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DAVID M. GLOVER, Judge
| Appellant Corderro Foster was convicted by a Jefferson County jury of two counts of aggravated robbery and sentenced to ten years in the Arkansas Department of Correction for each conviction, with the sentences to run consecutively. On appeal, Foster argues the trial court erred in denying his motions for directed verdict because there was insufficient evidence to corroborate the accomplice testimony. We affirm Foster’s convictions.
At trial, Detective Mike Sweeney of the Pine Bluff Police Department testified he responded to an aggravated-robbery call on January 12, 2015, at Mary Franklin’s residence and encountered the victims, eighty-one-year-old Will Wright and eighty-four-year-old Mary Franklin, who are siblings. After speaking to Wright and Franklin, Sweeney learned the victims had gone to Relyance Bank and then to Brookshire’s Grocery. Sweeney located Wright’s vehicle on Brookshire’s video-surveillance tapes and saw that a vehicle matching the description of the vehicle used in the robbery, a four-door brown Oldsmobile Intrigue, | immediately followed Wright’s vehicle when Wright left Brookshire’s parking lot; he further noted that the suspect vehicle had ax-rived in the Brookshire’s parking lot approximately nine minutes after Wright’s vehicle. On the surveillance video, Sweeney saw two African-American males enter the grocex-y store, with a third African-American male following a few minutes behind; about twenty minutes elapsed between Wright entering and leaving the store, with the three suspects leaving at the same time as Wright.
Sweeney made contact at the Civic Center Motel with the three individuals who appeared to be the three males seen at Brookshire’s—Corderro Foster, Justin Cartwright, and Clifton “Rico” Chambers; he also encountered a female at the motel. Sweeney testified that Ms. Franklin positively identified Justin Cartwright, but she did not make a positive identification of any other suspect. Sweeney stated he participated in an interview of Foster, who admitted he had been to Brookshire’s to use the change machine but denied knowing anything about an aggravated robbery.
On cross-examination, Sweeney testified that no physical evidence was recovered at the time the three suspects were arrested; to his knowledge, no one ever searched Foster’s or Cartwright’s homes; at no time did either Wright or Franklin identify Foster in their interviews; and there was never a positive identification of the vehicle.
Ann Sims, Foster’s mother, testified that the vehicle in the photograph circulated by the police belonged to her son and she had purchased the vehicle for him. Sims said two detectives came to her home and seax-ched the vehicle, but she was never told anything had been recovered from it.
[^Sergeant Carnell Williams of the Pine Bluff Police Department, supervisor of the ciime-scene unit, testified that he took photographs at Franklin’s house of Wright’s vehicle. A purse, several envelopes, and material with Franklin’s name on it were found in the trash can in the backyard of Franklin’s residence. Although fingei-prints were taken, none were positively identified.
Will Wright testified that on January 12, 2015, he picked Franklin up from her house, went to Relyance Bank and made a withdrawal in the drive-thru, and placed the envelope with the money in it in his shirt pocket. After leaving the bank, the two went to Bi-ookshire’s for Wright to pay his Entergy bill; Fx-anklin remained in the vehicle while Wright went into the store. Wright estimated he was in Brookshire’s twenty to thirty minutes. Wright was unaware of a vehicle following him as he returned to Franklin’s house; while they sat in the vehicle talking, a man appeared at Wright’s open window, placed a handgun in the window, and told Wright if he moved, he would blow his brains out. Wright said a second male arrived a few seconds later; while he was unable to get a good view of the individuals because he was concerned for his and his sister’s safety, he said they appeared to be African-American males in their twenties. Wright testified that one of the males took the bank envelope out of his pocket; the first suspect then went to Franklin’s side of the vehicle, threatened to blow her brains out, took her purse, and left. Wright did not see any other individuals other than the two men who approached the vehicle. Wright was unable to positively identify Foster’s vehicle, although he testified it bore similar characteristics to the car he had seen behind him in the driveway while the aggravated robbery was taking place. Wright was also unable to 14positively identify the suspects; although he testified Foster bore a resemblance to the person who robbed him, he could not say 100 percent that he was the person who had robbed him.
Justin Cartwright testified that on January 12, 2015, he was with Foster and Chambers; they went to Brookshire’s in Foster’s car; and he saw Wright in line at Brookshire’s with a bank envelope in his pocket, but he did not mention that fact to Foster or Chambers at the time. Cartwright said when they left, Foster was driving, but there was no discussion about following Wright out of the parking lot. Cartwright testified he asked Foster to borrow his ear, dropped Foster off, and he and Chambers robbed Wright. Cartwright admitted he had pled guilty to aggravated robbery in this case because he had committed the crime, but he told the jury Foster was not a participant and had nothing to do with the aggravated robbery.
Rico Chambers testified he had gone to Brookshire’s with Cartwright and Foster in Foster’s car; Cartwright and Foster went into Brookshire’s and he followed about five minutes later; Cartwright had seen Wright with an envelope in his hand inside the store; and when the three of them left the store, they discussed trying to get the money from Wright, so they followed him out of the parking lot. Chambers testified he stayed in the back seat of the car while Cartwright and Foster robbed Wright and Franklin; Cartwright and Foster both had guns; Foster was on one side of the vehicle and Cartwright was on the other; Cartwright got the money and Foster took the purse; Cartwright and Foster returned to the vehicle; and they drove off. Chambers said he had not been charged with this crime. On cross-examination, Chambers testified he knew before leaving Brookshire’s that Cartwright planned to rob Wright and Franklin because he had heard Cartwright and Foster talking about it. He | ^reiterated that Cartwright and Foster were the ones who robbed Wright and Franklin, and he had no part in the robbery.
Franklin testified similarly to her brother about going to the bank, Brookshire’s, and returning to her house. She said that while waiting on Wright at Brookshire’s, she noticed three young African-American men come out of the store and get into a tan-colored car. Her testimony regarding the robbery was the same as her brother’s. Franklin testified the suspects were two young black men in their twenties who left in a brown car. Although she was unable to positively identify Foster immediately after the aggravated robbery, at trial she identified Foster as one of the men who had robbed her.
Foster contends the trial court erred in denying his motions for directed verdict on the aggravated-robbery charges because there was insufficient corroboration of accomplice testimony in the case. We find this argument unpersuasive.
A person is criminally liable for the conduct of another person when he is the accomplice of another person in the commission of an offense. Ark. Code Ann. § 5-2-402 (Repl. 2013); Davis v. State, 2013 Ark. App. 658, 430 S.W.3d 190. An accomplice is a person who, with the purpose of promoting or facilitating the commission of an offense, solicits, advises, encourages, or coerces the other person to commit it; aids, agrees to aid, or attempts to aid the other person in planning or committing it; or having a legal duty to prevent the commission of the offense, fails to make proper effort to do so. Ark. Code Ann. § 5-2-403; Davis, supra.
|fiWe treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Snider v. State, 2010 Ark. App. 694, 378 S.W.3d 264. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, either direct or circumstantial; evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. On appeal, we view the evidence in the light most favorable to the State, considering only that evidence supporting the verdict. Id. A jury is free to believe all or part of a witness’s testimony, and we do not weigh the credibility of witnesses on appeal—that is a job for the finder of fact, not the appellate court. Boyd v. State, 2016 Ark. App. 407, 500 S.W.3d 772.
A person cannot be convicted of a felony based on the testimony of an accomplice unless that testimony is corroborated by other evidence tending to connect the defendant with the commission of the offense. Ark. Code Ann. § 16-89—111 (e)(1)(A) (Repl. 2005); Smith v. State, 2012 Ark. App. 534, 423 S.W.3d 624. The corroboration must be sufficient, standing alone, to establish the commission of the offense and to connect the defendant with it; the corroboration is insufficient if it merely shows that the offense was committed and the circumstances thereof. Smith, supra. Circumstantial evidence may be used to support accomplice testimony; though it need not be so substantial in and of itself to sustain a conviction, it must, independently of the accomplice’s testimony, tend in some degree to connect the defendant with the commission of the crime. Smith, supra. The test for corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect |7the accused with its commission. Smith, supra. The presence of an accused in proximity of a crime, opportunity, and association with a person involved in the crime are relevant facts in determining the connection of an accomplice with the crime. Smith, supra.
A person commits aggravated robbery if he commits robbery as defined in Arkansas Code Annotated section 5-12-102 and is armed with a deadly weapon, represents by word or conduct that he is armed with a deadly weapon, or inflicts or attempts to inflict death or serious physical injury upon another person. Ark. Code Ann. § 5-12-103 (Repl. 2013). A person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately after committing a felony or misdemeanor theft, the person employs or threatens to immediately employ physical force upon another person. Ark. Code Ann. § 5-12-102(a) (Repl. 2013).
Foster is incorrect in his assertion that there was not sufficient evidence presented to corroborate Chambers’s testimony. As stated above, the presence of an accused in proximity of a crime, opportunity, and association with a person involved in the crime are relevant facts in determining the connection of an accomplice with the crime. Smith, supra. Here, Foster told Detective Sweeney he was at Brookshire’s on the date in question. Surveillance tapes showed Foster, Cartwright, and Chambers in the store at the same time as Wright, leaving the store immediately after Wright, getting into a tan vehicle, and leaving the parking lot right behind Wright. Foster’s mother testified that the vehicle police were searching for in connection with the aggravated robberies belonged to Foster. And, at trial, Franklin identified | ^Foster as the person who committed the aggravated robberies with Cartwright. This testimony provides sufficient corroboration of Chambers’s testimony.
Affirmed.
Abramson and Murphy, JJ., agree. | [
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McHaney, J.
On October 18, 1938, appellee, Will-banks entered into a written contract with Alfred M. Bracy, a building contractor, whereby the latter was to construct a residence and garage for the former according to plans and specifications at an agreed price of $7,798. On the same day appellant issued its bond guaranteeing the performance of the contract, in which Bracy was principal, appellant was surety and Will-banks obligee, and in which the penalty of the bond was fixed at $7,798. Bracy entered upon the construction of the buildings and completed same, but failed to pay all labor and material bills for which liens were filed and established totaling $1,498, including the claim of ap-pellee, Stebbins & Roberts, Inc., in the sum of $127.20. Bracy died and Yan Manning was appointed administrator of his estate. Thereafter, Willbanks brought suit against Bracy’s administrator, appellant and all lien-claimants to determine his rights under the bond. Appellant answered denying liability under its bond on grounds hereinafter mentioned. Stebbins & Roberts, Inc., intervened claiming a lien by virtue of a contract with Willbanks for the sale of wallpaper. There is no dispute as to any other lien-claimant. Trial resulted in a judgment against appellant and the administrator for $1,489.80 which included the claim of Stebbins & Boberts, Inc., for $127.20, and a lien on the property was fixed, all claims bearing interest at 6 per cent, from December 4, 1939, less a credit of $391.75 retained by Willbanks and not paid to ■ Bracy, which was the net amount held by Willbanks after deducting- an allowance of $50 to complete certain minor repairs and adjustments found by the architect to be necessary in order to complete the construction contract. From this judgment there is an appeal and a cross-appeal by Willbanks as to the Stebbins & Boberts, Inc., claim.
For a reversal of this judgment appellant first says the court erred in allowing as a lien covered by its bond the claim of Stebbins & Boberts, Inc. The last material was furnished by the latter on January 11, 1939. On April 4, 1939, it gave notice to Willbanks that it would file its claim for a lien and on April 10, only six days after notice, it filed its affidavit for a lien. By § 8876, Pope’s Digest, the lien claimant is required to give 10 days ’ notice to the owner, and its cross-complaint was not filed within 90 days after furnishing the last material. It would appear, therefore, that the lien must fail, unless the claimant sold his material directly to the owner, in which case the notice is not necessary. Hess v. A. L. Ferguson Lbr. Co., 155 Ark. 240, 244 S. W. 5. The trial court found there was such a contract and sustained the lien. This finding depends on the evidence which is in dispute and we cannot say this finding is against the preponderance thereof.
But, appellant says that if such is the case, its bond does not cover “for the reason that the bond never had any relation to contracts of the owners to a third party. ’ ’ We cannot agree. The contract, plans and specifications provided for papering the house to the taste of the owner and the contractor made an allowance of $125 to cover the cost of these materials and it could make no possible difference to appellant whether Will-banks purchased the material or Bracy did. The court correctly allowed this claim as a lienable one against the property and as one covered by the bond.
It is next argued by appellant that its bond was discharged because the construction contract was altered in excess of ten per cent, of the contract price without the consent of the surety, in violation of such a provision in the bond. It is undisputed that the contract price was $7,798 and the revised contract price was $9,389.85. The contract between Bracy and Willbanks provided: “The general conditions of the contract, the specifications and drawings, together with this agreement, form the contract, and they are as fully a part of the contract as if hereto attached or herein repeated. ’ ’ Another provision is: “Contractor for the general construction will be required to furnish a surety bond equal to 200 per cent, of the contract price.”
Willbanks paid the premium on this bond and it is undisputed that the premium charged would have been no more, if the 200 per cent, provision had been complied with. We are of the opinion that appellant, by executing the bond for the faithful performance of the contract which provided that the plans and specifications were a part thereof, must be held to have executed a bond for 200 per cent, of the contract, or in other words that provision will be read into the bond, because the parties so contracted. In this respect, our decisions holding that in a statutory bond the provisions of the statute will be read into the bond although omitted therefrom are in point. Such is the general rule supported by many of the decided cases. It is thus stated in 8 Am. Jur., p. 723, § 38: “A bond that is executed in conjunction with a contract or other accompanying instrument must be read in the light of the terms thereof. ’ ’ See, also, 11 C. J. S., p. 423, § 43. Among our own cases on reading the statute- into the bond is Union Indemnity Co. v. Forgy & Hanson, 174 Ark. 1110, 298 S. W. 1032, where the late Chief Justice Hart, for the court, said: “Neither .do we think that the fact that the bond was not executed in a sum not less than double the sum total of the contract is fatal to it. The Union Indemnity Company was organized for the very purpose, among others, of becoming surety.on bonds of this sort, and was paid for so doing. It cannot escape the plain terms of its contract "by executing a bond for a less sum than that required by the statute. It is in the nature of a contract of insurance, and should be most strongly construed against the surety. U. S. Fidelity & Guaranty Co. v. Bank of Batesville, 87 Ark. 348, 112 S. W. 957; American Bonding Co. v. Morrow, 80 Ark. 49, 96 S. W. 613, 117 Am. St. 72; Title Guaranty & Surety Co. v. Bank of Fulton, 89 Ark. 471, 117 S. W. 537, 33 L. R. A. (N. S.) 676; and Equitable Surety Co. v. Bank of Hazen, 121 Ark. 422, 181 S. W. 279.”
Now, since the bond, so construed, must be held to be a bond for double the penalty named therein, or one for $15,596, there was no violation of the ten per cent, clause.
The final contention for reversal is that Willbanks violated the bond and thereby discharged appellant because he did not retain in his hands 10 per cent, of the contract price which it is said is required by § 4 of the bond. It provides: “Fourth. . . . That the obligee shall also retain that proportion, if any, which such contract specifies the obligee shall or may retain of the value of all work performed or materials furnished in the prosecution of such contract (not less, however, in any event, than ten per centum of such value), until the complete performance by the principal of all the terms, covenants and conditions of .said contract on the principal’s part to be performed.”
In order to determine whether there has been such a violation, we must read the construction contract, for the faithful performance of which the bond was given to secure. Articles 4 and 5 of said contract provide for progress payments and acceptance and final payment. Payments were to be made on the certificate of the architect. It is undisputed that Willbanks made payments only on the certificate of the architect in strict compliance with the construction contract. We have many times held the decision of the architect is binding on both parties to the contract. Boston Store v. Schleuter, 88 Ark. 213, 114 S. W. 242. In 17 C. J. S., § 498, p. 1025, the general rule is stated as follows: ‘ ‘ The decision or certificate (of the architect) when made final, is binding in its legal operation and effect on the owner, the contractor, and the other parties, if any, to the contract, including those guaranteeing its faithful performance.”
We, therefore, hold there was no violation of the retained percentage clause. The judgment will he affirmed both on appeal and the cross-appeal. | [
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Humphreys, J.
This is an appeal from a decree of divorce on the cross-complaint of appellee and the allowance of alimony of $10 per month for a period of five years and an attorney’s fee of $25 to appellant.
The suit was commenced by appellant in the chancery court of Jackson county against appellee on June 14, 1939, on the grounds of abandonment and habitual drunkenness, and for alimony based on the net rental income appellee was entitled to receive from two farms in Jackson county, Arkansas, in one of which he owned a life estate by inheritance from an .aunt, and the other in which he owned an undivided one-third interest by inheritance from appellee’s father.
Appellee filed an answer denying the alleged grounds of divorce and a cross-complaint alleging abandonment on the part of appellant.
These parties were married in 1924 and lived together “until 1933 in Jackson county at which time appel-lee lost his job, and being unable to get another, he took appellant from Newport to Little Eock to live temporarily with her sister with whom she has continued to live. Appellee remained in Newport and occasionally got some work to do, a part of the time with the WPA, but did not earn enough to rent a home and provide a substantial suppoi-t for appellant. At one time he earned as much as $60 a month, but this employment did not last long and appellant was not willing to give up the employment she had secured in Little Eock and return to Newport to live with appellee on the small amount he could earn.
Appellee came to Little Eock and visited appellant for a few days at intervals of about two or three weeks until 1935. During this period he contributed small amounts to appellant, perhaps as much as $100 altogether.
Appellant testified that as a general thing he was drunk and quarrelsome when he visited her, and appellee testified he was sober and did not quarrel with her on the occasion of his visits. This manner of living continued until some time in 1935, and then by mutual consent all relationship between them ceased.
At the time appellant brought her suit she was admittedly a resident and citizen of Pulaski county and should have instituted the suit in Pulaski county under § 4383 of Pope’s Digest which is as follows: “The proceedings shall be in the county where the complainant resides, and the process may be directed in the first instance to any county in the state where the defendant may then reside.”
Appellee, however, filed a cross-complaint and did not question the jurisdiction of the court on the complaint of appellant until the suit was in progress, so the court acquired jurisdiction of the parties and subject matter of the suit under the cross-complaint.
The testimony is conflicting as to whether appellant or appellee was to blame for the continued separation from and after 1935. The chancery court found that appellant was and we are unable to say his finding was contrary to a clear preponderance of the evidence. Having so found and having decreed a divorce to appellee, the matter of the allowance of attorney’s fee, and permanent alimony was a matter within his discretion, but the small amount allowed her attorney and the small amount allowed as alimony are insufficient in view of the fact that for many years she made appellant a good and faithful wife and endured many humiliations at his hands, and in view of the further fact that her earning-capacity is small and his income from rents will justify a larger allowance than the chancellor made, we are affirming the decree of divorce and reversing same as to the allowances and remanding the cause with directions to allow her an attorney’s fee of $50 and permanent alimony in the sum of $15 a month from January 1,1940, without any limitation as to time, together with the costs of this appeal. | [
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Humphreys, J.
On May 18, 1939, appellee filed a suit against appellants in the chancery court of Grant county upon a note and mortgage given to secure same in the sum of $900 executed by appellants to the Central Printing Company.
It was alleged in the complaint that appellant/ on January 19, 1939, executed and delivered to the Central Printing Company their promissory note of $900, with interest, payable in monthly installments of $75 each, and to secure said note made, executed and delivered to said Central Printing Company a mortgage on certain real estate in Grant county, Arkansas, particularly describing the property; that said note and mortgage were assigned to appellee by the printing company and that it became the owner and holder thereof, for value before maturity, and was an innocent purchaser, and asked for judgment on the note and the foreclosure of the mortgage given to secure the payment of the note.
