellant reads: “State of Arkansas, County of Conway. I, D. E. Thomas, state on oath that I am the plaintiff in the above-styled cause, and that I believe the statements set forth in this complaint are true and correct. D. E. THOMAS. Subscribed and sworn to before me this 12th day of August, 1950. R. W. MORGAN, JR., Circuit Clerk.”
A majority of the Court thinks that as a prerequisite to the issues raised — that is, before legal effect of the testimony regarding the manner of signing and acknowledging the verification can be adjudicated — the factual status should be decided by the trial Court: whether Thomas, after signing the affidavit, failed — in the presence of the Clerk — to assert his belief in the truthfulness of what the paper contained. Should this fact be decided against Thomas the contest should be dismissed.
The Chief Justice and Mr. Justice Leelar entertain the view that under the testimony most favorable to Hawkins there was sufficient formality to satisfy the legislative intent.
Reversed and remanded. | [
116,
-18,
-32,
-97,
8,
33,
-120,
46,
-110,
-125,
-27,
83,
-27,
74,
4,
117,
-53,
79,
81,
104,
-58,
-109,
22,
-27,
-78,
-77,
-21,
-43,
53,
-23,
-76,
-35,
76,
-68,
90,
-107,
70,
106,
-49,
-40,
-50,
-118,
41,
-59,
90,
-112,
60,
52,
114,
79,
5,
-66,
-9,
56,
24,
-53,
73,
44,
-37,
-96,
-56,
-79,
-102,
7,
93,
22,
49,
-26,
-102,
3,
88,
46,
-48,
49,
-128,
120,
115,
-90,
2,
-12,
105,
-119,
40,
-26,
98,
41,
-99,
-115,
-84,
-84,
23,
63,
29,
-26,
-110,
105,
75,
104,
-74,
-39,
127,
16,
14,
126,
114,
-59,
25,
46,
42,
-98,
-102,
-85,
7,
32,
-114,
11,
-29,
-88,
-108,
113,
-51,
-14,
93,
69,
48,
-101,
-121,
-112
] |
McHaney, J.
On September 18, 1929, appellee filed bis claim in the county court of Hempstead County for damages to land, crops, timber and fences by reason of the relocation and construction as relocated of Highway No. 27 through his lands, the total damage claimed being $625. The county court disallowed the claim, and an appeal was taken to the circuit court where, on a trial de novo, there was a verdict and judgment for $400 in his favor.
Two grounds are now urged by appellant for reversal of the case. The first is that the court erred in refusing to give instruction No. 1 requested by it. This instruction is exactly the same as requested instruction No. 4 in case No. 1703, Hempstead County v. Gilbert, post p. 280, in which an opinion is this day filed, holding that appellant’s contention in this regard is not well taken. This case on this point is therefore ruled by that.
The second ground for reversal is that the court erred in giving instruction No. A on its own motion, which is as follows: “You are instructed that the burden of proof rests upon the plaintiff to establish his claim for damages to his land arising from the construction of the public road through said land, and, if you find from a preponderance of the evidence that he has been damaged by reason of the manner in which said road runs through his land, and in the manner of its construction and by reason of the shape and 'condition in which the land is left, then you will find for the plaintiff in such sum as you may find will compensate him for said damages less the benefits which he has received by the enhancement of the value of said lands by the construction of said road, if any. In determining the amount of plaintiff’s damage, if any, you may taire into consideration the market value of said lands, if it has been shown, prior to the building of the road, and the market value thereof if it has been shown, subsequent to the building of the road, and if you find that the market value of said land before and after the building of the road was affected only by the building of the road and the condition in which the land was left, then you are instructed that the measure of plaintiff’s recovery will be the difference between the said market value before the road was built and after it was built. The plaintiff is also entitled to receive compensation for damage to his crops and fencing, if damage has been shown by a preponderance of the evidence.”