Appellants filed an answer and cross-complaint, in substance, as follows: Denied the allegations of the complaint and further pleaded that the note and mortgage sued on were made, executed and delivered to ap-pellee as agent for the Central Printing Company; further alleged that the consideration for the note and mortgage was that said Central Printing Company would print and publish for Showers & Company, a company owned and controlled by said appellants, a legal publication to be known as “Lawyer’s Ready Reference Manual,” and that said manual should be placed on the market for $10 per volume; that a contract was entered into between Showers & Company and the Central Printing Company December 19, 1938, whereby the printing company agreed for a sum of $740.70 to print 500 volumes of said manual, and said printing company was to complete the printing of said manual within 30 days from date of contract. One hundred dollars was paid on execution of the contract and balance when the job was completed and delivered; that appellants were induced through solicitations and representations of ap-pellee to deliver to the printing company the note and mortgage sued on herein and pay over the proceeds of the loan to the printing company, long* before the delivery of the books; that the printing company failed to live up to its contract, never delivering the books to appellants, thus breaching its contract and the consideration for the note and mortgage failed. It was further alleged that the appellee as agent for printing company, negotiated the loan, inspected the premises of appellants, passed on the abstract and knew what the consideration of same was for, and further stated to appellants that it was not looking to them for payment, but was looking to the printing company for payment; that appellee is not and was not a purchaser of said note before maturity and is not an innocent purchaser; that said assignment, if given, was wholly fictitious and fraudulent; that appellee knew when it turned over the money to printing company that the books contracted for by appellants had not been delivered, and had full knowledge that the consideration had failed;'that appellants have been damaged by reason of the breach of the contract in sum of $5,000, and asked that the printing company be made a party to the action, for damages in said sum and that the mortgage be canceled and set aside.
Thereafter, the Central Printing Company was served with summons and appeared specially and filed a motion to quash same, which motion was granted and the printing company was no longer treated as a party in the case.
An amendment was filed to the complaint to the effect that J. B. Longas obtained a mortgage on the same real estate from appellants on the 19th day of August, 1938, which was placed of record on the 26th day of January, 1939, subsequent to the date the mortgage sought to be foreclosed was filed for record in Grant county, Arkansas, and that the note and mortgage sought to be foreclosed were assigned to appellee in due course of business, before maturity and with no notice or knowledge of the mortgage which was executed by appellants to J. C. Longas. The prayer of the complaint was that J. C. Longas be made a party defendant and that his mortgage be held junior and subject to any and all rights of appellee.
Proper service by warning order was had upon J. C. Longas and he did not appear in the case, but made default.
The cause was submitted to the court upon the pleadings and testimony introduced by the respective parties resulting’ in a decree dismissing appellants’ cross-complaint against appellee and a judgment for appellee for the amount due on the note and a foreclosure of the mortgage lieu on the real estate and an order of sale thereof to satisfy the debt.
The court also found that appellee’s mortgage lien was prior and paramount to the mortgage lien of Jack Longas, from which decree appellants have duly prosecuted an appeal to this court.
The note, mortgage and the written assignment thereof by the Central Printing Company to appellee were introduced in evidence. The written contract between the Central Printing Company and Showers & Company was also introduced.
This contract was dated December 19,1938, and provided, in substance, that the Central Printing Company should print in book form five hundred copies of “Lawyer’s Ready Reference Manual” for $740.70, $100 cash which was paid and balance to be paid when job was completed. The record reflects that a short time before the “manuals” were ready for delivery, George Rose, a member of the Central Printing Company, notified Showers & Company it would expect the balance in cash when the books were ready for delivery; that in order to procure the cash H. C. Showers and his wife were willing to mortgage their home and made application to appellee for a loan with which to pay the Central Printing Company, but appellee refused to lend the money to Showers & Company and take a mortgage on land. Appellant, H. C. Showers, then requested Rose to contact appellee and try to get a loan for $900 so that he could pay the Central Printing Company and have $200 or more left for his own use; that Rose succeeded in getting appellee to agree to loan the amount if the Central Printing Company would execute a note to it for $900 and if appellants would execute a note in like amount and secure same by a mortgag'e on said lands to the Central Printing Company and attach same as collateral to the $900 note which the Central Printing Company should execute to it with the right to first inspect the lands and examine the abstract of title thereto. After it inspected the land and approved the abstract of title appellants came to appellee’s bank to execute the note and mortgage. O. D. Hadfield, an officer of the ap-pellee bank, drew up the note and mortgage and they were executed and attached to the $900 note of the Central Printing Company as collateral after which appellee bank passed $900 to the credit of the Central Printing Company. George Rose, acting for the Central Printing Company, later paid appellants $200 out of the credit account and retained the balance as a payment on the contract for printing the “manual.” Several days thereafter appellee purchased the note and mortgage and took a written assignment thereof and filed same for record some time in May.
Appellants testified that H. G. Showers told O. D. Hadfield prior to the time they executed the. note and mortgage that Showers & Company were borrowing money with which to pay the Central Printing Company and that they were executing the note and mortgage to secure same on the assurance of Mr. Rose, a member of the printing company, that he had the books ready to deliver to Showers & Company, and would deliver them immediately and that Hadfield’s reply was that the Central Printing Company and Rose were reliable and would do what they had agreed to do and he would guarantee that they did; that they would not have executed the note and mortgage had it not been for such assurances and guarantee on the part of O. D. Hadfield.
O. D. Hadfield testified that he had no such conversation with them and never gave them any assurances or guaranteed that Rose or the Central Printing Company would comply with the contract they had with it. O. D. Hadfield testified positively that he knew nothing about the provisions of the contract between the ■ Central Printing Company and Showers & Company and that he had no knowledge or information that appellants would claim that the Central Printing Company had breached its contract with Showers & Company relative to the printing of the “manuals.” Appellants themselves • testified that they never informed O. D. Had-field after the execution of the note and mortgage or at the time they were executed that there had been any breach of the contract by the Central Printing Company for failure to print the “manual” in accordance with the terms thereof. O. D. Hadfield testified that appellee purchased the note and mortgage for value before maturity without any knowledge whatever that appellants were claiming that the Central Printing Company had breached its contract with Showers & Company.
The trial court found that appellee was an innocent purchaser of the note and mortgage and we are- unable to say that such finding was contrary to a preponderance of the evidence.
The testimony introduced in the case was quite voluminous and most of it related to the questions of whether or not the Central Printing Company failed to print the “manual” in accordance with the terms of the contract between it and Showers & Company. We have read this evidence carefully and have concluded that a preponderance thereof shows that there was no breach of the contract.
It would extend this opinion to an unusual length to set out all the evidence bearing upon this issue and no useful purpose could be served by doing so. Suffice it to say, as stated above, that the preponderance or weight thereof shows that the contract was not breached for failure to print the “manual” in accordance with the terms of the contract.
No error appearing, the decree in all things is affirmed. | [
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Humphreys, J.
This suit was instituted in the chancery court of the eastern district of 'Carroll County by appellees against appellant to set aside a deed of date January 5, 1933, executed by Mrs. E. W. Mooney to appellant, her husband, to about twenty or twenty-five acres of land in said county upon which they resided, on the ground that the same was procured through the undue influence of appellant over his wife, Mrs. E. W. Mooney, at a time when she was not mentally competent to transact business.
Appellant filed an answer, admitting the execution of the deed, but denying that he procured same through undue influence over his wife at a time when she was incompetent to transact business.
The cause was submitted to the court upon the pleadings and testimony, resulting in a decree cancelling the deed on the grounds alleged in the complaint, from which is this appeal.
About twenty-six years ago, Mr. Mooney married a widow, the mother of two daughters. One of the daughters died, and the other married Mr. Alnett, who joined her in this suit. Mrs. Mooney had been blind for about twelve years when she died, but she had learned to keep house notwithstanding her affliction. Mr. Mooney was kind and attentive to her, and they lived happily together during their entire married life. Appellees resided with them a part of the time. They all lived in Larned, Kansas, until they moved to Arkansas in the spring of 1926. .Mrs. Mooney received a small estate from her first husband, from which she realized $250 in cash. In 1924 or 1925 Mr. Mooney inherited $2,500 from a brother. Mr. Mooney purchased tfie tract of land in question after coming to Arkansas, and had the deed made to Mrs. Mooney, so that if he should die she would not be disturbed. They were afterwards advised that he would lose the home in case Mrs. Mooney died first, and it was agreed between them that she would convey the home to him, but she neglected to do so until both became ill with light cases of “flu” in January, 1932. On January 5, 1932, while both were in bed sick, appellant sent for a justice of the peace, who prepared a deed conveying the land in question, upon which they had been and were residing as their home. Mrs. Mooney, being blind, signed same by mark, which signature was witnessed by two men who came in about the time she signed same. One of them thought she was not able to transact business and the other expressed no opinion about it. When appellant sent for the justice of the peace, Mrs. Mooney got the old deeds out of the trunk for him to use as a guide in drafting the new deed when he should arrive. After the execution of the deed, the justice of the peace handed it to Mr. Mooney, who later gave it to Mrs. Mooney to put in the trunk, and it remained where she put it until after her death some fourteen months 'later. Appellant then recorded it.
The justice of the peace, J. W. Ash, testified, in substance, that both Mr. and Mrs. Mooney were sick in bed when he prepared and she signed the deed; that she sat on the edge of the bed when she signed by mark and acknowledged same; that he did not fill out the blank relative to dower and homestead and certify to that part of it because Mr. Mooney was present; that the only persons present were Mr. Mooney, Mrs. Stewart and him self; that he' would not have had her sign the deed if he had thought she was unable to transact business; that he saw nothing out of the ordinary except that both were sick in bed.
Mrs. Stewart testified that she was a neighbor taking care of Mr. and Mrs. Mooney. In her first statement, she said she was in and out when the deed was being prepared and signed, but, in her rebuttal testimony, she said that she was present all the time; that the justice of the peace did not ask Mrs. Mooney if she executed the deed of her own free will and accord; that Dr. W. L. Watson told her Mrs. Mooney’s temperature was running 104% and that she did not think with this much fever; she was competent to transact business; that she did not regard Mrs. Mooney either crazy or delirious; that the night before the deed was signed she was in the adjoining room and heard Mr. Mooney ask Mrs. Mooney to make a deed to him and heard her say she did not want to do so.
Dr. W. L. Watson testified that he was called to see Mrs. Mooney in January, 1932, and found both her and her husband in bed with light attacks of “flu”; that he did not remember taking their temperature; that they responded to his treatment, and recovered in a short time; that he did not tell any one that Mrs. Mooney’s temperature was running 104½ degrees; that he found nothing else the matter with them.
Mr. Mooney testified, relative to the sick spell of himself and wife, that they were in bed a short time with light attacks of. “flu” from which both soon recovered; that, while they were sick, Mrs. Mooney executed a deed to him for the twenty or twenty-five acre home he had bought and put in her name of her own free will and accord, without any undue influence by him, and for fear she might die. He denied having any conversation with her about it the night before it was executed.
The record reflects that during their illness a number of neighbors called and some of them were of the opinion that, owing to Mrs. Mooney’s illness, she was not competent to transact business, and others thought she was. Also that Mrs. Mooney wrote for appellees to come to them on account of their illness, which they did. They remained with them for some fourteen or fifteen months or until a short time after the death of Mrs. Mooney. Also that they recovered and that Mrs. Mooney thereafter was sound in mind and body until she died.
Mrs. Elizabeth Alnett testified that, after her mother got well, she claimed she had never made a deed when she asked her whether she had done so.
In our opinion, this testimony fails to show that Mrs. Mooney was incompetent to transact business when she executed the deed, or that she was- unduly influenced to do so by appellant. It was the just and equitable thing for her to do as he had paid for the property with his own inheritance, and had been devoted and kind to her during her long affliction. Further, the execution of the deed was but the fulfillment of Mrs. Mooney’s avowed purpose after she found out that in case of her .death, as the title stood, her husband would lose the home.
On account of the error indicated, the decree is reversed, and the cause is remanded with directions to reinstate the deed and dismiss the complaint for -want of equity. * | [
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McHaNey, J.
Appellant was charged by information with murder in the first degree for the killing of his wife on December 9,1937, by shooting her with a pistol. Trial to a jury resulted in a verdict of guilty of manslaughter and his punishment fixed at seven years imprisonment in the State penitentiary, on which .judgment was accordingly entered.
Por a reversal of the judgment, appellant argues three general grounds, as follows: (1) that the court erred in refusing to give six requested instructions; (2) erred in a remark made when a certain negro witness was called to testify for appellant; and (3) erred in permitting a news photographer to take court room pictures, including appellant, in the jury’s presence.
(1) Instructions one, two and three^ requested by appellant and refused by the court relate to his responsibility for the crime charged, if, at the time, he was temporarily insane, as set out in request No. one, and if bereft of reason on account of drunkenness, as set out in No. two, and a combination of both as set out in No. three. Instruction No. one would have told the jury that if they believed beyond a reasonable doubt that at the time he shot and killed the deceased “he was temporarily so deranged on one or more of his mental or moral faculties that it actually rendered him incapable distin guishing between right and wrong with respect to the act he was committing, . '. . then yon will acqnit him on the ground of temporary insanity.” No. two would have told the jury that if they should find, or have a reasonable doubt about it, that appellant was intoxicated at the time; that his mind “was bereft of reason by the recent use of intoxicating liquors” so that, at the time, his reason was destroyed and that he had no knowledge of what he was doing and did not know right from wrong; and that he killed deceased while in such mental condition, he should be acquitted. As stated above, number three was an attempted combination of one and two. We think no error was committed in refusing said requested instructions. It may be stated that there is no evidence in this record of any temporary insanity of appellant except such as may have been caused by intoxication. So, requested instruction number one was abstract. As to number two, it may be said in this connection, the court read to the jury as instruction 1A, given on the court’s own motion, § 2931 of Pope’s Digest, as follows: “Drunkenness shall not be an excuse of any crime or misdemean- or, unless such drunkenness be occasioned by the fraud, contrivance or force of some other person, for the purpose of causing the perpetration of an offense, in which case the person so causing said drunkenness, for such evil purpose, shall be considered principal, and suffer the same punishment as would have been inflicted on the person committing the offense if he had been possessed of sound reason and discretion.”
We assume that the fact of appellant’s intoxication or drunkenness on the occasion of this killing was established by the evidence, as also the fact that he had been drinking more or less heavily for a number of years. The fact remains, however, and is undisputed, that he voluntarily got drunk on this occasion and purchased the liquor himself “which produced his temporary besotted and unconscious condition,” as said in Bennett v. State, 161 Ark. 496, 257 S. W. 372, where the court used this language: “The testimony of the appellant shows that he ‘voluntarily drank the dope’ which produced his tern- porary besotted, and unconscious condition. No effort is made to prove that the appellant, at the time of the killing, was afflicted with any disease of the mind, either permanent, temporary, or periodical, such as delirium tremens, mania a potu, or dipsomania. Gasat v. State, 40 Ark. 511. It appears that the killing was the result of reckless, wanton, and careless driving of his automobile, while the appellant was unconscious, as the result of beastly intoxication caused by his own voluntary drinking. Yoluntary drunkenness was no excuse for the crime. The court did not err in refusing appellant’s prayer for instruction. See Bowen v. State, 100 Ark. 232, 140 S. W. 28. ”
Again, in the later case of Weakley v. State, 168 Ark. 1087, 273 S. W. 374, this language is used: “Mr. Bishop says: ‘A man may be guilty of murder without intending to take life, or of manslaughter without so intending, or he may purposely take life without committing any crime. The intention to drink may fully supply the place of malice aforethought so that, if one voluntarily becomes too drunk to know what he is about and then with a deadly weapon kills another, he does murder the same as if he were sober. In other words, the mere fact of drunkenness will not reduce to manslaughter a homicide which would other-wise be murder.’ Bishop’s New Criminal Law, p. 296, § 401. This is the doctrine applied by us in Byrd v. State, 76 Ark. 286, 88 S. W. 974, where we said: ‘But no specific intent to kill is necessary to constitute the crime of murder in the second degree under our statute, and the law is that the intention to drink may fully supply the place of malice aforethought, so that if one voluntarily becomes too drunk to know what he is about and then without provocation assaults and 'beats another to death, he does murder the same as if he was sober’.” Such is the situation here. There is no proof that appellant was mentally diseased, either temporarily or permanently, and mere voluntary drunkenness is no defense.
Moreover, appellant was not convicted of murder, but of manslaughter which does not require any specific intent to kill, and even though it could he said to be error to refuse said instructions, it would not be prejudicial, and would not, therefore, be reversible.
Requested instructions four, five and six would have submitted to the jury the question of an accidental killing. As we view the record there is no substantial evidence that the killing was accidental, — that the gun was-fired accidentally in a scuffle over it between him and his-wife. We do not review the evidence, as it could serve-no useful purpose. There being no evidence to support said instructions, the court correctly refused to give them.
(2) As to this assignment, we have some doubt. When a witness, George Jackson, Jr., was called to testify, counsel for appellant asked him if he had been sworn, to which he replied that he had not. Whereupon the court interjected this remark: “It doesn’t make much difference whether he is sworn or not. However, let him be sworn.” An examination of the testimony given by this witness reveals the fact that it relates only to appellant’s drunken condition on the evening shortly prior to the tragedy and to his drunkenness on previous, occasions, a fact which we have assumed to be established by the evidence, and the apparent reflection on this-witness by the court’s remark, no doubt made facetiously, because the witness 'was at that time serving a sentence on the county farm for some misdemeanor and had served another previously, and the remark, although improper, could not have been prejudicial to appellant.
(3) We think the matter of permitting a news photographer to take a picture or pictures of the court room and those in it rested in the sound discretion of the trial court. Appellant’s counsel objected to the taking of a picture of the court room or of appellant. Whereupon the court said: “I have already told him he could take the picture, but no one is required to have his or her picture taken, and the taking of the picture has nothing whatever to do with the trial,” and the objection was overruled, with exceptions. Under the ruling of the court, appellant was not required to be in the picture. It was not shown to the jury, and, if published in the newspapers, it did not reach the jury because the papers were excluded from them.
We find no error, and the judgment is accordingly affirmed. | [
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McHaney, J.
On January 6, 1929, ft. M. Jackson died testate at Hardy, Sharp county, Arkansas. Appellant is a daughter of said it. M. Jackson and appellees are two of his sons, his widow and a grandson, all beneficiaries or legatees under his will.
The will is lengthy and somewhat prolix. Paragraph 2 thereof “bequeaths” to each of his children and his grandson and their bodily heirs “all of the personal and real estate or the income thereof except the legacy hereinafter given and bequeathed to my wife, to hold said property in trust for my said wife’s benefit, and for each of-my children and their benefit — ,” including his grandson. Appellee, R. A. Jackson, was appointed guardian of the grandson, whose father was dead, to serve as such guardian without bond until the ward became 21 years old, in paragraph 3. The 4th paragraph gave to his wife all his household furniture and the mansion house in Hardy, “for her own use and behalf during her natural life, and out of my said e.stat-e to be paid by my executors hereinafter named to my said wife the sum of one hundred dollars per calendar month. This bequeath is in lieu of dower.” In paragraph 5 he appointed appellee, R. A. Jackson, sole executor to serve for a period of ten years without bond, and at the end of that period the heirs were to select one of their number to so serve. In this paragraph he stated: “This does not disqualify any one of my children from being selected to serve as executor for a like period of years as it is my intention to hold and keep my estate intact for the benefit of my wife, children and bodily heirs — . ’ ’ He further said in this paragraph: “And for looking after the affairs of my estate, paying the taxes and the sum of one hundred dollars per calendar month to my wife and keeping my estate intact it is my will and I direct that the executor be paid two per cent, of the amount paid out by them for their services, which I deem sufficient. That my intentions may be fully understood in this my will, I mean and intend that my real estate be held from sale and that the proceeds be used by my said children in paying my just debts and the gift to my wife as mentioned, that at the death of either of my said heirs that the real estate descend to its heirs according to its or their several interests, and that the title to my real estate descend as aforesaid, and that the proceeds be used for their several interests and that said lands be not sold or conveyed to any one thereof or any other party. In other words, I mean and intend to create an estate tail so far as the laws of Arkansas permit. And that the executor -mentioned herein or any other child who may take his place as mentioned as aforesaid he and they are required to make an annual inventory of the proceeds received from the rents and profits of said lands and the actual necessary expenses of the payment of taxes and the amount to be paid monthly to my wife and file the same amount my real estate papers so as all concerned me at any time may see and investigate the same. That my real estate be not sold as aforesaid.”
In paragraph 9 he again states that it is his intention that his personal property he not divided, hut that it he held in trust for his wife for the purpose of carrying out paragraph 4; that his stock in the R. M. Jackson Company, a mercantile corporation, he canceled and reissued to her for her benefit and at her death for the benefit of their children; and he then said: “It is my intention that he is hereby selected to carry out the above trust and is to serve without bond.
“And to clear up the conflict between this paragraph and paragraph two it is my last will and I hereby give to my sons, Robert A. Jackson and Floyd J. Jackson, and to my daughter, Pauline. Jackson Hastings, and to my grandson, Robert Taylor Jackson, being my heirs at law, the sum of one dollar each to be paid out of my personal property and all of the rest of my personal property after all my just debts are paid is to be handled as stated in this paragraph and of course at the death of my wife, Mattie Jackson, then the personal property is to be divided equally between the above stated heirs. Nothing in this paragraph is to be construed as conflicting with my intention of creating the estate tail, as stipulated in this my last will, that is as far as the laws of Arkansas permit. It is my intention that there be no more probation of my affairs than is necessary to establish this will and the guardianship and executorship created thereunder. ’ ’
Appellee R. A. Jackson undertook the burdens imposed by this will. He was appointed executor by the probate court and guardian of the infant, Robert Taylor Jackson, and proceeded to administer the affairs of said estate, as he thought, in strict compliance with the provi sions of said will. He filed no inventory, nor did he make and file any annual statements or settlements with the probate court, but did keep the accounts, operated the properties, keeping them intact, paid the taxes, paid the heirs and legatees certain dividends, and kept his accounts, books and records with the other papers of said estate, as he thoug’ht the will directed. Appellant became dissatisfied with his management and sought to require him to make bond and to make a report of his stewardship. Their relations became unfriendly and a citation was issued against him to show cause. He and the other appellees thereupon brought this suit in the chancery court to construe the will and to determine his status under it. The matter progressed slowly, but finally, by agreement, the suit became one for an accounting, and by consent of all parties a master, the late Dud Bassett, was appointed to and did state an account. He made a report and supplemental report to which- both parties filed numerous exceptions and asked for special findings, but in neither did the master find or report any willful or corrupt wrong on the part of R. A. Jackson. On March 8, 1940, the court rendered its final decree, in which all exceptions and all requests for special findings of all the parties were overruled and denied, except that the court found that the widow, Mattie Jackson, had been, overpaid in her monthly allowance of $100 under paragraph 4 of the will, because the court was of the opinion that the estate should not pay the cost of necessary improvements on the homestead and the taxes, which amounts had theretofore been paid by the estate, and which amounts were charged back to her to be deducted from her monthly allowance at the rate of $50 per -month. A decree to this effect was accordingly entered. There is here an appeal and a cross-appeal by appellees.
Disposing of the cross-appeal first, we are of the opinion that the court erred in the. construction of the will to the extent of charging the widow with necessary improvements and the taxes on the homestead, and, of course, in requiring her to pay same in a sum in excess of $1,000 from the monthly allowance--given her under the will, at the rate of $50 per month. We think it certain that the testator’s first and foremost thought was to provide a home for his elderly wife and to provide her with sufficient, means to live in comfort and without financial embarrassment the remainder of her life. To this end he impounded all of his estate, both real and personal, provided same should not be sold but should be kept intact, and operated by his son, R. A. Jackson, in whom he had implicit trust and confidence. For instance, in paragraph two, he conveyed all his estate to his children and grandson, naming them, and the income therefrom, “except the legacy hereinafter given to my wife, to hold said property in trust for my said wife’s benefit, and for each of my children and their benefit.” And in paragraph five, he fixed the compensation for his executor “for looking after the affairs of my estate, paying the taxes and the sum of one hundred dollars per calendar month to my wife and keeping my estate intact.” At the close of said paragraph he directed his executor “to make an annual inventory of the proceeds received from the rents and profits of said lands and the actual necessary expenses of the payment of taxes and the amount to be paid monthly to my wife and file same, etc. ’ ’ When the will is considered as a whole, we think the conclusion is inescapable that it was the testator’s intention to give his wife $100 per month net, and that she should not be charged with the cost Qf necessary improvements to the homestead or the taxes thereon, as to do so would deprive her of a portion of the $100 per month which the testator was so solicitous that she have, as evidenced by its frequent repetition in the will. The provision made for her in paragraph four as to the mansion house is not the ordinary life estate where the life tenant is chargeable with taxes and improvements. It was given to her for life, it is true, but it was coupled with a legacy of $100 per month and other provisions for the executor to pay the taxes and other necessary expenses on the whole estate, all of which, including the homestead, should be held intact for the lifetime of the widow. The heirs or other legatees were not to share in any net income until all expenses and taxes and the $100 per month to her were paid.
On the direct appeal, appellant makes three contentions: 1, that the reqniréments of statutes relating to administration and guardianship cannot be abrogated by will; 2, that the requirement as to bond cannot be nullified by will, as the court has the discretion to require bond although the will otherwise provides; and 3, a trustee is bound to make and a court of equity is bound to require regular accounting. These propositions of law are not disputed by appellees, and that is exactly what the trial court required, that is, it required an accounting to be made, appointed a master, an accountant, to state the account, appointed, with the consent of all parties, a new trustee and required him to give bond for the faithful performance of his trust. Both the master and the court found that appellee, R. A. Jackson, had faithfully performed the trust imposed upon him by his father. True he did not file any accounting in the probate court, but the will very definitely did not require him to do so. Mismanagement of the estate as to the liquidation of the R. M. Jackson Company is argued, but no corrupt misappropriation of funds is charged or proven. It is suggested that R. A. Jackson took an undue advantage of the others when he purchased from them the undertaking part of the business for which he paid them $100 each and later sold at a substantial profit to himself. But appellant is the only one complaining and she voluntarily sold her share with full knowledge of what she was doing and she was under no disability at the time.
We think it unnecessary to discuss the matters argued in detail further. We are of the opinion that the testator intended, by what he said in his will, that his son should take charge of the trust estate, consisting of all his estate, and operate same as a trustee without the necessity of accounting therefor to the probate court, but only to the interested parties. He so provided at the end of paragraph nine of his will in this language: “It is my intention that there be no more probation of my affairs than is necessary to establish this will and the guardianship and executorship created thereunder.”
This is an estate of substantial value, at this time perhaps $50,000. It has been kept intact, except for the necessary liquidation of the corporation. It has weathered a great financial depression, paid the taxes and other expenses, paid the widow her legacy, paid substantial dividends to the other legatees or devisees, and has substantially increased the personal property holdings. We have failed to find in the evidence any substantial evidence of fraud or corruption on the part of the executor-trustee who has now been replaced by another satisfactory to all parties, and we think the decree of the court is correct and should be affirmed, except as hereinabove stated. In that respect it is modified and as modified is affirmed.
It is so ordered.
Griffin Smith, C. J., dissents.
The Chief Justice thinks that, in view of the voluminous record, involving hundreds of typed pages relating to transactions covering a period of more than ten years, neither this court nor the chancellor is able to determine the true status, and for this reason the cause should be remanded with directions that the master be required to employ an auditor to state an account. | [
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Mehaffy, J.
The appellee filed his complaint against the appellant in the Jefferson Chancery Court, asking for a divorce on the ground that his wife’s conduct toward him rendered his condition intolerable.
The appellant answered, alleging that a former suit between the same parties and involving the same subject matter had been tried in the Jefferson Chancery Court, decree rendered against C. Y. Watts, and an appeal taken by him to the Supreme Court, where said appeal was 'dismissed for non-compliance with Buie 9. Appellant alleged that the judgment in the former suit was a 'bar to the present suit. She also asked for attorney’s fee, court cost, and alimony.
After the evidence was all in and argument of counsel completed, the court took the matter under advisement, and thereafter the appellee filed a motion in open court, asking permission to take a nonsuit, which was granted by the court..
The following is the decree:
“Now on this day is presented the (motion filed herein 'by the defendant, and this cause is heard upon the motion of the defendant and the response thereto of the plaintiff, and upon the statement of facts therein set forth, and the court finds that on March 9, 1928, the case came on to be heard, all testimony introduced by both sides, argument by counsel for both sides completed, and, after the argument by counsel, the court stated that there was a proposition of laAV that he wanted to look up, and the following entry was made on the court’s private memoranda book: ‘The case heard and the court takes the case under advisement.’ On March 14, 1928, the notation on the court’s private memoranda book reads as follows: “it. W. Wilson, attorney for plaintiff, comes into open court and asks to take a nonsuit, and the court made the following notation on his private memoranda book: ‘Nonsuit taken by plaintiff.’
“That on the complaint appears the following notation: ‘Dismissed or nonsuited by plaintiff the 14th day of March, 1928. B. W. Wilson, attorney. ’ That no record was made by the judge on the chancery court docket and no order was signed or placed on the chancery record, and the court finds from the foregoing facts that the matter of permitting plaintiff to take a nonsuit is in the discretion of the court. It is therefore by the court considered, ordered and adjudged that the motion herein filed by the defendant be and the same is hereby overruled and dismissed. It is further ordered and adjudged that the plaintiff herein be and he is hereby entitled to a nonsuit.”
The appellant prosecutes the appeal to this court to reverse the decree of the chancellor, and she states: “This appeal involves the question of the right of the chancellor to grant a nonsuit in this ¡case after all the evidence in this case had been heard, the argument of counsel on both sides concluded, and the same submitted to the chancellor.”
The only question here, as stated by appellant, is whether the chancellor had a right to grant a nonsuit after all the evidence in the case had been taken, after the argument of counsel on both sides was concluded, and the case submitted to the chancellor.
While the plaintiff, after the case was finally submitted, had no absolute right to take a nonsuit or dismiss his action, it was in the discretion of the court to permit the plaintiff to recall the submission and dismiss without prejudice.
‘‘Where a case has been finally submitted, either to the chancellor or to the court sitting as a jury, but no judgment has been rendered, it is within the discretion of the court to permit the plaintiff to take a nonsuit, and, unless it appears that the court has abused its discretion, this court will not reverse.” St. L. S. W. Ry. Co. v. White Sewing Machine Co., 69 Ark. 431, 64 S. W. 96, 9 R. C. L. 196, 21 C. J. 196; American Zylanite Co. v. Celluloid Manufacturing Co., 33 Fed. 809.
It is the contention of the appellant that the appel-lee dismissed his complaint in the chancery court in vacation, or dismissed it by writing on the complaint in the clerk’s office that plaintiff took a nonsuit. However, the decree of the court shows conclusively that the nonsuit was taken in open court by permission of the court.
“The court treated the agreement to submit the case as the final submission; and if this be right, still it was in the sound discretion of the court to permit a non-suit after final submission, and the court ought to do so when it is in the interest of justice and to enable the parties to obtain a fair trial, which cannot be obtained on the record, as it then stands. * * * It was an arbitrary exercise of discretion not to permit either thait the foundation be laid in that suit for the admission of the transcript or that a nonsuit he taken in order that the record in a. future suit might fairly present the rights of the parties.” Carpenter v. Dressler, 76 Ark. 400, 89 S. W. 89.
There is nothing- in the record in this case that shows the court abused its discretion. The testimony that was taken is not in the record; there is no way in which we can know the condition of the record at the time the nonsuit was taken; the record here simply shows that the testimony had been taken and the case had been argued by counsel on both sides and submitted to the court. After this was done, the plaintiff, in open court, asked permission to take a nonsuit, and the court granted the request. It was in his discretion to permit the nonsuit, and his ruling -will not be disturbed here, in the absence of a showing that the court abused its discretion. Ry. Co., 80 Iowa 314, 45 N. W. 545; Mullen v. Peck, 57 Iowa 430, 10 N. W. 829; Oppenheimer v. Elmore, 109 Iowa 196, 80 N. W. 307; Gassman v. Jarvis, 94 Fed. 603.
“Here, notwithstanding the court had indicated to the counsel for the plaintiff that the court did not think the proof sufficient to justify a recovery, counsel for plaintiff still had the right to ask permission to argue his client’s cause before the court; and there is nothing in the record to show that the court, if asked, would have denied him this right and privilege. If counsel had availed himself of this right and privilege, he might have been able to convince the court that its view of the testimony before hearing the argument of counsel was erroneous, and thus induced the court to find in favor of his client. Instead of taking this course, counsel for plaintiff elected to take a nonsuit, which he had the right to do. In cases at law, under a similar statute, it is held that a case is not finally submitted to the jury when the last word of a charge is read, and not until the jury are directed to retire and to enter upon a consideration of their verdict.” Mutual Benefit Health & Accident Assn. v. Tilley, 174 Ark. 932, 298 S. W. 215. See Bean v. Harris, 46 Iowa 118; Morrisey v. Chicago, etc.
The plaintiff, as we have said, has no absolute right to take a nonsuit after the cause has been finally submitted. But it is within the discretion of the court to permit plaintiff to withdraw the. submission and take a nonsuit, just as was done in this case. Before it is finally submitted, the plaintiff has an absolute right, to take a nonsuit. If there is a counterclaim or cross-complaint filed by the defendant, plaintiff is not thereby prevented from taking a nonsuit as to his complaint. The defendant, however, can still try the cause stated in his cross complaint, and plaintiff, although having dismissed his original suit, may defend against the cross-complaint. The permission of plaintiff to take a nonsuit does not prohibit the defendant from trying any cause of action set up in his cross-complaint.
It was within the discretion of the court not only to permit the plaintiff to take a nonsuit, but also to permit a trial on any cause of action alleged in defendant’s cross-complaint. Chalkley v. Henley, 178 Ark. 635, 12 S. W. (2d) 18.
“In the absence of statutes otherwise providing, jn an action tried by the court, it seems that plaintiff may dismiss after the court has announced its finding but before a note has been made thereof; but in such an action it is too late to move to dismiss after the court has announced its findings, under a statute providing that the motion ‘may’ be made at any time before the court has announced its findings, or under a statute permitting or requiring plaintiff to make his motion before such submission to the court. The announcement of its finding, within the meaning of this rule, does not occur where the court merely states that there was a lack of evidence necessary to sustain one branch of plaintiff’s case, or merely intimates what its decision or finding will be. ’ ’ 18 C. J.Í153.
“However, as we have said, plaintiff cannot dismiss or discontinue his action after an answer has been filed asking affirmative relief so as to interfere with the defendant’s rights under such plea. The dismissal by plaintiff is operative only as to his cause of action, and the defendant is still in court upon his cause of action in his counterclaim or cross-complaint, and he may demand a trial on his counterclaim or cross-complaint.” 18 C. J. 1160; Dillon v. Hawkins, 147 Ark. 1, 227 S. W. 758; Wiegel v. Road Imp. Dist. No. 1, Prairie County, 126 Ark. 31, 189 S. W. 178.
It is always within the discretion of the court to grant plaintiff permission to dismiss his cause of action at any time before judgment. Plaintiff has the right to dismiss his cause of action before trial, even after answer is filed. And, unless the defendant has a cross-complaint asking affirmative relief, he has no right to complain. A dismissal or nonsuit is at the cost of the plaintiff, and, unless defendant had filed a cross-complaint or a plea asking affirmative relief, he could get no more by trying the case than a dismissal at the cost of the plaintiff. He therefore could not be injured in any way by the court’s permission to plaintiff to take a nonsuit. If, however, defendant has filed a cross-complaint, the dismissal of plaintiff’s cause of action does not affect defendant’s right to a trial on his cross-complaint.
In the instant case,'however, there is no cross-complaint. It is true that the defendant in her answer asked for attorney’s fee, cost, and alimony. If she had been entitled to any of these items she would have had the right to trial as to them, notwithstanding plaintiff’s cause of action was dismissed. But it appears from the record that these issues were tried, and the court held that the defendant was not entitled to suit money, alimony, or attorney’s fee from plaintiff, because of the labor performed, money expended and buildings placed on defendant’s property by plaintiff, which has enhanced the value of said property, and also on account of defendant’s treatment of plaintiff.
But it is immaterial whether these issues were tried out or not. Defendant had the right, notwithstanding the dismissal by plaintiff of his cause of action, to try any cause of action stated in a counterclaim or cross-complaint.
There is nothing in this case to indicate that the court abused its discretion, and the decree of the chancellor is therefore affirmed. | [
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Holt, J.
October 24, 1921, Clyde Penn, appellee, sold certain farm property in 'Benton county, Arkansas, to William Salter, Lucia Salter, L. N. Barnes and Elsie Y. Barnes, receiving as part consideration three notes of $1,000 each, due one, two and three years, respectively, from their date. Each of these notes was signed by these four parties as makers.
January 6, thereafter, appellee Penn sold the three notes to appellant,.A. B. Mayberry, indorsing each note on the back ‘ ‘ Clyde Penn. ’ ’ Each note was identical except as to the due-date, and usual in form, except that .each contained the following recitals:
‘ ‘ The drawers and indorsers severally waive presentation for payment, protest and nonpayment of this note. We, the indorsers and sureties, hereby grant to any holder of this note the right to grant extensions without notifying1 us, or either of us, hereby ratifying' such extensions and remaining bound on this note as if no extensions had been obtained.”
The makers of these notes kept them alive with interest payments up until 1936 when default was made, and on June 12, 1939, appellant Mayberry filed suit on the three notes against the four makers, supra, and also against appellee Penn and his wife.
Although duly served with summons, appellee Penn did not appear and defend the suit, and on October 19, 1939, more than four- months after service of summons upon him, judgment by default was taken against him in this foreclosure suit.
April 8, 1940, following the expiration of the term of court at which the default judgment was entered, ap-pellee filed suit in the Benton chancery court to set aside the judgment rendered against him on the notes in the foreclosure action. As grounds for the relief prayed he invoked the provisions of subsection 7 of § 8246 of Pope’s Digest as follows:
“Section 8246. The court in which a judgment or final order has been rendered or made shall have power, after the expiration of the term, to vacate or modify such judgment or order: . . . Seventh. For unavoidable casualty or misfortune preventing the party from appearing or defending. . . .”
Appellee further alleged as a meritorious defense on the three notes in question, the bar of the five-year statute of limitations (§ 8933, Pope’s Digest).
Upon appellant’s demurrer to appellee’s complaint and amendment thereto being overruled, answer was filed denying all material allegations.
Upon a trial the chancellor found “that the plaintiff herein has suffered said judgment to go against him hy reason of his said agreement, conference and understanding with said attorney, and hy reason of said attorney not having notified him, as the court finds from the evidence should have been done, that unless said deed of conveyance were procured hy a certain, definite date, judgment would be sought on the above mentioned foreclosure suit. On account of this the court finds that in equity and good conscience, said judgment should be canceled, set aside and held for naught,” and entered a decree accordingly. This appeal followed.
The record reflects that appellee filed suit to set aside the decree of the Benton chancery court, after the term during which the decree was rendered had terminated.
Before he would be entitled to this relief, it devolved upon him to bring himself within the provisions of subsection 7 of § 8246, Pope’s Digest, upon which he relies. He must not only prove by a preponderance of the testimony that he was prevented from making his defense by unavoidable casualty or misfortune, but he must in addition allege and prove a meritorious defense. Capital Fire Ins. Co. v. Davis, 85 Ark. 385, 108 S. W. 202.
On the question of unavoidable casualty or misfortune, the record reflects that immediately upon being served with summons in the foreclosure suit, appellee, Clyde Penn, went to appellant’s attorney, E. C. Blansett, to ascertain why he had been sued, and quoting from appellee’s testimony:
“He told me that he had to bring me in as a party to the suit. I said, ‘Why bring me in?’ He said, ‘I have to do that.’ He said, ‘I don’t want this to cost you anything, because I don’t want to see you get in bad, but what I want you to do is go to Barnes and help me get a deed for the place.’ I said, ‘I’ll do all I can.’ That very day I went to see Mr. Barnes and talked to him about it.”