A specific objection was interposed to this instruction on the ground that it permitted the jury to consider as an element of damages the relocation of the road so as to leave the main residence of the appellee off the road, the contention being that every one must take notice of the right of the county or State to change the location of a road, so that it would not pass immediately by the residence, and that there can be no recovery on account of such a change. Appellee answers this contention by stating that he does not think the instruction open to this objection, since no mention is made in the instruction of appellee’s residence, and cites Donaghey v. Lincoln, 171 Ark. 1042, 287 S. W. 407, and Gate v. Crawford County, 176 Ark. 873, 4 S. W. (2d) 516, to sustain the instruction. The two oases referred to do not relate to the question now before the court, and, as we view them, have no bearing on it. We think the instruction is open to the objection made against it, especially when taken in con nection. with the evidence. Appellee was permitted to testify over appellant’s objections to the measure of his damages, which included the fact that the old road ran by his residence and that the new road did not. He was asked this question, “Now, I want to know the difference between the reasonable market value of your land as the old road was laid out and was there in front of your residence premises, just what it was before this road was constructed, and what it was afterwards, taking in consideration all damages done and any benefits in it.” He answered that he had been damaged $1,000. Other witnesses for the appellee testified to the damages done appellant, taking into consideration the damage by reason of the relocation of the road, so that it did not run immediately in front of appellee’s residence. We are of the opinion that this was not a proper element of damage to' be considered by the jury, and that the court erred in permitting the witnesses to testify thereto and in giving instruction No. A, which is clearly open to the objection made, and permitted the .jury to assess the damages on such basis. No person has a vested right in the maintenance of a public highway in any particular place, as the power is in the State to relocate the road at any time in the public interest. Therefore, the change in the road so as to leave appellee’s residence off the new road did not constitute an element of damage in this case. The proper measure of damages was the fair market value of the land talien, plus the damage, if any, to the land not taken, less the benefits to the land, if any, by reason of the construction of the new highway, including damages to crops, etc. If the benefits equaled or exceeded the damages, there can be no recovery.
For the error indicated the judgment will be reversed, and the cause remanded for a new trial. | [
-16,
108,
-104,
-19,
-117,
-32,
10,
-104,
65,
-95,
-10,
95,
-3,
-62,
13,
47,
-25,
125,
69,
120,
-44,
-89,
66,
-42,
-79,
-77,
-61,
85,
-99,
-51,
102,
-41,
77,
48,
-54,
29,
102,
-126,
-19,
92,
-114,
-114,
-117,
126,
-39,
64,
60,
111,
0,
11,
113,
-113,
-5,
44,
25,
-61,
-88,
44,
75,
57,
25,
-72,
-78,
77,
123,
13,
-95,
-11,
-66,
3,
-40,
42,
-104,
61,
-127,
-56,
118,
-76,
-122,
116,
3,
-103,
8,
34,
102,
17,
77,
-57,
-7,
-67,
46,
124,
9,
-92,
-126,
24,
-101,
64,
-106,
-97,
93,
64,
70,
126,
-20,
-123,
93,
104,
7,
-54,
-48,
-75,
-49,
28,
-104,
3,
-17,
11,
48,
113,
-51,
-86,
93,
-26,
114,
-101,
-121,
-101
] |
MiNor W. Millwee, Justice.
Appellants are the five children and two minor grandchildren of John Story, deceased. As the sole heirs of said deceased, appellants filed this suit in the Columbia Chancery Court against Emma Story, widow of Jolm Story, deceased, and the other appellees to cancel certain conveyances between said appellees covering a 175-acre tract of land, and for an accounting of rents and other receipts from certain oil and gas leases on said land.