Penn further testified that he had known Mr. Blan-sett for years and they had been, and still are, the best of friends. “Q. What conversation did you have with Mr. Barnes? A. We talked it over. He said, ‘I would not let that cost you anything.’ I said, ‘I don’t feel that you have any equity in that place, and why don’t you give a deed and that will clear us all?’ He said, ‘I inay be able to do something with it, make a raise or take care of it right away.’ Q. Did you report that to Mr. Blansett? A. Tes. Q. When did you see Mr. Barnes again? A. Not very long after that. I saw him several times, and talked to his wife, too. Q. When did you talk to her? A. It was up in the fall. The last time I talked with him I should ,say was after the first of the year. Q. Mr. Penn, state to the court whether or not you had other talks with Mr. Blansett? A. Yes, if I remember right it was one Sunday morning. He came in the Rogers Tire & Battery Shop. He called me ‘Red.’ He said, ‘Red, it looks like you’re laying down on me getting this deed signed.’ I said, ‘I’ve done everything I can, it looks like, but I still believe we can get it done.’ He says, ‘I don’t want it to cost you anything, but I want the deed.’ ... To the best of my knowledge that was along in January of this year. . . . Mr. Greenwood and Everett Nail were present. . . .
‘ ‘ Q. State to the court when you first learned that judgment had been taken against you? A. Close to two months ago. I bought a place there in Rogers and when my deed was put on record I found out that there was a judgment against me. . . .
“Q. State whether or not, had it not been for the agreement had with Mr. Blansett, you would have employed an attorney and defended the Mayberry suit.? A. That is right. ... It looks like I would be crazy and ought to be in an asylum, knowing there was a judgment against me and putting the deed on record; if I’d known there was a judgment there I wouldn’t have— . . . As far as I knew the place had been cleared up years ago. I didn’t have no record on it.”
R. N. Greenwood and E. C. Nail gave testimony which tended to corroborate appellee.
On behalf of appellant, we quote from E. C. Blan-sett ’s testimony:
“Mr. Penn came to my office soon after summons was served on him. ... As I remember, before the suit was filed, I bad authority about the 6th day of May to accept a deed from Mr. Barnes, and Barnes refused to give Mr: Mayberry a deed in satisfaction of the mortgage that he held against him. I couldn’t say definitely whether I talked to Mr. Penn in May about it, but I think it was at that time or immediately after summons was served, Mr. Penn discussed with me the deed in question, and he acted very strange and surprised and said he believed his father had fixed it up in such a way that he, Clyde, was not liable; that he indorsed it without recourse. ... I showed him the notes and he seemed strange and seemed disturbed and sáid he thought Barnes had paid it. He said Mr. Mayberry was nice and ought to have his money. I think I told Mr. Penn to assist me in getting a deed from Mr. Barnes, and if he could do that we.could satisfy the mortgage indebtedness. That was in May or June. . ...
“Mr. Penn immediately went to see Mr. Barnes, or I suspect he did, because he came back and reported that Barnes refused to give a deed. I asked Penn if his father would have any influence on Barnes and he said he did not know, but in about three days, Mr. H. T. Penn came to my office and spoke to me about Clyde’s and Mr. Barnes’ obligation to Mayberry. Mr. H. T. Penn said he would go and speak to Mr. Barnes. At the time Mr. Clyde Penn was in my office I told him I would much prefer to have a deed from Barnes than to go to the expense of foreclosing; that I didn’t want to cause Mr. Clyde Penn any added expense or worry; I wanted to co-operate with Clyde and wanted him to co-operate with me. I think he did the best he could about getting a deed from Barnes.”
Upon an analysis of this and other testimony, we are unable to say that the findings of the chancellor, on the question of unavoidable casualty or misfortune, are against the preponderance thereof.
We are of the view that while it is clear that Mr. Blansett in no way attempted to deceive appellee, or to mislead Him, we think appellee was justified in concluding after his various interviews with Blansett, that he would not he expected or required to appear and defend in the foreclosure suit, and that there was such a misunderstanding as constituted unavoidable casualty or misfortune which prevented appellee from appearing and defending and accordingly he was entitled to relief on the judgment under the provisions of subsection 7 of § 8246, Pope’s Digest. McElroy v. Underwood, 170 Ark. 794, 281 S. W. 368.
It is undisputed from the testimony that it was the primary purpose both of Mr. Blansett and appellee, to secure a deed to the mortgaged property from Mr; Barnes, who then owned the property subject to the mortgage, without the expense of foreclosure. Appellant was willing to accept the property and relieve appellee of any personal liability on the notes and stated to appellee that he did not want it to cost him anything. Thus it appears that appellant by foreclosure may acquire title to the property, the very thing that appellee was trying to assist in'procuring for him without suit. This, we' think, an additional reason to warrant appellee in assuming that appellant did not intend to demand a personal judgment against him.
We come now to consider appellee’s defense of the five-year statute of limitations to the three notes sued on in the foreclosure suit of June'*12, 1939.
Was this defense meritorious as the chancellor found? We think it was.
The record reflects that after appellee sold and indorsed the three notes in question on January 6, 1922, to appellant Mayberry, he had nothing further to do with them. All interest payments made on the notes to keep them alive were made by one of the four original makers. Thus for almost 20 years these notes had been kept alive without any notice of extensions to appellee and without any demands upon him.
The recitals, supra, appearing in each of the notes, we think, had reference solely to the drawers, indorsers or parties whose names appeared on the notes at the time of their execution on October 24, 1921, and that these parties only granted to future holders of the notes the right to grant extensions without notifying them and bound themselves to ratify any such extensions without notice thereof. This, we think, did not apply to appellee, who was in no sense an indorser of the notes at the time of their execution.
It is our view under the terms of the notes that, appellee could only he hound for five years from the due date of each of these notes under the facts as presented in this record. Trent v. Johnson, 185 Ark. 288, 47 S. W. 2d 12, 80 A. L. R. 1431. We do not think the recitals contained in these notes can he construed to constitute a waiver of the statute of limitations hy appellee.
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McHaNey, J.
Appellants, W. P. MoGeorge and H. L. Dickinson, are partners doing business under the firm name of MoGeorge Contracting Company. In the fall of 1938 they were engaged in the construction of about six miles of new state highway north of Monticello, Arkansas, under contract with the state. Appellee, with his team, was employed on October 31, 1938, and was directed to hitch his team to a fresno machine which is something like a scoop or a slip on wheels and is guided ■by a bar called the Johnson bar, was given a helper and they were put to work on the road. At about 3 p. m. of the same date, at a time when he was guiding the machine and the helper was driving the team, and they were engaged in dressing or sloping the ditch on the west side of the road, the blade of the fresno hit a small stump, about an inch ,and a half or two inches in diameter and extending above the ground about four or five inches, which caused the Johnson bar to strike him on the hip, knocking him to the ground and injuring him. He brought this action to recover damages therefor. The negligence alleged and relied on was failure of appellants to furnish him a reasonably safe place in which to work, failure to instruct him, an inexperienced fresno operator, how to operate it and to warn him of the danger involved, and failure to discover and remove the stump or shoot. The answer was a general denial, with pleas of contributory negligence, .assumption of risk, unavoidable accident, and that if there was any negligence other than his own, it was that of his helper, a fellow servant.
Trial resulted in a verdict and a judgment for appel-lee in the sum of $650, hence this appeal.
For a reversal of this judgment appellants insist' that the court erred in refusing to direct a verdict for them at their request, and we agree with this contention. In the first place appellee was not directed to operate the fresno, but was told to hitch his team to it and was furnished a helper to operate it. He testified it was customary for the driver of the team and the. operator to change places, each to do some driving and some operating, but he was hired to drive the team and he needed no instruction in this regard. But assuming that lie was employed to change about with his helper, appellants were not insurers of his safety. They were only required to exercise ordinary care to furnish him a reasonably safe place to work and he was required to exercise ordinary care for his own sáfety. The little stump of a bush that had been cut was not in the roadway, but on the berm or shoulder of the ditch he was dressing or shaping with the fresno. It had been left there by other employees who were clearing the right-of-way and it was just as visible to him as it would have been to appellants. If there was any negligence on the part of the helper in not warning him of the presence of this obstruction, it was the negligence of a fellow servant, for which appellants would not be liable. Appellee says he was watching the blade of the fresno and did not see the stump, but had he looked a few feet ahead of the blade he could and would have seen it in time to avoid the injury. We think the case is ruled adversely to appellee by such cases as Missouri Pac. Rd. Co. v. Lame, 186 Ark. 807, 56 S. W. 2d 175; Missouri Pac. Rd. Co. v. Martin, 186 Ark. 1101, 57 S. W. 2d 1047; and Lee v. Pate, 198 Ark. 723, 131 S. W. 2d 8. In all of these it was held that employers are not insurers of the safety of their employees and are not required to furnish a place in which to work which is free of every possible object on which one might possibly get hurt. Where, as here, the danger, if any, is perfectly open and obvious to the employee, as much so as it is to the employer, the risk of such an injury is assumed and there is no liability.
For the error in refusing to direct a verdict for appellants, the judgment is reversed, and as the cause appears to have been fully developed, it will be dismissed. | [
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McHaNey, J.
Appellants are qualified electors, citizens and taxpayers of Summers School District No. 19 of Washington county, Arkansas. They 'brought this action against appéllees, State Board of Education and Earl Page, State Treasurer, “to enjoin them from making a loan to said school district from the revolving loan fund to aid in the construction of a building to be used as a gymnasium, library, and auditorium on the school grounds adjacent to the school building.”
The complaint alleged the status of the parties; that said school district made application for a loan of $2,000 on October 6, 1939, for the purpose above stated, which was approved by the county judge of Washington county on October 7, 1939, on which latter date the secretary of the school board made an affidavit as to the indebtedness of the district, and on the samé date the county clerk certified there were 96 poll taxpayers for 1938, residing in the district; that on March 15, 1940, the State Board of Education certified all the foregoing facts with all exhibits as a copy of the application of said district for said loan, and that same had been approved on December 11, 1939; that an election was held in the district, to determine whether it would apply for said loan, on January 20, 1940, at which 46 votes were cast for the loan and a three-mill tax, to pay for same, and 41 votes were cast against the loan and tax, which result was certified to the State Board of Education by the county court on January 30, 1940; that no application has been filed, so far as appellants are advised, in compliance with § 11557, Pope’s Digest, and the State Board of Education has not passed upon such an application at this time and does not intend to do so; that an abstract of title and transcript have been transmitted to the State Board for examination by the Attorney General for approval or disapproval of the title; that the State Board, unless restrained, will proceed to close said loan, prepare all papers and bonds, and will secure a mortgage on the lands and school equipment, and same will also he secured by the State apportionment due said district; that the directors of said school district intend to use the $2,000 borrowed and $1,000 which the district now has on hand to erect the building aforesaid with native stone, hardwood floors and self-supporting roof and that it cannot be constructed for $3,000; that a gymnasium is not needed, but the school has substantial needs and the revenues of the district are likely to be less from year to year; that if the loan is made, the future school program will be materially curtailed, to their irreparable injury; and that the making of said loan would be an illegal exaction and a dissipation of school funds, contrary to the constitution.
To this complaint a demurrer was interposed and sustained. Appellants declined to plead further and the complaint was dismissed as being without equity. This appeal followed. Appellees have not favored us with a brief.
The brief of appellants is devoted entirely to the establishment of the proposition that they have the legal right to bring this suit. The constitution, § 13 of art. 16, provides: “Any citizen of any county, city or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.” We assume, for the purpose of this opinion, that they have such right. The question then arises, Is this an illegal exaction? We think not, and if not, then the demurrer was properly sustained and the complaint dismissed, if the procedure prescribed by statute, § 1155-2 et seq., Pope’s Digest, has been complied with. The complaint alleges a substantial compliance with the statute, except it is alleged that § 11557 has not been complied with, so far as they are advised. That section provides that application for loans shall be accompanied by a certificate of the president and secretary of the district in substantial compliance with a form therein set out. This certificate relates to the result of, the election required by § 11553, which was held on January 15, 1940. This suit was filed March 20, 1940. No loan has as yet been made, but the application has ibeen approved. We think we must assume that the State Board will require a substantial compliance with the provisions of § 11557 before any loan is made.
The buildings contemplated do not constitute an illegal purpose. We held in Young v. Linwood School Dist. No. 7, 193 Ark. 82, 97 S. W. 2d 627, that such a building was a school building within the meaning of § 59 of act 169 of 1931.
The trial court correctly sustained the demurrer, and its decree is accordingly affirmed. | [
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Hart, C. J.,
(after stating- the facts). It is conceded by counsel that the only question raised by this appeal is the validity of the sale of the lands in question for the taxes levied by the county court in October, 1923. It is claimed that the record does not show that the school taxes were voted and levied in accordance with the provisions of the statute. In making this contention, reliance is placed upon the fact that the county clerk did not spread upon the records of the county court the certificate of the result of the school elections filed in his office by the superintendent of the board of education of St. Francis County.
Section 8878 of Crawford & Moses’ Digest provides that the county board of education shall promptly canvass the returns of all school elections and certify the result to the county court for proper record. Section 8955 provides that the returns of the school elections, together with the ballots, shall be sealed up and delivered by one of the election judges to the county board of education within twenty days after the election. Section 8956 provides that the county court, at its meeting for levying taxes, shall take the records of the county board of education and ascertain whether the majority of the votes be for tax and the amount of taxes voted in the particular district. Section 8970 provides that the county board of education, in school elections in cities and towns, shall also declare the result of the vote for and against the tax, and certify the same to the county court on the day of the term fixed by law for levying taxes, and that the rate of taxes so certified shall be levied by the court as are other school taxes.
It is contended by counsel for appellant that in making the levy of the siehool taxes the county court can only be governed by the record made in its office as to the result of the school election, and that, inasmuch as the result of the school election was not spread upon the records of the county court, no valid levy could be made. We do not agree with counsel in this contention. We think there was a substantial compliance with the provisions of the statute. The undisputed proof shows that the result of the election, as shown by the order of the county court levying the school taxes in question in this case, was certified by the county board of education, after canvassing the returns of said school election. A carbon copy of the certificate was kept on file by the superintendent of the board, and what was called the original was, filed by him in the office of the county clerk. The county clerk made a notation upon the taxbooks of the result of the school election in question, and filed the certificate of the result of the election in his office. This was a substantial compliance with the statute. The statute did not require that the certificate of the result of the school election should be spread at large upon the records of the county court. It was sufficient if the clerk filed it and it thereby became a part of the permanent records of the county court. The fact that it was lost or destroyed did not impair its force as a part of the records of the county court. It only became necessary to prove the fact that it was lost to admit secondary proof of the contents of the ¡certificate.
The settled rule in such cases in this State is that, after proof of the loss or destruction of a record satisfactory to the court is made, its contents may be proved, like any other document, by secondary evidence, when the case does not, from its nature, disclose the existence of other and better evidence. Davies v. Pettit, 11 Ark. 349; Brasch v. Western Tie & Timber Co., 80 Ark. 425, 97 S. W. 445; and Woodruff v. State, 61 Ark. 157, 32 S. W. 102.
Proof that the certificate had been filed was established by the testimony of the superintendent of the board, whose duty it was to deliver the certificate of the school election to the county'clerk, and also by the testimony of the county clerk, whose duty it was to file the same. The loss of the certificate was established by the testimony of the county clerk, who was its custodian as a part of the records of the county court. This testimony was sufficient to let in parol proof of the contents of the certificate, and this was established by the testimony of the county superintendent to the effect that he had kept a carbon copy of the certificate in his office, and the result of the election as shown by his testimony was taken from that copy. The county clerk also testified that, when the certificate was, filed by him, he made a notation therefrom upon the taxbooks of the amount of the levy and the result of the vote. The notation made by bim corresponded with, the amount of tax voted and the result of the vote as shown by the carbon copy of the result of the election as certified and filed with the county board of education. Hence we are of the opinion that there was a valid record of - the school taxes established, which could be acted upon by the county court, and that the sale of the land for the nonpayment of school taxes was in all respects a legal and valid sale and that ap-pellees Latham acquired a valid title under their donation certificate.
It follows that the decree of the chancery court quieting title in them in the lands in question was correct, and must be affirmed. It is so ordered. | [
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Hart, C. J.
American Portland Cement Company, a corporation, prosecutes this appeal to reverse a decree of the chancery court refusing to confirm its tax title to certain lands. The petition to confirm the tax title to the lands was. filed under the provisions of §§ 8379-8392 of Crawford & Moses’ Digest, and is in statutory form. What purports to be two tracts of land are involved. The assessment book showed one tract described as follows: “Pt. west half of the northeast quarter of section 2(8, township 12 south, range 32 west, containing 11.48 acres.” The other tract was assessed separately, and is described as follows: “Pt. west half of the northeast quarter of section 28, township 12 south, range 32 west, containing 68.52 acres.” The same description of each tract is carried into all the subsequent proceedings. The two tracts, under the descriptions copied above, were sold separately by the collector on the same day to Natalie 8. Williams, and, after the period of redemption allowed by statute had expired, the clerk ex-excuted to her two tax deeds. The description in each deed followed that copied above. Subsequently she executed a quitclaim deed to the American Portland Cement Company to the west half of the northeast quarter of section 28, township 12 south, range 32 west, containing 80 acres. The chancery court found that the descriptions in the tax deeds were void on their face, and the petition for confirmation was dismissed for want of equity.
The chancellor was correct in his opinion. The object of the description of land on the assessment books and in the subsequent proceeding’s leading up to and including the sale is not only to inform the taxpayer what property is taxed as his, but also to inform the public, if the land is sold for the nonpayment of the taxes, just what land is sold. The description is void where it is so vague and indefinite that it in no way identifies the land. Lonergan v. Baber, 59 Ark. 15, 26 S. W. 13; Buckner v. Sugg, 79 Ark. 442, 96 S. W. 184; and Brinkley v. Halliburton, 129 Ark. 334, 196 S. W. 118, A. L. R. 1225.
The description of each tract in the present case is part of the west half of the northeast quarter of a certain section. The owner conld not know from this description what lands were assessed as his, nor whether the land of others might he included in the assessment. Such an .assessment imposes no duty upon a taxpayer, and has been uniformly held by this court to he absolutely void on its face. Cooper v. Lee, 59 Ark. 460, 27 S. W. 970; Guy v. Stanfield, 122 Ark. 376, 183 S. W. 966; Covington v. Berry, 76 Ark. 460, 88 S. W. 1005; Hewett v. Ozark White Lime Co., 120 Ark. 528, 180 S. W. 199; Cotton v. White, 131 Ark. 273, 199 S. W. 116; and Buchanan v. Pemberton, 143 Ark. 92, 220 S. W. 660.
The correctness of these decisions is not challenged, but it is contended that they do not apply because the number of acres set out in each .tract, when added together, amounts to 80 acres, and that this showed that the whole west half of the northeast quarter was assessed for taxation and sold at the tax sale. It will be noticed that one tract is described as containing 68.52 acres and the other as containing 11.48, totaling* 80 acres. The trouble about this contention is that the two tracts were assessed separately and were sold separately. The owner of land in the northeast quarter of section 28 could not be put on notice from either description that his land had been assessed for taxation or was to be sold for the nonpayment of taxes. He could not be required to search through the assessment hooks and see if, by any chance, his lands had 'been assessed for taxation and sold for the nonpayment of taxes, by comparing the description with those of other descriptions in the same governmental subdivision. All the owner would be required to do was to take notice that his lands were assessed for taxation and sold for nonpayment of taxes, and, if the description was too vague and indefinite for that purpose, it would be absolutely void on its face, and the tax deed containing the same void description would be equivalent to no deed at all. Hornor v. Jarrett, 99 Ark. 154, 137 S. W. 820.
Appellant in this case could acquire no better rights by the quitclaim deed executed to it by the purchaser than the tax purchaser acquired by the tax deed executed to her. Therefore the decree will be affirmed. | [
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Kirby, J.
Appellee, the 'beneficiary named in the policy or certificate of insurance upon the life of his wife, Mable Wiggins, brought this suit to recover $400, alleged to be the balance due under the policy for $500 and for penalty and attorney’s fees, and recovered judgment, from which the appeal is prosecuted.
The complaint alleged the issuance of the policy on the 1st day of July, 1927, jointly to Curtis Wiggins and others for the payment of $500 upon the proof of death of Curtis Wiggins and Mable Wiggins; that Curtis Wiggins was named as beneficiary of Mable Wiggins; the payment of all premiums, the death of the insured Mable Wiggins on the 10th day of May, 1928, the payment as provided in the policy upon the next day after information of the death of the insured of $100, denial of liability under the policy on account of false answers in the application for insurance, the application stating that •Mable Wiggins was not pregnant when in fact she was pregnant. That, prior to and at the time of making the application for insurance, Mable Wiggins and Curtis Wiggins, the plaintiff, advised, notified and informed the company and its agents of Mable Wiggins’ true condition, that she was pregnant, but the defendant’s agents who prepared the application for the'policy, knowing her true condition, carelessly or fraudulently stated in the application for insurance that said Mable Wiggins was not pregnant, which statement was unknown to her or the plaintiff at the time.
The answer denied the other allegations of the complaint, admitted denying liability under the policy on account of false answers in the application for insurance, and admitted that the application stated that Mable Wiggins was not pregnant, when in fact she was. Denied that she or Curtis Wiggins had advised, notified and informed the defendant or its agents of her condition, of pregnancy and that its agents who prepared the application for the policy knew the true condition of Mable Wiggins and carelessly or negligently stated on the application that she was not pregnant and that such answer was unknown to her or the plaintiff. Denied’plaintiff’s right to attorney’s fees, alleging the statute under which the claim was made to be unconstitutional, contravening the Federal Constitution. .
The application which was attached to and made part of the policy was exhibited with it, and shows Mable Wiggins was asked the question, “Are you pregnant a1 this time?” Answer, “No.” The application also contains the statement and warranty that the applicant knew that her insurability was to be determined without medical examination and by the answers made to the questions, and that before signing the application she had read or had had read to her each of the answers, and that eah of same was unqualifiedly true, warranting them to be so, etc.
The policy contained the following provision: “The company shall not be liable in any amount for death resulting within 10 months from the date of this policy as a direct or indirect result of pregnancy or childbirth. ’ ’ The policy was issued on June 4, 1927, and her death occurred on the 10th day of May, 1928.
Appellee, being asked the condition of his wife at the time of applying for the insurance, stated the agent asked if she was pregnant, and he told him she was, and the agent said, “Well, then, I don’t know whether I can write her or not until I see further, ’ ’ and he went away, and in a few days returned and told appellee, “It is all right. I am ready and will write up your policy.” He stated that his wife did not sign the application; that she eonld not write or read, and he did not know who signed it for her. That the agent had him to sign his name, and that he did not know of his wife’s signing by making her mark with a witness, and that she did not answer the question in the application, “Are yon pregnant at this time?” “No.” That he did not ask her, at the time of filling out the application, anything about being pregnant, but they had told him a number of days before that she was pregnant. The agent taking the application did not testify, and the application as signed did not purport to be signed by Mable Wiggins by mark.
The company paid the $100, according to the terms of the policy, on the day after being informed of the death of Mable Wiggins, and later, in checking up on the claim, denied liability because of the answer, “No,” by the insured, appearing in the application to the question, “Are yon pregnant at this time?”
There is no contention on the part of appellee that the insured was not pregnant at the time the application for the policy was made, or denial that she gave birth to a child on the 27th day of September, 1927, after the date of the policy on the 4th day of June, 1927, or that her death occurred on the 10th day of May, 1928. The beneficiary’s statement that he had told the agent, when applying for insurance, shortly before the application was written, that his wife was pregnant, and had been unformed by the agent that he did not know whether he could write a policy until he saw further about it, and in a few days was informed by him that “It is all right. I am ready and will write your policy up,” was undisputed. Neither was his statement that his wife could not read or write denied, and he also testified that no question was asked her by the agent at the time he wrote the application about her condition.
The jury found against the appellant, on conflicting testimony, that no false warranty had been made as to the condition of pregnancy of the insured, that no ques tion about it was asked her, and the answer “No” to the printed question was not made or authorized by the insured, but written by the agent taking the application, notwithstanding he had before been fully informed of the pregnancy of the insured.
In Southern Insurance Co. v. Floyd, 174 Ark. 373, 295 S. W. 715, it was said, quoting syllabus:
“Knowledge relating to the physical condition of the insured which comes to the agent of the insurance company, while he is performing the duties of his agency in receiving applications for insurance and delivering policies, becomes the knowledge of the company, and the insurame company is bound thereby, in spite of a provision in the policy to the contrary, where the agent who solicited the business was charged with the duty of asking the applicant questions concerning his physical condition. ’ ’
The testimony of the beneficiary shows that the applicant correctly and truthfully answered all questions about her physical condition propounded to her, and is to the effect that there was no collusion between the ag-ent of the company and the insured; and it is also undisputed that the agent had knowledge of the insured’s pregnancy at the time he wrote the application for the insurance. It is also true that the death of the insured occurred more than ten months after the delivery of the policy, and its validity could not therefore be affected nor liability by the company escaped under the provision for non-liability for death resulting- within 10 months from the delivery of the policy, as a result, directly or indirectly, of pregnancy or childbirth, if such had been the case, and it was not shown to be.
The issue was submitted to the jury on proper instructions, and there was substantial testimony in support of the verdict, which will not be disturbed by this court. The judgment is accordingly affirmed. | [
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SHAWN A. WOMACK, Associate Justice
| Appellant Richard Shreck appeals the circuit court’s ruling admitting into evidence, during the sentencing phase of his trial, conversations regarding “snuff’ sex. Appellant argues the conversations were irrelevant and unduly prejudicial. We affirm the judgment of the circuit court.
Facts and Procedural Background
The appellant entered an online chat-room and began to chat with a police officer trained to investigate crimes against children. The chatroom, which they were both in, typically includes people who chat about sexually deviant behavior, including sexually exploiting children. The online profile of the officer was that of a single mother of a ten-year-old daughter and an eight-year-old son whom she was willing to make available for the sexual gratification. of the chatroom participants. The conversation between appellant and the officer involved sexual acts with the officer’s imaginary children. Appellant |aultimately made arrangements to meet the officer and her imaginary children at a parking lot in Conway and take them to Hot Springs for sex. Upon meeting the officer, the appellant was placed in custody.
During the online conversations, appellant admitted that he was interested in “snuff’ and bondage sex. He also stated that he had thought about snuffing a child. Further, during one of the conversations, appellant sent a picture of a device he made for snuffing women. He also asked for pictures of the officer’s imaginary children and stated that he was talking about snuff sex with others, including a sixteen-year-old girl. Testimony at trial described snuff sex as killing someone during or after sex and indicating that it may be done by impaling someone with a sharpened rod.
Appellant was ultimately charged with two counts of conspiracy to commit rape and two counts of attempted internet stalking of a child. The internet-stalking charges were nolle prossed by the State. A jury subsequently convicted the appellant of two counts of conspiracy to commit rape and sentenced him to 30 years in prison on each count.
During the sentencing phase, the officer testified regarding the conversations centered on “snuff’ and bondage sex. Additionally, the State entered into evidence pictures that depicted women being impaled during sex, which were found on the defendant’s computer, as well as the picture of the device the defendant made for impaling women.
Standard of Review
A circuit court’s decision to admit evidence during the penalty phase is reviewed for an abuse of discretion. Crawford v. State, 362 Ark. 301, 303, 208 S.W.3d 146, 147 (2005); Brown v. State, 2010 Ark. 420, at 12, 378 S.W.3d 66, 73. Determining what is relevant and 13what is prejudicial is at the discretion of the court. MacKool v. State, 365 Ark. 416, 449-50, 231 S.W.3d 676, 701 (2006). The standard “is a high threshold that does not simply require error in the circuit court’s decision, but requires that the circuit court act improvidently, thoughtlessly, or without due consideration.” Holland v. State, 2015 Ark. 341, at 7, 471 S.W.3d 179, 184.
Abuse of discretion
The Arkansas Code provides that relevant character evidence is admissible during the sentencing phase of a trial. Ark. Code Ann. § 16-97-103(5) (Repl. 2016). Therefore, while the rules of evidence apply during all stages of the proceeding, certain evidence is admissible during sentencing that would not be admissible at trial. Brown, 2010 Ark. at 12, 378 S.W.3d at 73.
I. Relevancy
Relevant information is evidence having “any tendency to make the existence of any fact that is of consequence to the determination, of the action more probable or less probable than it would be without the evidence.” Ark. R. Evid. 401; Echols v. State, 326 Ark. 917, 957, 936 S.W.2d 509, 529 (1996). For example, in Crawford we held that testimony from a detective about subsequent drug-related searches was relevant regarding defendant’s character during a sentencing proceeding for current drug related charges. 362 Ark. at 306, 208 S.W.3d at 149.
In the instant case, the circuit court did not abuse its discretion. Here, the appellant was found guilty by a jury of two counts of conspiracy to commit rape; a crime involving deviant sexual activity— in this case with two minor children. The snuff-sex evidence 1¿presented by the State in the sentencing phase also includes deviant sexual activity on the part of the appellant in both fantasy and in taking initial actions toward that fantasy and is therefore relevant character evidence. The evidence clearly has a “tendency” of proving a fact of consequence in the sentencing proceeding.
II. Unduly Prejudicial Value
Although evidence is relevant, it may nonetheless be excluded if “its probative value is substantially outweighed by the danger of unfair prejudice.” Ark. R. Evid. 403. Further, “[t]he fact that evidence is prejudicial to a party is not, in itself, reason to exclude evidence. The danger of unfair prejudice must substantially outweigh the probative value of the evidence.” Branstetter v. State, 346 Ark. 62, 74, 57 S.W.3d 105, 113 (2001). Lastly, bare conclusory allegations regarding prejudice are not sufficient to carry an Appellant’s burden on appeal. See Diemer v. State, 365 Ark. 61, 67, 225 S.W.3d 348, 352 (2006).
In Walls v. State, we reversed a sentence for a defendant when it was based on irrelevant impact-panel testimony. 336 Ark. 490, 499, 986 S.W.2d 397, 402 (1999). Walls pleaded guilty to five counts of rape, and during the sentencing phase for the rape charges the prosecution introduced victim-impact testimony regarding Walls’s involvement in an uncharged, unproven murder. 336 Ark. at 499, 986 S.W.2d at 402. We specifically noted that the rapes that occurred were vile and sickening, but it is a foundation of our criminal justice system that we do not sentence defendants for unproven, uncharged crimes. 336 Ark. at 500-01, 986 S.W.2d at 402-03. We therefore held the testimony was both irrelevant and unfairly prejudicial. Id.
[fiHere, the evidence is obviously prejudicial to the defendant. However, the question is whether the evidence is unfairly prejudicial. See Lard v. State, 2014 Ark. 1, at 6, 431 S.W.3d 249, 258. (“This court has observed that evidence offered by the State is often likely to be prejudicial to the accused, but the evidence should not be excluded unless the accused can show that it lacks probative value in view of the risk of unfair prejudice.”) We hold that the evidence in this case is not unfairly prejudicial. Further, unlike Walls, there is no indication that the Appellant in this case was sentenced for an uncharged and un proven crime. The Appellant was convicted of conspiracy to commit rape of two minor children and the snuff-sex conversations took place during the planning of the act. Additionally, during those conversations, he not only expressed his interest in snuff sex, but also indicated that he was interested in performing it with minors. The snuff-sex conversations are therefore highly probative and relevant to the crimes for which he was convicted.
Appellant’s allegation that the sentence imposed indicates unfair prejudice is con-clusory and not enough to carry his burden on appeal. We have noted that a defendant who has received a sentence within the statutory range short of the maximum sentence cannot show prejudice from the sentence itself. Bond v. State, 374 Ark. 332, 340, 288 S.W.3d 206, 212 (2008). While the Appellant in this case did receive the maximum sentence, he must still show that any prejudice outweighs the probative value of the evidence. The evidence presented in the sentencing phase is highly relevant to the appellant’s character, and he has not shown that the prejudicial effect is to such a degree that the evidence should be excluded. Accordingly, the evidence is not unfairly prejudicial.
|fiBecause the evidence regarding “snuff’ sex was both relevant and not unduly prejudicial, we hold that the circuit court did not abuse its discretion by admitting the evidence during the sentencing phase of the trial.
Affirmed.
Hart, J., dissents. | [
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MIKE MURPHY, Judge
|, Appellant Joshua Barker was convicted of driving while intoxicated in the Prairie Grove District Court on November 17, 2015. A notice of appeal from this disposition was filed with the Washington County Circuit Court on November 25, 2015. No certified copy of the district court record was ever filed with the circuit clerk. On appeal, Mr. Barker contends that the circuit court erred in dismissing his appeal for lack of jurisdiction. We find no error, and affirm.
A bench trial was held on February 18, 2016, in the Washington County Circuit Court where the circuit court questioned its jurisdiction to hear the case because the file did not contain the record from the district court. Mr. Barker’s counsel informed the court that the record was filed with the notice of appeal, and the court recessed to allow counsel to confer with the circuit clerk’s office in an attempt to locate it. Counsel was unable to do |2so, and the circuit court dismissed Mr. Barker’s case, citing its lack of jurisdiction under Arkansas Rule of Criminal Procedure 36(c) because the record was not timely filed.
On appeal, Mr. Barker argues that his appeal to the circuit court should not have been dismissed because (1) he was under the impression that his appeal was perfected and (2) the Arkansas Rules of Criminal Procedure and corresponding caselaw do not provide for what Mr. Barker should have done to meet his burden to perfect his appeal.
Criminal appeals from district courts to circuit courts are governed by Rule 36 of the Arkansas Rules of Criminal Procedure. It provides that the time allowed for filing an appeal from district court to circuit court is thirty days from the date the judgment was entered in the district court. Ark. R. Crim. P. 36(b). The rule further provides, in pertinent part, as follows:
(c) How Taken. An appeal from a district court to circuit court shall be taken by filing with the clerk of the circuit court a certified record of the proceedings in the district court. Neither a notice of appeal nor an order granting an appeal shall be required. The record of proceedings in the district court shall include, at a minimum, a copy of the district court docket sheet and any bond or other security filed by the defendant to guarantee the defendant’s appearance before the circuit court. It shall be the duty of the clerk of the district court to prepare and certify such record when the defendant files a written request to that effect with the clerk of the district court and pays any fees of the district court authorized by law therefor. The defendant shall serve a copy of the written request on the prosecuting attorney for the judicial district and shall file a certificate of such service with the district court. The defendant shall have the responsibility of filing the certified record in the office of the circuit clerk. Except as otherwise provided in subsection (d) of this rule, the circuit court shall acquire jurisdiction of the appeal upon the filing of the certified record in the office of the circuit clerk.
Per Mr. Barker’s counsel, it is the common practice of the Prairie Grove District Court clerk to send all of the proper documents to the Washington County Circuit Court Clerk’s Office when a notice of appeal has been filed, and he assumed the clerk would do |3the same in his case. Citing Hoelzeman v. State, he argues that there is an implied promise that the district court clerk would send the appropriate paperwork. 241 Ark. 213, 406 S.W.2d 883 (1966). Hoelzeman, however, is inapplicable.
In Hoelzeman, our supreme court reversed a circuit court’s dismissal of an appeal from a justice-of-the-peace court because the necessary transcript had not been filed with the circuit court within thirty days. Id. At the time Hoelzeman was decided, it was the responsibility of “the clerk of the court or the justice of the peace of the court from which the appeal [was] taken” to timely file the appropriate documents with the circuit clerk’s office. Id. at 217, 406 S.W.2d at 885 (quoting Ark. Stat. Ann. § 26-1307 (Repl. 1962)).
Here, Rule 36 expressly states that a defendant has the burden to ensure that his or her appeal from the district court is timely made, and the responsibility to ensure that an appeal is timely perfected from the district court to the circuit court cannot be shifted from the defendant to the clerk’s office. See also Fletcher v. State, 2016 Ark. App. 215, at 5, 489 S.W.3d 726, 729.
Mr. Barker further asserts that there is no guidance within our Arkansas Rules of Criminal Procedure or current caselaw for what he could have done to perfect his appeal. Rule 36(d), however, adequately addresses this point.
Failure of Clerk to File Record. If the clerk of the district court does not prepare and certify a record for filing in the circuit court in a timely manner, the defendant may take an appeal by filing an affidavit in the office of the circuit clerk, within forty (40) days from the date of the entry of the judgment in the district court, showing (i) that the defendant has requested the clerk of the district court to prepare and certify the record for purposes of appeal and (ii) that the clerk has not done so within thirty (30) days from the date of the entry of the judgment in the district court. The defendant shall promptly serve a copy of such affidavit upon the clerk of the district court and upon the prosecuting attorney. The circuit court shall acquire jurisdiction of the appeal upon the filing of the affidavit. On motion of the defendant or the prosecuting Uattorney, the circuit court may order the clerk of the district court to prepare, certify, and file a record in the circuit court.
Ark. R. Crim. P. 36(d).
It is evident that Mr. Barker assumed the district court clerk would send the record to the circuit clerk and he did not follow up to see if it had actually been sent or filed. Had he done so, he would have been able to avail himself of the relief found in Rule 36(d).
Because Mr. Barker did not timely perfect his appeal from the district court, the circuit court properly concluded that it lacked jurisdiction to hear the case on appeal.
Affirmed.
Abramson and Glover, JJ,, agree. | [
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ROBERT J. GLADWIN, Judge
h Cynthia “Cindy” Farrell and Hansford “Hank” Farrell were divorced by decree entered in November 2011. Cindy appeals for the third time and argues that the Sebastian County Circuit Court should have provided a more equal distribution of the marital assets and that the court erred in denying her requests for alimony and attorney’s fees. We agree that the circuit court’s division of the marital property was not equitable to either party. Accordingly, we reverse in part, affirm in part, and remand.
This was a marriage lasting more than thirty years. The parties agreed that all of their substantial amount of property was marital property. The major asset and the crux of this dispute is Hank’s minority interest in a conglomerate of closely held family businesses^ referred to by the circuit court and the parties as the Farrell-Cooper Companies. He also owns an interest in what the parties called the Texas entities or ventures. The circuit court valued the marital interest in the Farrell-Cooper Companies at $9.9 million after applying a discount, with the entire interest being awarded to Hank. Cindy was awarded the remaining marital property, which included the proceeds from the sale of the marital home, another house in Fort Smith, and the parties’ IRA and 401K accounts, with a total value of approximately $1,045 million. Cindy was also awarded lifetime alimony to compensate for the unequal property division. Cindy’s appeal of the decree led to our opinion in Farrell I.
Following remand from Farrell I, the circuit court valued the Texas entities at $1.6 million, with each party’s share valued at $800,000. The court then applied a thirty-five percent minority discount to Cindy’s share, with her share calculated at $670,148.58. This brought Cindy’s share of the marital estate to approximately $5.2 million. The Texas entities were assigned, in their entirety, to Hank. The court increased Cindy’s alimony to $13,000 per month. Cindy also appealed this decision.
In Farrell II, we noted lack of clarity in the circuit court’s ruling. There was uncertainty as to whether the periodic payments labeled “alimony” were traditional alimony or payments for Cindy’s share of the marital property. We noted that the court appeared to make an unequal distribution of the marital estate without stating the basis for such a division, as required by Arkansas Code Annotated section 9-12-315(a)(1)(B) (Repl. 2015). We also stated that the fact Hank was awarded all of the parties’ income-producing property while Cindy had to wait many years before she received her full share of the marital estate was a concern. The circuit court was directed to consider whether Hank should be required |sto obtain a loan to pay Cindy for her share of the marital property. We further suggested that the court consider some type of security for the payments. Finally, we granted the circuit court permission to reconsider whether Cindy should receive “traditional,” need-based alimony and any possible tax consequences.