The complaint filed by appellants alleged the death of John Story and his ownership of the 175-acre tract; that in September, 1939, after the death of John Story, the Citizens Bank of Magnolia instituted proceedings to foreclose a deed of trust executed by John Story and Emma Story in his lifetime; that a decree of foreclosure was entered on September 30, 1940, and the lands sold to said Citizens Bank at the foreclosure sale which was confirmed on January 22, 1941; that while said sale was awaiting confirmation, on January 11,1941, Emma Story, at the direction of appellees,- A. R. Cheatham and Henry Stevens, executed and delivered the following instruments: (1) a deed of trust to secure $1,000 in notes to Cheatham and Stevens, (2) a deed conveying 1/7 of the royalty from the lands to the Citizens Bank, and (3) a mineral deed conveying % of the minerals in said lands to Cheatham and Stevens; that on January 22, 1941, the Citizens Bank executed its quitclaim deed to the 175-acre tract to Emma Story; that the bank accepted the 1/7 royalty deed from Emma Story and the sum of $170 cash in complete satisfaction of the mortgage debt; that the obligation evidenced by the $1,000 in notes and deed of trust was paid to Cheatham and Stevens by appellants, or some of them, by the proceeds of a portion of the royalty from said land.
It was further alleged: “That by the above procedure a trust resulted in favor of these plaintiffs as beneficiaries thereof, and the defendants, Henry Stevens and A. R. Cheatham having directed each step, had notice thereof, and the other defendants had knowledge thereof, or by the exercise of reasonable diligence could have had sufficient knowledge thereof to have determined the true ownership of the above lands.
“That Emma Story received no consideration whatever for the execution and delivery of said mineral deed to A. E. Cheatham and Henry Stevens, and had no title to convey, which was well known to the defendants, or by the exercise of reasonable diligence, the defendants conld have known she had no title except dower and homestead; that these plaintiffs received no consideration whatever for the execution and delivery of said mineral deed to Stevens & Cheatham, and derived no benefit whatever therefrom; that said deed is void and is a cloud upon plaintiff’s title, and should be cancelled, set aside and held for naught.”
The prayer of the complaint was that the legal title to the lands be divested out of Emma Story and vested in appellants, subject to the dower and homestead rights of the widow; that the mineral deed executed by Emma Story to Cheatham and Stevens together with other deeds subsequently executed be set aside as clouds upon appellants’ title; for an accounting and judgment for rentals and other sums received from any oil and gas lease covering said lands.
On September 20,1949, appellees, Henry Stevens and wife, filed an answer and “Separate Motion for Judgment upon the Pleadings.” Other appellees, except Eay Kelley and C. M. Lewis, subsequently adopted the pleadings filed by Henry Stevens and wife. The motion for judgment upon the pleadings asked that the cause be dismissed on the following grounds: “ (a). The confirmation proceedings in the foreclosure sale became Res Judicata as to the plaintiffs alleged cause of action herein; (b) The pleadings disclose that the plaintiffs alleged cause is barred by the statutes of limitations applicable in the premises; (c). The alleged cause of plaintiffs herein constitutes a collateral attack upon the foreclosure proceedings and particularly the confirmation of the sale, as reflected by the pleadings in this alleged cause of action.”
On September 28,1949, the court sustained appellees’ motion for judgment on the pleadings, dismissed plaintiffs’ complaint for want of equity, but allowed 30 days for additional pleadings. On November 29, 1949, appellants filed a motion to set aside the judgment dismissing their complaint which was denied on the same date. This appeal is from both the order dismissing appellants’ complaint for want of equity and the second order denying’ their motion to set aside the judgment dismissing their complaint.
The learned chancellor treated the motion for judgment on the pleadings as a demurrer which was sustained and the complaint of appellants dismissed. The only question, therefore, on appeal is whether the complaint stated a cause of action against the appellees. We have frequently held that pleadings under the code are to be liberally construed and every reasonable intendment is to be indulged on behalf of the pleader in determining whether a cause of action is stated. Geyer v. Western Union Telegraph Co., 192 Ark. 578, 93 S. W. 2d 660.
The gist of the complaint is that Emma Story, widow of John Story, deceased, under the facts alleged held the bare legal title to the 175-acre tract in controversy as trustee for appellants, and that the transactions alleged amounted to a redemption of the lands from the foreclosure sale for the benefit of appellants as owners of the equitable title. In Gaines v. Saunders, 50 Ark. 322, 7 S. W. 301, a widow acquired the legal title to her deceased husband’s property under facts somewhat similar to those alleged in the instant case and the court held that a trust resulted in favor of the heirs of the hus”-band. The court said: “When Mrs. 'Saunders acquired the title to the lands in controversy a trust resulted to the heirs'of John H. Saunders, deceased, and she held them in trust for the heirs subject to any lien, she may have, on account of money expended in paying off encumbrances, and to any.dower and homestead interest she may have in them, and to the payment of the debts against the estate of her intestate; and she continues to hold in that way, so far as the record shows, if the appellants are not entitled to protection as dona fide purchasers without notice.” See, also, West et al. v. Waddill, 33 Ark. 575.