Following the remand from Farrell II, the circuit court confirmed that the monthly payments to Cindy were intended to compensate her for her share of the marital estate. The court conducted a hearing on • November 12, 2015, to determine whether Hank should be required to obtain a loan to pay Cindy and what security could be provided to Cindy for the payment of the money owed her. During the hearing, the parties presented evidence addressing whether Hank would be able to obtain a loan with which to pay Cindy for her share of the marital estate. Cindy also proposed that Hank sign a note to her in the amount of approximately $4.2 million on very favorable terms.
At the conclusion of the hearing, the circuit court asked both parties to submit proposed findings of fact and conclusions of law. The court later adopted the findings of fact and conclusions of law submitted by Hank. The court concluded that Hank was unable to obtain a loan from a commercial bank and rejected Cindy’s proposal that Hank sign a promissory note in her favor secured by his interest in the family businesses. The court found that such an arrangement would.be unfair to Hank. The court also denied Cindy’s request for need-based alimony and denied her petition for attorney’s fees. A decree incorporating the findings and conclusions was entered on February 4, 2016. This appeal followed.
In the earlier appeals, we set forth our standard of review as follows:
On appeal, we review divorce cases de novo. We give due deference to the circuit court’s superior position to deterr mine the credibility of witnesses and the Rweight to be given their testimony. With respect to the division of property in a divorce case, we review the circuit court’s findings of fact and affirm unless those findings are clearly erroneous. The obligations imposed upon a trial court by our property-division statute are quite exacting. Arkansas Code Annotated section 9-12-315(a) (Repl. 2009) provides that “[a]ll marital property shall be distributed one-half to each party unless the court finds such a division to be inequitable.” The court may make some other division that it deems equitable; however, when it decides not to divide the property equally between the parties, it must recite its basis and reasons for the unequal division in its order.
Farrell I, 2013 Ark. App. 23, at 6, 425 S.W.3d at 829 (alteration in original) (citations omitted). We have noted that
[t]he circuit court has broad powers to distribute property in order to achieve a distribution that is fair and equitable under the circumstances; it need not do so with mathematical precision. The critical inquiry is how the total assets are divided. We will not substitute our judgment on appeal as to the exact interest each party should have but will decide only whether the order is clearly wrong.
Id. at 7, 425 S.W.3d at 830 (citations omitted).
We find merit in Cindy’s first argument that the circuit court erred in its distribution of the parties’ marital property. Cindy argues that she is entitled to receive approximately $4.2 million as her share of the marital estate.
In each of its orders leading to Farrell I and Farrell II, the circuit court found that each party’s share of the marital estate was worth approximately $5.2 million. It did not modify that finding in subsequent orders; the only mention of an unequal distribution was of the stock in the Farrell-Cooper Companies being awarded to Hank with Cindy receiving most of the parties’ liquid assets. Therefore, we surmise that the circuit court intended for each party to receive an equal share of approximately $5.2 million. Under the decree as amended, Cindy was awarded $1,045 million in liquid assets. Hank was permitted to pay to Cindy her outstanding share of the property division as “alimony” of $13,000 per month for the remainder of Cindy’s life. The circuit court later clarified on remand from Farrell II that the Inpayments were indeed intended as reimbursement for Cindy’s share of the marital property. However, the court made no provision for what would happen to the payments in the event of the death of either party. The court also did not address interest on the payments.
The circuit court’s approach is not equitable to either party. As we pointed out in Farrell II, it would take over twenty-six years to pay Cindy the remaining $4.16 million due for her share of the marital property. Farrell II, supra, at 7. It is unfair to Hank to make him continue until he is in his eighties to pay Cindy for her share of the marital property. It is likewise unfair to make Cindy wait until she is also in her eighties to have the full enjoyment of her share of the marital property while Hank is able to fully use his share now. By requiring that all property be divided and distributed at the time the divorce decree is entered, Arkansas Code Annotated section 9-12-315(a) seeks to disentangle the parties’ financial affairs and make them free from each other’s interference. The rationale for such a statute was well explained by the New Hampshire Supreme Court as follows:
Any court order that postpones distribution, thereby financially linking the parties to one another following a judgment of dissolution, invites future strife when one of the parties seeks to enforce the order. In addition, the spouse awaiting distribution could find [himself] or herself deprived of, or forced into further litigation concerning, the ordered share of marital property by intervening events such as the obligor’s bankruptcy, fraudulent transfer of assets, or untimely death. As such, a trial court should award a property settlement to be effected immediately where practicable.
In the Matter of Harvey & Harvey, 153 N.H. 425, 899 A.2d 258, 268 (2006), overruled on other grounds In the Matter of Chamberlin & Chamberlin, 155 N.H. 13, 918 A.2d 1 (2007).
Here, the parties’ major asset is Hank’s stock in the Farrell-Cooper Companies and the Texas entities. Arkansas Code Annotated section 9—12—315(a)(4) governs this issue and provides as follows:
|fi(4) When stocks, bonds, or other securities issued by a corporation, association, or government entity make up part of the marital property, the court shall designate in its final order or judgment the specific property in securities to which each party is entitled, or after determining the fair market value of the securities, may order and adjudge that the securities be distributed to one party on condition that one-half (1/2) the fair market value of the securities in money or other property be set aside and distributed to the other party in lieu of division and distribution of the securities.
In Hodges v. Hodges, 27 Ark. App. 250, 770 S.W.2d 164 (1989), we applied the statute and pointed out that a circuit court has two options when dividing corporate stock in a divorce: (1) designate the specific property in stock to which each party is entitled or (2) order that the stock be distributed to one party and the other party receive one-half of the fair market value of the stock in money or other property. We specifically held that the statute did not authorize a stock sale and division of the proceeds.
We recognize that the Farrell-Cooper Companies and the Texas entities are closely held family corporations and, as such, have limited marketability. We further recognize that the circuit court did not want to make Cindy a shareholder because her lack of knowledge of the business and her lack of trust toward Hank’s family members running the business would make her, in the words of her attorney, an “officious intermeddler.” We also have before us the circuit court’s finding that Hank lacks the ability to borrow sufficient funds with which to pay Cindy for her interest in the marital property. However, these findings cannot in any way justify the circuit court’s departure from its obligation to make an |7equitable division of the parties’ marital property. Nor do the same findings justify ignoring section 9-12-315(a)’s command that the marital property be distributed at the time of the divorce. See Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982). Accordingly, we hold that the circuit court erred by allowing Hank to pay a substantial portion of Cindy’s share of the marital property over a multi year period. Upon remand, the circuit court should, pursuant to section 9-12-315(a)(4), order an immedi ate equal division of the stock. Hank is to be given credit against Cindy’s share of the marital property for the monthly “alimony” payments he has made since entry of the original decree.
This brings us to Cindy’s second argument that the circuit court abused its discretion in failing to award her traditional, need-based alimony. In denying Cindy’s request for traditional alimony, the circuit court found that there was “insufficient evidence presented [at the trial] in 2011 to support traditional ‘need-based’ alimony: $1.0-plus million in investable ■ cash, plus the equitable reimbursement alimony, would reasonably address any need(s) that had been presented by [Cindy].”
The decision to grant alimony lies within the sound discretion of the circuit court and will not be reversed on appeal absent an abuse of discretion. Stuart v. Stuart, 2012 Ark. App. 458, 422 S.W.3d 147. A circuit court abuses its discretion when it exercises its discretion improvidently, or thoughtlessly and without due consideration. Id. The purpose of alimony is to rectify the economic imbalance in earning power and standard of living of the parties to a divorce in light of the particular facts of each case. Davis v. Davis, 79 Ark. App. 178, 84 S.W.3d 447 (2002). In fixing the amount of alimony to be awarded, the circuit court is given great discretion, and the appellate courts will not disturb the award on appeal! s unless there is an abuse of that discretion. Id. The primary factors to be considered in making or changing an award of alimony are the need of one spouse and the ability of the other spouse to pay. Id. Secondary factors to be considered by the trial court include (1) the financial circumstances of both parties; (2) the amount and nature of the income, both current and anticipated, of both parties; (3) the extent and nature of the resources and assets of both parties; and (4) the earning ability and capacity of both parties. Id. The amount of alimony awarded should not be reduced to a “mathematical formula” because the need for flexibility outweighs the need for relative certainty. Id.
Cindy argues that the circuit court failed to consider the proper factors in denying her request. There was no additional evidence presented on remand from either appeal dealing with factors bearing on alimony. The court’s original 2011 letter opinion stated that the court considered all of the factors relevant to alimony. The parties were married for over thirty years. Cindy was 55 years old at the time of trial in 2011, making her now 60. Cindy was not employed outside of the home during that entire time, and she has no likelihood of earning much in the future. She has a number of health problems, and the circuit court did not direct Hank to continue providing health insurance for her. These factors would support an award of need-based alimony. Hank also clearly has the ability to pay, as shown by the testimony at trial. On the other hand, Cindy was awarded $1 million in cash. We have now held that she is entitled to approximately $4.16 million in stock in the closely-held corporations. As the circuit court said in its original 2011 letter opinion, that is a sufficient estate so that Cindy would not have a “need” for traditional alimony.
|9We cannot say that the circuit court’s decision denying Cindy alimony was made thoughtlessly and without due consideration. Thus, it was not an abuse of discretion.
Finally, Cindy argues that the circuit court abused its discretion in failing to award her attorney’s fees for the work done on appeal in Farrell II. Cindy sought approximately $18,000 in attorney’s fees. Hank argues that the circuit court lacked jurisdiction to award fees because the re mand from Fart'ell II was a limited one, and we did not designate attorney’s fees as one of the issues for the circuit court to clarify. The circuit court ruled, without explanation, that each party was to bear his or her own fees and costs.
Hank is correct. We did not discuss fees as an issue for the remand from Farrell II. We have held that a trial court was without authority to award attorney’s fees following an appeal where the additional fees on appeal were not awarded by the direction of the appellate court, were not of a ministerial nature in following the appellate mandate, and were for services of the prevailing party’s attorney on appeal. Nat’l Cashflow Sys., Inc. v. Race, 307 Ark. 131, 817 S.W.2d 876 (1991).
Affirmed in part; reversed in part; and remanded.
Harrison and Vaught, JJ., agree.
. Farrell v. Farrell, 2014 Ark. App. 601, 2014 WL 5757922 (Farrell II); Farrell v. Farrell, 2013 Ark. App. 23, 425 S.W.3d 824 (Farrell I).
. We note that the circuit court’s findings on remand from Farrell II attempted to rely on the fact that coal prices (one of the businesses of the Farrell-Cooper Companies) had fallen since the trial in 2011 to justify an unequal division of the marital property. However, such hindsight cannot use subsequent events to alter the value of the marital property that existed as of the date of the divorce. See Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 768 (2001). | [
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DAVID M. GLOVER, Judge
| tAppellant Anthony Gordin was convicted in the Pulaski County Circuit Court of possession of a controlled substance (marijuana) with intent to deliver and placed on probation for a period of three years. Gor-din’s sole argument on appeal is that the trial court erred in denying his motion to suppress the statement he made when asked what a parcel delivered to him by a postal inspector contained. We affirm the denial of Gordin’s motion to suppress.
Extensive testimony by two law-enforcement officers was presented at trial. Mickey Schuetzle, an inspector for the United States Postal Inspection Service, testified as follows. His job entailed working narcotics cases originating in the mail stream. On October 24, 2013, a package from Chino, California, was to be delivered to Gor-din in North Little Rock at Quality Inn Suites. Schuetzle profiled the package and discovered the return address did not ex ist. He then enlisted the assistance of Investigator James Neeley with the North Little 12Rock Police Department’s narcotics unit in an attempt to make delivery of the package to Gordin. Working undercover, Schuetzle acted as if he were a postal supervisor out on a route delivering express mail pieces that had arrived late at the post office. The desk clerk at Quality Inn Suites advised him Gordin was living there; however, there was no answer either when the clerk called Gordin or when housekeeping knocked on his door. Schuet-zle left his phone number at the clerk’s desk, and approximately thirty minutes later, he received a call from a man identifying himself as Gordin. Schuetzle told Gor-din he would bring the mail to the hotel as soon as he could and would call when he arrived.
When Schuetzle returned to the hotel, Neeley was already inside the lobby for officer-safety reasons. Schuetzle called Gordin to let him know he was “on his way” and advised Gordin he would need to present some type of identification so that Schuetzle could verify his identity. Gordin came down to the lobby, showed Schuetzle his passport, and signed for the package. After Gordin signed for the package, Schuetzle presented his postal-inspection credentials, advised Gordin he was a federal agent with the United States Postal Inspection Service, and stated he needed to visit with him about the package. Nee-ley came up and identified himself as well. Schuetzle asked Gordin if there was anything inside the parcel that could hurt anyone. In response, Gordin advised Schuetzle and Neeley the parcel contained marijuana. Schuetzle then asked for consent to open the parcel but Gordin refused, stating he did not feel comfortable doing so without his attorney present. Gordin was detained and transported to the North Little Rock Detective Division. A search warrant was executed for the parcel, which contained marijuana.
laSchuetzle further testified express mail is one of the most common ways used to transport illegal narcotics because it is time sensitive, usually overnight. Gordin’s three-pound parcel cost $49.45 to be delivered overnight. Until delivered, a piece of mail is considered to be “live mail” and requires a federal search warrant to be opened. This procedure takes more time than obtaining a state warrant. Therefore, a lot of investigations are handled as “knock and talks,” because if the parcel is late, it sends a red flag to the person receiving it. Once a package has been delivered, it is no longer “live mail,” and a state search warrant can be issued for the package. Schuetzle offered other factors he considered when investigating illegal narcotics sent through the mail: whether the parcel was mailed at a post office near the return address; whether there was a waiver of signature for receipt of the package, even though the sender has spent $50 sending the parcel; and whether the return address is valid. As Schuetzle explained, while he was suspicious of the package because of the indicators he had discovered, he had no reason to know what was actually in the package because he had not opened it or utilized a drug dog. By his explanation, he has been in situations where he has asked people if there was anything dangerous in the package, and they have told him there was nothing wrong with the contents of the package. In such situations, he has two options—either let the person go, or advise him that he is free to leave, but the package was going to be seized. Schuetzle offered the reasoning that if Gordin had stated there was nothing harmful in the package, he would have been free to go because there would be no reason to detain him; a state search warrant would be obtained and executed on the package; and if there was nothing illegal in the package, it would have been returned to Gordin.
| .(Schuetzle continued that Gordin was not in custody before he asked him what was in the package, and had Gordin taken the package and walked away, Schuetzle probably would have recovered the package because he had reason to believe something illegal was in the package, but Gordin would not have been detained because it was unknown what was in the parcel and thus gave no basis to hold Gordin.
On cross-examination, Schuetzle testified that the “bogus” address from California raised his suspicion about the contents of the parcel, precipitating the fake delivery to have Gordin accept the package. According to Schuetzle, as Gordin started to leave after he had signed for the package, Schuetzle told Gordin to wait, that he needed to talk to him. Schuetzle agreed with Gordin’s counsel—at that time, Gor-din was not free to leave anymore. And it was at that time Schuetzle specifically asked Gordin if there was anything in the package, knowing that if he said marijuana, it would be an incriminating statement. Schuetzle explained that, if he asks, sometimes it leads to consent to search the parcel, which is easier than having to obtain a warrant. Until Gordin said there was something in the box, he did not know if there was anything illegal in the box. He did not have probable cause to obtain a warrant. However, after Gordin stated there was marijuana in the package, Schuetzle then had the probable cause he needed to obtain a search warrant. Schuet-zle admitted he had not read Gordin his Miranda rights when he asked Gordin about the contents of the box; however, he stated that Gordin was not required to answer his question and tell him what the box contained.
|BNext, Investigator Neeley offered the following testimony. For Schuetzle’s safety, he was present and in close proximity at the hotel for the package delivery. He watched Gordin come to the lobby, Schuet-zle make contact with Gordin, Gordin present identification to Schuetzle, Gordin sign for the package, and Schuetzle present his credentials to Gordin. He stepped closer to them after Schuetzle presented his credentials because he knew Schuetzle was about to ask Gordin for consent to open the package. He had a consent-to-search form with him. He had no idea what the package contained, but he heard Schuetzle ask about the contents of the package. He heard Gordin’s answer. Gordin was not in custody. After Gordin told both officers the package contained marijuana, Schuetzle asked for consent to open the package. When Gordin refused consent, he was not free to leave because he had told them the package contained marijuana, an illegal controlled substance. Neeley stated Gordin was not walking away when Schuetzle asked about the contents of the package.
Felisia Lackey, the chief forensic drug chemist at the Arkansas State Crime Lab, testified she determined the substance in the package was marijuana. She stated there were five separate bags of marijuana with a total gross weight of 1,053.9 grams.
In arguing to the trial court that his statement about the contents of the package should be suppressed, Gordin pointed to Schuetzle’s testimony that Gordin was not free to leave after signing for the package because Schuetzle wanted to ask him a question and the fact Gordin had not been advised of his Miranda rights prior to answering Schuetzle’s question. Although Neeley testified Gordin was free to leave until he told the officers the package contained marijuana, Gordin contended Schuetzle’s testimony was more credible. The State countered |Bthis argument as follows. There was nothing wrong with officers asking questions to any person willing to answer them, so long as it was not in a custodial fashion and did not rise to the level of a seizure. The State pointed out: Schuetzle presented Gordin with the package in the open lobby of a hotel; Gor-din accepted the package; Gordin was presented with agent credentials; and Gordin was asked about the contents of the package. The State argued law-enforcement officers are allowed to ask for cooperation, and it was Gordin’s answer, not the asking of the question, that “snowballed” the case. The trial court denied Gordin’s motion to suppress.
On appeal, Gordin argues the trial court erred in denying his motion to suppress the statement he made to Schuetzle because he was not free to leave when Schuetzle asked him if there was anything in the package that would be dangerous to anyone, and Schuetzle did not advise him of his Miranda rights. In reviewing a circuit court’s denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the circuit court and proper deference to the circuit court’s findings. Duke v. State, 2016 Ark. App. 402, 2016 WL 4916834. We reverse the circuit court’s ruling only if it is clearly against the preponderance of the evidence, giving deference to the circuit court’s credibility and weight-of-the-evidence determinations, Fowler v. State, 2015 Ark. App. 232, 459 S.W.3d 837.
Miranda safeguards are applicable as soon as a suspect’s freedom is curtailed to a degree associated with a formal arrest; a person is “in custody” for purposes of Miranda warnings |7when deprived of freedom by formal arrest or the restraint on freedom of movement of the degree associated with a formal arrest. Id. In determining whether a person was “in custody” at a particular time, the relevant inquiry is how a reasonable man in the suspect’s shoes would have understood his situation. Id.
Rule 2.2 of the Arkansas Rules of Criminal Procedure provides:
(a) A law enforcement officer may request any person to furnish information or otherwise cooperate in the investigation or prevention of crime. The officer may request the person to respond to questions, to appear at a police station, or to comply with any other reasonable request.
(b) In making a request pursuant to this rule, no law enforcement officer shall indicate that a person is legally obligated to furnish information or to otherwise cooperate if no such legal obligation exists. Compliance with the request for information or other cooperation hereunder shall not be regarded as involuntary or coerced solely on the ground that such a request was made by a law enforcement officer.
We affirm the trial court’s denial of Gor-din’s motion to suppress based on Rule 2.2. At the time Gordin answered Schuetzle’s question regarding what the delivered package contained, Gordin was not under formal arrest; neither was his freedom of movement restrained to the extent of a formal arrest. Although Schuetzle did make the statement Gordin was not free to leave, Neeley testified Gordin was free to leave and not answer the question. It was only when Gordin told them it was marijuana that he was no longer free to leave. Gordin argues our court cannot consider Neeley’s testimony over Schuetzle’s testimony; this in incorrect. We give deference to the circuit court’s credibility and weight-of-the-evidence determinations. Fowler, supra.
In support of his argument that his statement should be suppressed, Gordin cites Fowler v. State, 2010 Ark. App. 23, 2010 WL 135209. That opinion was vacated by our supreme court in Fowler v. State, 2010 Ark. 431, 371 S.W.3d 677. However, our supreme court’s holding in that case supports affirming the present case. Fowler was observed around 7:25 a.m, walking through a backyard on private property behind a house. Officers patrolling nearby were concerned he might be truant or had broken into a house. They drove closer to Fowler and asked his name. Fowler began to approach but then blurted out some words and ran off. The officers pursued Fowler, who was eventually apprehended and placed under arrest for fleeing and obstruction of justice, both misdemeanors. After his arrest, it was learned Fowler was on parole. At the request of his parole officers, the police officers held Fowler and interrogated him, during which Fowler admitted he had items in his home that violated the terms of his parole.
Our supreme court held the initial encounter with Fowler (where the officers asked him his name) was constitutionally allowed under Rule 2.2, noting that the officers could certainly approach people in public and ask if they are willing to answer some questions. At the first encounter, Fowler was free to ignore the police and leave, but instead he blurted out some words and ran away when the officers requested his name. Our supreme court further held that the unintelligible response, coupled with running immediately after, constituted the reasonable suspicion required to justify the pursuit and the second stop of Fowler, because when police officers have reasonable suspicion a person may be involved in criminal activity, they may stop the person and briefly investigate further; however, if facts do not rise to the level of probable cause, the individual must be allowed to go on his way. In Fowler, no brief investigation was made after the second stop; instead, Fowler was arrested. Our supreme 19court held that the arrest, rather than a brief investigation to determine if probable cause existed, transformed the second stop into an illegal seizure.
It is unnecessary to analyze the instant case with regard to the second stop in Fowler, as the facts of the case before us do not go that far—it is analogous to the first stop in Fowler, where the officers merely asked Fowler a question, which our supreme court held was appropriate under Rule 2.2. Here, Schuetzle simply asked Gordin a question. It was only after Gordin informed him there was marijuana in the package that Gordin was no longer free to leave. Gordin was not required to answer the question. He could have ignored Schuetzle and walked away. However, he answered the question, and his answer transformed the situation into one where he was not free to leave.
Affirmed.
Abramson and Murphy, JJ., agree. | [
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WAYMOND M. BROWN, Judge
| Appellant appeals from the circuit court’s order granting appellee’s motion to dismiss. His sole argument on appeal is that the circuit court erred in granting appellee’s motion to dismiss after finding a policy provision valid when that provision’s requirement is not part of the statutorily-mandated coverage. We affirm.
I. Facts
On May 27, 2014, appellee issued a policy of automobile insurance to appellant’s grandmother, Sue Johnson. Appellant lived with his grandmother and therefore was covered by her policy with appellee. On November 27, 2014, appellant was a passenger in an uninsured vehicle that was involved in an accident. Appellant did not immediately seek treatment, though he did eventually seek treatment.
|2On March 20, 2015, appellant made a claim for medical benefits under the medical-payments coverage of the policy. Ap-pellee responded on March 26, 2015, advising appellant that it could not determine whether the treatment initiated with Curtis Chiropractic “almost 4 months [after the accident] is reasonable, necessary and solely related to the accident.” Accordingly, it advised appellant that the “terms of the policy require participation in an exam by physicians chosen and paid by us as often as we reasonably may require” and that “[rjefusing our request impairs our ability to determine what benefits are payable[,]” so it could not consider benefits under the medical-payments coverage without appellant’s recorded statement about the accident and an independent medical examination (IME). In a letter dated March 30, 2015, appellant advised appellee that he would be submitting medical bills to be reimbursed.
In a letter dated April 8, 2015, appellee stated of appellant’s actions that:
It is questionable whether there has been compliance with the provision of the policy requiring the assistance and cooperation of the insured, by reason of allegations or evidence of
• insured’s refusal to give pertinent information to the company
• insured’s refusal to assist in investigation
• insured’s refusal to cooperate in giving and securing evidence^]
Appellant was notified by letter dated May 5, 2015, that an IME had been scheduled for him on May 19, 2015. Appellant object ed to the IME by letter dated May 11, 2015, asserting that such an examination “is not required under Arkansas’ med pay statute.” He also enclosed a medical authorization to obtain records from his service providers. | ¡Appellee responded in a letter dated May 12,2015, and advised that the “[s]tatute is silent on the issue of [IMEs], thus not allowing or disallowing them.” It further stated that appellant’s refusal to attend the exam or to delay its scheduling would impair appellee’s ability to determine what benefits were payable and that appellant’s failure to cooperate may cause appellee to deny his medical-payments claim. Appellant did not attend the scheduled IME; therefore, appellee notified him by letter on May 20, 2015, that it was unable to consider any outstanding or future benefits from appellant related to the November 27, 2014 accident.
On August 18, 2015, appellant forwarded medical bills totaling $1,542.00 to appellee for payment. The medical bills were for a visit to NEA Baptist Clinic on December 14, 2014; and visits to Curtis Chiropractic & Wellness Center between March 28, 2015, and May 12, 2015.
Appellant filed a complaint against ap-pellee on September 15, 2015, for breach of contract. The policy was not attached to the complaint. Appellee filed a combined motion to dismiss and answer to appellant’s complaint on October 15, 2015. Therein, appellee sought dismissal of appellant’s complaint as “premature” because he had failed to perform conditions precedent to filing the lawsuit; specifically, appellant had failed to submit to an IME. Appellee also pled affirmatively that appellant had failed to comply |4with the provisions of the policy to allow appellee to consider reimbursement of claimed medical expenses.
Appellant responded to appellee’s motion to dismiss on October 29, 2015, asserting that
Arkansas Code Annotated § 23-89-205 explains that an insurer may exclude the medical payment benefits to an insured when the insured’s conduct contributed to the injury he or she sustained by causing injury to himself intentionally or causing injury while in the commission of a felony or while seeking to elude lawful apprehension or arrest by a law enforcement official. The legislature set forth only these specific exclusions,
Appellant argued that appellee’s policy “provides an additional requirement that the insured must be examined as reasonably often as State Farm may require by physicians chosen and paid by State Farm. This policy was not entered into by plaintiff, but rather by Sue Johnson, plaintiffs grandmother. Thus, plaintiff did not contract this additional term of the policy with defendant,” He therefore argued that appellee’s policy provision created a requirement not found in the statute, that was contrary to legislative intent, and which did not apply to him.
Appellee replied to appellant’s response on November 5, 2015, and noted therein that the policy agreement provided that an insured had a duty to cooperate with ap-pellee and that a person making a claim under medical-payments coverage must be examined as reasonably often as appellee may require by physicians chosen and paid by appellee; that appellee requested an examination of appellant on May 19, 2015, which appellant failed to | ^appear for; and that it subsequently notified appellant that it was unable to consider payment of any outstanding or future claims based on appellant’s refusal to submit to an IME. Ap-pellee asserted that though appellant was contending that he did not enter into the contract and did not bargain for the IME provision, appellant had the same obligations to cooperate with the terms of the policy as if he were a named insured.
On December 15, 2015, appellee filed a motion for summary judgment in which it stated that it was “convert[ing] its Motion to Dismiss into a Motion for Summary Judgment.” In its separate brief in support, filed contemporaneously, appellee restated its arguments from its motion to dismiss, namely that appellant’s complaint should be dismissed as premature where appellant had failed to cooperate with ap-pellee’s investigation. Appellee attached a copy of the policy to its brief in support of its motion for summary judgment. This was the only copy before the circuit court. It further asserted that appellant should not be allowed to seek benefits under its policy of insurance while at the same time arguing that he should not be bound by the provisions of the policy.
Appellant responded on December 28, 2015, by restating his previous argument that the IME requirement was an additional requirement imposed by appellee in its policy, which was contrary to legislative intent, and that his documentation of his medical bills, which he submitted to appel-lee, was sufficient and “reasonable proof of the amount of medical expenses[.]” He also reasserted that he did not enter into the contract and did not | ^contract for the additional requirement of the policy, with the implication appearing to be that the provision should not apply to him.
A hearing was held on the matter on January 16, 2016, at the conclusion of which, the circuit court granted appellee’s motion to dismiss. On January 19, 2016, the circuit court entered an order dismissing the matter without prejudice “as premature due to [appellant’s] failure to cooperate with [appellee’s] investigation of [appellant’s] claims pursuant to the terms of the policy.” This timely appeal followed.
II. Standard of Review
Appellee argues on appeal that the circuit court erroneously granted its motion to dismiss, instead of its motion for summary judgment, and that the correct standard of review for this court is the standard of review for the grant of a motion for summary judgment. This court notes that appellee said below that both motions were “really the same thing” and that the “only purpose” it had in filing the motion for summary judgment was to attach the insurance policy. It is well settled that when a circuit court considers matters outside the pleadings, the appellate court will treat a motion to dismiss as one for summary judgment. Because the actual policy was not attached to appellee’s motion to dismiss and was not attached to any other document prior to and until appel- lee’s motion for summary judgment, it is clear to this court that the circuit court 1^considered matters outside the pleadings in making its ruling. We therefore treat the court’s order as granting a motion for summary judgment.
On appeal, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material question of fact unanswered. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Once the moving party has established prima facie entitlement to summary judgment by affidavits, depositions, or other supporting documents, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party.
III. Statute
Arkansas Code Annotated section 23-89-202 states that “[ejvery automobile liability insurance policy covering any private passenger motor vehicle issued or delivered in this state shall provide minimum medical and hospital benefits ... under policy provisions ... to the named insured and members of his or her family residing in the same | ^household injured in a motor vehicle accident.” Those benefits are to include “[a]ll reasonable and necessary expenses for medical, hospital, nursing ... incurred within twenty-four (24) months after the automobile accident, up to an aggregate of five thousand dollars ($5,000) per person[.]” Arkansas Code Annotated section 23-29-208 states that “[bjenefits for any period are overdue if not paid within thirty (30) days after the insurer received reasonable proof of the amount of all benefits accruing during that period.” Appellee’s policy with appellant’s grandmother provides the above-referenced provisions, which are required to be offered by statute.
Appellant argues that appellee’s medical-payment-coverage provisions constitute an additional exclusion to the policy beyond that intended by the legislature. Arkansas Code Annotated section 23-89-205 states that “[a]n insurer may exclude benefits to any insured, or to his or her personal representative, under a policy required by § 23-89-202, when the insured’s conduct contributed to the injury he or she sustained in any of the following ways: (1) Causing injury to himself or herself intentionally; or (2) Causing injury while in the commission of a felony or while seeking to elude lawful apprehension or arrest by a law enforcement official.” Referring to a predecessor section of an Arkansas statute that | ais virtually identical to what is now Arkansas Code Annotated section 23-89-202, our supreme court has stated “[w]e do not read into this section any legislative intention to prohibit other exclusions from coverage.”
Looking to the language of appellee’s policy with appellant’s grandmother, the following appears under the section headed “Insured’s Duties”:
A person making a claim under:
a. Medical Payments Coverage ... must:
(2) be examined as reasonably often as we may require by physicians chosen and paid by us....
(3) provide written authorization for us to obtain:
(a) medical bills;
(b) medical records;
(c) age, salary, and employment information; and
(d) any other information we deem necessary to substantiate the claim.
It is settled Arkansas law that an insurer may contract with its insured upon whatever terms the parties may agree, so long as those terms are not contrary to statute or public policy. Our law regarding the construction of insurance contracts is well settled. The language in an insurance policy is to be construed in its plain, ordinary, and popular sense. Different clauses of an insurance contract must be read together and the contract construed so that all of its parts harmonize.
Insurance terms must be expressed in clear and unambiguous language. If the language of the policy is unambiguous, we will give effect to the plain language of the policy without resorting to the rules of construction. On the other hand, if the language is ambiguous, we will construe the policy liberally in favor of the insured and strictly against the insurer. Language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one reasonable interpretation. Whether the language of the policy is ambiguous is a question of law to be resolved by the court. The terms of an insurance contract are not to be rewritten under the rule of strict [^construction against the company issuing it so as to bind the insurer to a risk which is plainly excluded and for which it was not paid.
Contrary to appellant’s argument, it is clear from a plain reading of the language of the policy’s “Insured’s Duties” section that the section is not an exclusion, but an outline of the requirements by which an insured must abide when making a claim. Said section provides that appellee may request an IME if necessary to substantiate an insured’s claim. As previously discussed, such a request is not prohibited by statute. We cannot find that it was unreasonable for appellee to request an IME for the purpose of determining if the injuries for which appellant was treated wei’e caused by the November 27, 2014 accident. In Roy v. Farmers & Merchants, our supreme court stated that “ ‘reasonable proof of benefits means more than proof of a charge or loss,” While appellant provided medical bills showing that he had been treated for injuries and the amount thereof, the appellee had a right to question whether such evidence constitutes “reasonable proof’ that the injuries for which he was treated were caused by the November 27, 2014 accident.
Given that appellant waited just under one month to seek initial medical treatment and then waited an additional three months before seeking treatment from a chiropractor, and because appellant failed to undergo the IME—a term of the contract when filing a medical claim—we cannot find that the circuit court abused its discretion in finding that appellant’s lawsuit is premature.
|12We must also address a related argument that appellant makes in his brief before this court:
As indicated previously, State Farm’s policy provides an additional requirement that the insured must be examined as reasonably often as State Farm may require by physicians chosen and paid by State Farm. This policy was not entered into by Tyler, but rather by his grandparents who he was residing with. Thus, Tyler did not contract this additional requirement of the policy with State Farm.
In making this additional argument relating to the alleged impropriety of appellee’s IME provision, appellant implies that he should not have to abide by the provision when he states that he did not enter into the contract with appellee and was not a party to the contract.
The policy under which appellant brings his claim defines “insured” as “you and resident relatives[.]” An insured and an insurer—when the latter has accepted the terms and conditions of a policy with the latter—have “a contract between them, and, being in violation of no principle of law, nor in contravention of the policy of the law, must be enforced according to its terms and meaning; and the courts have the right neither to make contracts for parties nor to vary their contracts to meet and fulfill some notion of abstract justice, and still less of moral obligation.” In Modem Woodmen of America v. Seargeant, our supreme court stated that “[t]he parties made their own contract, which is free from ambiguity, and necessarily must be enforced according to its terms. The beneficiaries must stand in the shoes of the insured, and will be bound by the terms of the | ^policy issued[.]” Appellant cannot seek damages under the contract— his grandmother’s policy through which he is an unnamed insured—and argue that certain terms of the contract should not apply to him because he did not enter into the contract personally.
Affirmed.
Glover and Whiteaker, JJ., agree.
. Appellee stipulated below that appellant was an “insured.”
. Appellant gave a recorded statement on April 16, 2015.
. This visit occurred one month and thirteen days after the accident.
. These visits began four months and nine days after the accident.
. Appellant never expressly stated his cause of action, but he alleged that appellee failed to pay medical payments pursuant to the policy.
. (Emphasis added.)
. (Emphasis added.)
. Appellee's motion to dismiss and reply to appellant’s response to its motion to dismiss were incorporated therein by reference as if fully set forth word for word.
. Appellant never expressly stated in any of his pleadings that the provisions of the policy do not or should not apply to him, only that he was not a party to the contract and did not contract for the additional term.
. Rowe v. Hobbs, 2012 Ark. 244, at 5, 410 S.W.3d 40, 43 (citing Koch v. Adams, 2010 Ark. 131, 361 S.W.3d 817).
. Madden v. Mercedes-Benz USA, Inc., 2016 Ark. App. 45, at 4, 481 S.W.3d 455, 458.
. Id. (citing New Maumelle Harbor v. Rochelle, 338 Ark. 43, 991 S.W.2d 552 (1999)).
. Id.
. Cent. Oklahoma Pipeline, Inc. v. Hawk Field Servs., LLC, 2012 Ark. 157, at 8, 400 S.W.3d 701, 707 (citing Harrisburg Sch. Dist. No. 6 v. Neal, 2011 Ark. 233, 381 S.W.3d 811).
. Ark. Code Ann. § 23-89-202 (Repl. 2014).
. Ark. Code Ann. § 23-89-202(1).
. Ark. Code Ann. § 23-89-208(b) (Repl. 2014) (emphasis added).
. Arkansas Code Annotated section 23-89-203(a) permits an insured to reject one or more of the coverages listed in Arkansas Code Annotated section 23-89-202, including medical and hospital benefits.
. Ark. Code Ann. § 23-89-205(1) & (2) (Repl. 2014).
. Aetna Ins. Co. v. Smith, 263 Ark. 849, 853, 568 S.W.2d 11, 13 (1978).
. (Emphasis in original.)
. Shelter Mut. Ins. Co. v. Goodner, 2015 Ark. 460, at 5, 477 S.W.3d 512, 515 (citing Pardon v. S. Farm Bureau Cas. Ins. Co., 315 Ark. 537, 868 S.W.2d 468 (1994) (citing Aetna Ins. Co. v. Smith, 263 Ark. 849, 568 S.W.2d 11 (1978))).
. Farmers Ins. Exch. v. Bradford, 2015 Ark. App. 253, at 4, 460 S.W.3d 810, 813 (citing McGrew v. Farm Bureau Mut. Ins. Co., 371 Ark. 567, 268 S.W.3d 890 (2007): Elam v. First Unum Life Ins. Co., 346 Ark. 291, 57 S.W.3d 165 (2001)).
. Id. (citing Norris v. State Farm Fire & Cas. Co., 341 Ark. 360, 16 S.W.3d 242 (2000)).
. Id. (citing Philadelphia Indem. Ins. Co. v. Austin, 2011 Ark. 283, 383 S.W.3d 815).
. Corn v. Farmers Ins. Co., 2013 Ark. 444, at 9, 430 S.W.3d 655, 660 (citing Castaneda v. Progressive Classic Ins. Co., 357 Ark. 345, 351, 166 S.W.3d 556, 560 (2004)).
. Id. (citing Castaneda, 166 S.W.3d at 560).
. Id. at 9, 430 S.W.3d at 660-61 (citing Castaneda, 357 Ark. at 351, 166 S.W.3d at 560-61).
. Id. at 9, 430 S.W.3d at 661 (citing Castaneda, 357 Ark. at 351, 166 S.W.3d at 561).
. Id.
. Id.
. 307 Ark. 213, 216, 819 S.W.2d 2, 3 (1991).
. Inter-State Bus. Men’s Acc. Ass’n v. Nichols, 143 Ark. 369, 374, 220 S.W. 477, 478 (1920) (quoting Standard Life & Acc. Ins. Co. v. Ward, 65 Ark. 295, at 298, 45 S.W. 1065, 1066; citing Maryland Casualty Co. v. Chew, 92 Ark. 276, at 283, 122 S.W. 642; Amer. Nat'l Ins. Co. v. Otis, 122 Ark. 219, 183 S.W. 183 (1916)).
. Modern Woodmen of Am. v. Seargeant, 188 Ark. 1098, 1102, 69 S.W.2d 397, 399 (1934) (quoting Craig v. Golden Rule Life Ins. Co., 184 Ark. 48, 41 S.W.(2d) 769, 771 (1931); Mutual Life Ins. Co. v. Hynson, 171 Ark. 218, 283 S.W. 357 (1926)). | [
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BRANDON J. HARRISON, Judge
11 A.W. appeals his delinquency adjudication based on possession of drug paraphernalia and argues that the State failed to present sufficient evidence to support the adjudication. He also argues that the circuit court erred in denying his motion to suppress a statement given to his principal and a sehool resource officer. We hold that A.W.’s arguments are not preserved for our review and affirm.
On 17 November 2015, the State filed a petition for adjudication of thirteen-year-old A.W. for possession of drug paraphernalia in violation of Ark. Code Ann. § 5-64-443(a)(l) (Repl. 2005). That subsection provides that a person who possesses drug paraphernalia with the purpose to use the drug paraphernalia to inject, ingest, inhale, or otherwise introduce into the human body a controlled substance is guilty of a Class A misdemeanor. Id.
|2The circuit court held a delinquency hearing on 20 January 2016. Jennifer Fee-ny, the assistant principal at A.W.’s school, testified that she knew A.W. and that an incident occurred with him on 22 October 2015. Feeny said that she met with A.W. after he had been brought to her office for texting during a school assembly. She explained that she questioned him about what he was texting, which “led to further discussion,” and A.W. admitted taking a “medication” from another student. After that admission, Feeny searched A.W.’s backpack and found a plastic Gatorade bottle that had been reconfigured, and A.W. said that it was a bong. Feeny stated that the principal, Mr. Mitchell, was also in the room, but she did not recall whether an officer was also in the room. Feeny testified that A.W. was suspended for eight days. She also said that A.W. was a very good student and that she was surprised to find that in his backpack.