In Krow & Neumann v. Bernard, 152 Ark. 99, 238 S. W. 19, the court held, Headnote (1): “Where land be longing to minor heirs was sold under a mortgage executed by their mother, from whom they inherited, a purchase of the land by their father within the period of redemption from the purchaser at the foreclosure sale was tantamount to a redemption by the father for the benefit of such minor heirs.”
It is not certain from the allegations in the complaint in the case at bar whether the equity of redemption under the mortgage expired upon confirmation of the sale or prior thereto. In the recent case of Jermany v. Hartsell, 214 Ark. 407, 216 S. W. 2d 381, we held that the mortgagor’s equity of redemption is not extinguished until confirmation where the foreclosure decree provides that title shall be foreclosed and barred “upon the sale of said lands . . . and confirmation thereof.”
As to the plea of limitations set up in the motion for judgment on the pleadings, the situation here is similar to that in Mortensen v. Ballard, 209 Ark. 1, 188 S. W. 2d 749, where we said: “It is possible that, under the facts pertaining to the situation here involved, appellant’s cause of action, if any he had, is barred by laches, staleness or limitation. But these facts do not appear from the complaint and are matters of defense which must be raised by answer rather than by demurrer. ” Moreover, two of the appellants are alleged to be minors and their cause of action could not be held to be barred under the Statute (Ark. Stats. 1947, § 37-226).
We cannot agree with appellee’s contention that it appears from the face of the pleadings that the instant suit is a collateral attack upon the foreclosure proceedings insofar as the appellees are concerned. While a development of the facts may sustain this conclusion, appellants assert the validity of the foreclosure proceedings and say that they are relying thereon to sustain their cause of action which did not arise until such proceedings had terminated. Nor do the pleadings on their face show that the foreclosure suit involved the same parties and controversy as involved here, so as to constitute a bar to the instant suit under the doctrine of res judicata. Hatch v. Scott, Adm’x, 210 Ark. 665, 197 S. W. 2d 559,
When the facts stated in the complaint are considered, together with all reasonable inferences to be deduced therefrom, we conclude that a cause of action was stated, and that the trial court erred in sustaining the motion for judgment on the pleadings. The decree is, therefore, reversed and the cause remanded with directions to overrule said motion and for such further proceedings as may be necessary in accordance with the principles of equity. | [
112,
109,
-16,
-20,
58,
-32,
42,
-102,
74,
33,
-91,
83,
-5,
68,
80,
9,
-17,
45,
85,
105,
-25,
-78,
7,
-93,
-46,
-13,
121,
-51,
-78,
93,
-28,
-41,
72,
48,
-62,
85,
-62,
-118,
-17,
92,
94,
19,
9,
100,
89,
80,
52,
123,
116,
75,
117,
-114,
-13,
45,
21,
106,
104,
44,
-21,
-67,
80,
56,
-86,
4,
77,
7,
1,
103,
-104,
1,
-54,
8,
-104,
49,
-120,
-24,
51,
-90,
6,
84,
3,
-97,
12,
38,
102,
48,
-51,
-17,
-44,
-104,
46,
-10,
-99,
-121,
-58,
104,
3,
33,
-65,
-107,
121,
64,
6,
-2,
-18,
-123,
92,
104,
7,
-49,
-42,
-127,
13,
-80,
-100,
-125,
-9,
-109,
34,
113,
-53,
-94,
93,
-58,
49,
51,
14,
-15
] |
Subsets and Splits
No saved queries yet
Save your SQL queries to embed, download, and access them later. Queries will appear here once saved.