On cross-examination, Feeny confirmed that there is an officer at the school, typically in full uniform, but again said she did not remember if the officer was present on October 22. Feeny also explained that she called A.W.’s mother immediately after talking to A.W. and searching his backpack and that A.W. was not free to leave her office while she was questioning him. After finding the bong, Feeny said, she notified A.W.’s mother and Officer Richison, who is a police officer employed by the Van Bu-rén School District. She also said that she had A.W. write out a statement of what had happened.
On redirect, Feeny explained that the school district has a search policy that allows school officials to search a student’s bag if any issue regarding drugs or weapons is raised. She said that the policy is contained in the student handbook that both parents and students sign and return to the school,
| ¡¡Corporal Duane Richison testified that he was the school resource officer at A.W.’s school. He explained that he remembered the incident involving A.W. but did not remember whether he was in the room when A.W.’s backpack was searched. According to Richison, he spoke to A.W. after the drug paraphernalia had been found, and A.W. said that he had smoked marijuana before with that bong. Richison said he could smell burnt residue of marijuana in the bottle and that the bottle had been seized by him and entered into evidence at the police department.
On cross-examination, Richison said he did not believe he asked A.W. any questions prior to his mother’s arrival. Richison also confirmed that A.W. was not read his rights while being questioned by the vice principal. Richison said that he was present when A.W. wrote his statement.
The State rested its case, and A.W.’s counsel moved to dismiss, arguing that
the State has not shown beyond a reasonable doubt that my client is guilty of the possession of drug paraphernalia based on essentially what we claim is inadmissible evidence. So conveniently both the administrator and the officer seem not to remember whether the office[r] was present during this line of questioning that took place in the principal’s office.... His mother was never called. No Miranda was ever given. It’s very possible the officer was there in full uniform while all of this was going on. The search took place, there was questioning, there was a written statement, during none that was it—-was his mother ever called.... Obviously he wasn’t free just to get up and walk out, so I do believe it was a custodial situation.... His mother wasn’t called until after the search, the questioning, the written statement. Judge with that we’d just argue that this is a violation of Miranda, violation of his fourth amendment rights. We’d ask that all that evidence be excluded and ... that you suppress any statements these witnesses have made regarding any of that information. We would renew our motion to dismiss.
The State countered that the school had acted pursuant to its search policy and that A.W. brought the paraphernalia onto school grounds. The motion to dismiss was denied.
14A.W. testified that on the morning of the incident, Coach Wolfe saw him texting and took him to Officer Richison’s office. Richison asked him about the pill he had taken and who he was texting, then took him to Ms. Feeny’s office. A.W. said that Ms. Feeny, the principal, and Officer Ri-chison were in the office at the time of the search. A.W. stated that they never asked if he wanted to have his mother present and never read him any sort of rights. He said that he wrote out a statement because they told him to. On cross-examination, the State introduced the statement and asked A.W. to read it aloud. In the statement, A.W. said that the Gatorade bottle/bong belonged to another boy and that he (A.W.) was “holding it for him.” A.W. confirmed that the bottle was in his backpack and that he knew it was used to smoke weed.
A.W.’s counsel renewed the motion to dismiss “on grounds that [the] State hasn’t been able to show its case beyond a reasonable doubt based on lack of admissible evidence.” Counsel urged that “[sjchool administrators were used as an agent of law enforcement and it’s in violation of [my] client’s rights.”
The court found that A.W. was delinquent as defined by the juvenile code based on possession of drug paraphernalia. As to AW.’s statement, the court stated,
[I]t doesn’t appear that there’s any evidence before the Court that statement was used by anyone for any purpose except for the school as it was actually written after the search. The Court finds the questioning was shown to be not initiated by law enforcement and not persuaded that there was law enforcement involved as far as initiating the questioning. There’s no testimony or evidence that was part of the process. There’s no evidence here that there’s coercion as a result of the presence of the law enforcement officer other than the arguments here. And that presences [sic] alone of law enforcement is not enough to implicate State action that would require Miranda, The Court finds the school has an absolute right to conduct searches for protection of students and there’s no showing here that any of this search was as a result of officer action or State action.
| (¡Via a written order entered 21 January 2016, A.W. was placed on six months’ probation and required to comply with the terms of that probation, as well as complete twenty hours of community service. A.W. has timely appealed the adjudication to this court.
While a delinquency adjudication is not a criminal conviction, it is based on an allegation by the State that the juvenile has committed a certain crime. A.D. v. State, 2015 Ark. App. 35, 453 S.W.3d 696. Our standard of review is the same as it would be in a criminal case, that is, whether the adjudication is supported by substantial evidence. Id. Substantial evidence is evidence, direct or circumstantial, that is of sufficient force and character to compel a conclusion one way or the other, without speculation or conjecture. Id. In considering the evidence presented below, we will not weigh the evidence or assess the credibility of witnesses, as those are questions for the fact-finder. Id.
For his first point, A.W. argues that the circuit court erred in denying his motion to dismiss. He asserts that there was no evidence that he possessed the drug paraphernalia with the intent to use it for entering a controlled substance into his body. However, A.W. did not make this argument below; at the hearing, A.W.’s counsel argued that A.W.’s statement should be suppressed and that there was insufficient evidence due to a lack of admissible evidence. Counsel never asserted to the circuit court that a relevant portion of the statute had not been proved. This court will not consider arguments raised for the first time on appeal; thus, a party cannot change the grounds for an objection on appeal and is bound by the scope and nature of his arguments made at trial. C.L. v. State, 2012 Ark. App. 374, 2012 WL 1943623. Because A.W. failed to raise the argument he now makes on appeal to the circuit court, we hold that it is not preserved for our review.
|fiFor his second point, A.W. argues that the statements he gave should be suppressed because he was not Mirandized and his parents were not present. Again, we hold that A.W.’s argument is not preserved for our review. A review of the record reveals that no motion to suppress was made prior to the hearing or during the State’s case-in-chief; the issue was not raised until after the State had rested. This is not sufficient to preserve the issue for appeal. See Reep v. State, 2015 Ark. App. 662, 476 S.W.3d 210 (holding that suppression argument was not preserved when defendant did not make an oral motion until the State had rested); Cole v. State, 68 Ark. App. 294, 6 S.W.3d 805 (1999) (same). Likewise, Ark. Code Ann. § 9—27—325(f) (Repl. 2015) provides that, except as otherwise provided in the juvenile code, the Arkansas Rules of Criminal Procedure shall apply to delinquency proceedings, and Ark. R. Crim. P. 16.2 (2016) states that absent good cause, a motion to suppress shall be “timely filed but not later than ten days before the date set for the trial of the case,” which did not occur here.
Affirmed.
Klappenbach and Whiteaker, JJ., agree. | [
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JOSEPHINE LINKER HART, Associate Justice
| ¶ Appellants, Protect Fayetteville, ⅛ Repeal 119; Paul Sagan; Peter Tonnes-son; and Paul Phaneuf, appeal from the circuit court’s decision finding that the passage of Ordinance 5781 by the Fayette-ville City Council, entitled “An Ordinance To Ensure Uniform Nondiscrimination Protections Within The City of Fayette-ville For Groups Already Protected To Varying Degrees Throughout State Law,” did not violate Act 137 of 2015,12the Intrastate Commerce Improvement Act, codified at Ark. Code Ann. § 14-1-401 to -403 (Supp. 2015). We reverse and remand.
On February 24, 2015, Act 137 was approved without an emergency clause. The effective date of all acts without an emergency clause or a specified effective date was July 22, 2015. Arkansas Code Annotated section 14-1-402 provides as follows:
(a) The purpose of this subchapter is to improve intrastate commerce by ensuring that businesses, organizations, and employers doing business in the state are subject to uniform nondiscrimination laws and obligations, regardless of the counties, municipalities, or other political subdivisions in whicl) the businesses, organizations, and employers are located or engage in business or commercial activity.
(b) The General Assembly finds that uniformity of law benefits the businesses, organizations, and employers seeking to do business in the state and attracts new businesses, organizations, and employers to the state.
In sum, the General Assembly’s stated purpose for passage of the Act was to improve intrastate commerce by ensuring that various entities in the state are subject to uniform nondiscrimination laws. Arkansas Code Annotated section 14-1-403 provides as follows:
(a) A county, municipality, or other political subdivision of the state shall not adopt or enforce an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law.
(b) This section does not apply to a rule or policy that pertains only to the employees of a county, municipality, or other political subdivision.
On June 16, 2015, the Fayetteville City Council passed Ordinance 5781. The Ordinance notes that various laws, including the Civil Rights Act, the Arkansas Civil Rights Act of 1993, and the Arkansas Fair Housing Act, provide “Fayetteville citizens with protections against discrimination on the basis of race, ethnicity, national origin, age, sex, religion and disability.” The Ordinance further notes that the Arkansas General Assembly “has determined that attributes such as ‘gender identity’ and ‘sexual orientation’ require protection,” citing Ark. Code Ann. § 6—18—514(b)(1) (Repl. 2013), which is a statute [.¡addressing antibullying policies in public schools. The Ordinance provides that the “protected classifications” in the antibully-ing statute “for persons on the basis of gender identity and sexual orientation should also be protected by the City of Fayetteville to prohibit those isolated but improper circumstances when some person or business might intentionally discriminate against our gay, lesbian, bisexual and transgender citizens.”
As its stated purpose, Ordinance 5781 provides,
Since Federal and State law already protect citizens from most discrimination, the Uniform Civil Rights Protection Article shall extend existing protections to lesbian, gay, bisexual, and transgender citizens and visitors as recognized elsewhere in state law.
(emphasis added). The Ordinance defines “gender identity” as “an individual’s own, bona fide sense of being male or female, and the related external characteristics and behaviors that are socially defined as either masculine or feminine.” It defines “sexual orientation” as “heterosexuality, homosexuality or bisexuality by practice, identity or expression.” In setting out a “discrimination offense,” Ordinance 5781, in pertinent part, provides as follows:
The right of an otherwise qualified person to be free from discrimination because of sexual orientation and gender identity is the same right of every citizen to be free from discrimination because of race, religion, national origin, gender and disability as recognized and protected by the Arkansas Civil Rights Act of 1993.
The Ordinance set a special election on September 8, 2015, for the voters to enact or reject the Ordinance. According to the Ordinance, on approval by the voters, the Ordinance would be enacted into the Fay-etteville Code and become effective 60 days after the approving election.
|4On August 31, 2015, appellants began their litigation by filing a complaint and a motion for declaratory judgment. The circuit court denied appellants’ motion for an emergency temporary restraining order that would have prohibited the special election. On September 8, 2015, the Ordinance was approved by the voters. The circuit court subsequently denied appellants’ motion to stay the Ordinance from going into effect. The State of Arkansas intervened in the lawsuit.
Following a hearing, the circuit court entered an order granting in part and denying in part appellees’ motion for summary judgment. The court further denied the cross-motions for summary judgment by appellants and the State. In the section of the order pertinent to this appeal, the circuit court found that Ordinance 5781 did not violate Act 137. In its analysis, the court noted that Act 137 prohibited the adoption or enforcement of an ordinance that created a protected classification on a basis not contained in state law. The court stated that Arkansas Code Annotated section 6-18-514, the statute on antibullying policies in public schools, contained “[p]ro-tected classifications” that included “gender identity and sexual orientation.”
The antibullying statute, we note, defines an “attribute” as “an actual or perceived personal characteristic including without limitation race, color, religion, ancestry, national origin, socioeconomic status, academic status, disability, gender, gender identity, physical appearance, health condition, or sexual orientation.” Ark. Code Ann. § 6—18—514(b)(1). The statute prohibits the “bullying” of a public school student or public school employee, and defines “bullying,” in part, as “the intentional harassment, intimidation, humiliation, ridicule, defamation, or threat or incitement of violence by a student against another student | sor public school employee by a written, verbal, electronic, or physical act that may address an attribute of the other” student or public school employee. Ark. Code Ann. § 6-18-514(b)(2).
The circuit court also noted that the Arkansas Domestic Peace Act provided that shelters for victims of domestic abuse were required to “[djevelop and implement a written nondiscrimination policy to provide services without regard to race, religion, color, age, marital status, national origin, ancestry, or sexual preference” Ark. Code Ann. § 9-4-106(1) (Repl. 2015). The circuit court further noted that a statute in the Vital Statistics Act provides that, on receipt of a certified copy of a court order “indicating that the sex of an individual born in this state has been changed by surgical procedure and that the individuars name has been changed, the certificate of birth of the individual shall be amended accordingly.” Ark. Code Ann. § 20-18-307(d) (Repl. 2014).
The court noted that appellees argued that, in view of these three statutes, gender identity and sexual orientation were already protected classifications on bases contained in state law, and therefore, Ordinance 5781 did not create any protected classifications in violation of Act 137. The circuit court noted that, in response, appellants and the State argued that the only protected classifications to be considered are those set out in the Arkansas Civil Rights Act and that gender identity and sexual orientation are not protected classifications under that Act.
In its analysis, the court observed that the Arkansas Civil Rights Act is not mentioned in Act 137. The court concluded that Act 137 does not state that Arkansas’s municipalities are prohibited from creating a protected classification on a basis not contained in the |fiArkansas Civil Rights Act but instead are prohibited from creating a protected classification “on a basis not contained in state law.” The court concluded that the classifications of gender identity and sexual orientation are classifications of persons protected on bases contained in state law, and therefore Ordinance 5781 does not create a protected classification on a basis not contained in state law in violation of Act 137.
The court further noted that the parties disagreed about the meaning of the word “basis” contained in Act 137. Appellants and the State asserted that, considering the Act’s purpose, “basis” referred to the area of law in which a prohibition or discrimination is contained, such as discrimination in the area of employment law. Ap-pellees, however, contended that the word means the reason why a person is discriminated against, such as his or her gender identity or sexual orientation. The court agreed with appellees and observed that the Act does not state that a municipality cannot adopt or enforce an ordinance that prohibits discrimination in the area of employment law.
The court concluded that, in compliance with Act 137, Ordinance 5871 prohibits discrimination on bases already contained in state law, and therefore, Ordinance 5871 does not violate Act 137. The court further concluded that because the Ordinance does not violate the Act, “the court need not address the constitutionality of Act 137.” The court granted summary judgment to appellees and denied the appellants’ and the State’s cross-motions for summary judgment. The only claim on which appellants were granted summary judgment was appellees’ claim that appellants did not have standing to bring the challenge. This appeal followed.
[7On appeal, appellants and the State challenge the circuit court’s ruling that Ordinance 5781 does not violate Act 187. In its brief, the State argues that, to advance the Act’s purpose of uniformity, the General Assembly precluded municipalities from adopting or enforcing an ordinance that creates a protected classification or prohibits discrimination on a basis not contained in state law. The State argues that the Act does not address specific persons or groups; rather, it requires that the decision to prohibit any, some, or all discrimination because of any particular personal characteristic be accomplished at the state level and be uniform throughout the state. The State asserts that the Act is an expression of the General Assembly’s decision that determinations of protected classes and application of particular discrimination laws to such groups be decisions made at the state level and enforceable statewide in order to avoid a patchwork of different local rules and standards. The State contends that the Ordinance violates the Act by extending discrimination prohibitions to cover sexual orientation and gender identity. The State observes, “By essentially adding sexual orientation and gender identity to the list of protected classifications in the Arkansas Civil Rights Act, the Fay-etteville Ordinance created two new protected classifications and thereby violated the Intrastate Commerce Improvement Act.” Further, the State challenges the appellees’ reliance on the antibullying statute, the Arkansas Domestic Peace Act, and the Vital Statistics Act. On appeal, the appellants adopt the State’s arguments.
In response, appellees argue that Fay-etteville voters enacted discrimination protections that are not new but instead have been in place in state law. Appellees assert that the Act limited its preemptive effect to an ordinance that attempted to create a protected classification unknown and unrecognized in state law. Appellees contend that because state | Rstatutes have already created and referred to a protected classification for both sexual orientation and gender identity, the Ordinance did not create a protected classification. Appellees cite to the provisions discussed above in the antibullying statute, the Arkansas Domestic Peace Act, and the Vital Statistics Act. Further, appellees observe that Act 137 does not preclude creation of a protected classification or prohibiting discrimination on a basis not contained in the Arkansas Civil Rights Act, but instead says “on a basis not contained in state law.”
The question presented to this court is the meaning of Act 137 and its application to Ordinance 5781. We review issues of statutory construction de novo. Harris v. City of Fort Smith, 366 Ark. 277, 280, 234 S.W.3d 875, 878 (2006). In considering the meaning and effect of a statute, this court construes it just as it reads, giving the words them ordinary and usually accepted meaning in common language. Id., 234 S.W.3d at 878. When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Id., 234 S.W.3d at 878. When a statute is clear, it is given its plain meaning, and this court will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used. Id., 234 S.W.3d at 878.
In this case, the General Assembly expressly stated the intent. Act 137 sets out its purpose as “ensuring that businesses, organizations, and employers doing business in the state are subject to uniform nondiscrimination laws and obligations.” Ark. Code Ann. § 14-l-402(a). Thus, the express purpose of Act 137 is to subject entities to “uniform nondiscrimination laws and obligations.” The General Assembly noted the beneficial effect of the “uniformity of law.” In keeping with the statute’s goal of uniform nondiscrimination | nlaws and obligations, the General Assembly precluded municipalities from adopting or enforcing an ordinance that “creates a protected classification or prohibits discrimination on a basis not contained in state law.” Ark. Code Ann. § M-l-dOSCa). “This court is very hesitant to interpret a legislative act in a manner contrary to its express language.” Cave City Nursing Home v. Ark. Dept. Human Servs., 351 Ark. 13, 21-22, 89 S.W.3d 884, 889 (2002). Thus, consideration must be given to whether, in applying Act 137 to Ordinance 5781, it can be said that the Ordinance violates the Act. Here, in defining a “discrimination offense,” the Ordinance provides that the “right of an otherwise qualified person to be free from discrimination because of sexual orientation and gender identity is the same right of every citizen to be free from discrimination because of race, religion, national origin, gender and disability as recognized and protected by the Arkansas Civil Rights Act of 1993.” The Ordinance specifically states that its purpose is to “extend” discrimination to include “sexual orientation and gender identity.” In essence, Ordinance 5781 is a municipal decision to expand the provisions of the Arkansas Civil Rights Act to include persons of a particular sexual orientation and gender identity. This violates the plain wording of Act 137 by extending discrimination laws in the City of Fayetteville to include two classifications not previously included under state law. This necessarily creates a nonuniform nondiscrimination law and obligation in the City of Fayetteville that does not exist under state law. It is clear from the statutory language and the Ordinance’s language that there is | ina direct inconsistency between state and municipal law and that the Ordinance is an , obstacle to the objectives and purposes set forth in the General Assembly’s Act and therefore it cannot stand.
Moreover, the statutes cited by the circuit court, the antibullying statute, the Arkansas Domestic Peace Act, and the Vital Statistics Act, are unrelated to nondiscrimination laws and obligations and do not create protected classifications or prohibit discrimination on some basis. Rather, in their respective contexts, these statutes (1) provide a nonexclusive list of attributes on which a public school student or public school employee may not be bullied at school; (2) ask domestic-abuse shelters to develop their own nondiscrimination policies; (3) and permit the amendment of birth certificates. Accordingly, we hold that the circuit court erred in ruling that Ordinance 5781 did not violate Act 137.
We recognize that in this appeal the State further argues the constitutionality of Act 137. That issue, however, was not addressed by the circuit court. Issues unresolved by the circuit court are not preserved for appeal. Priest v. Polk, 322 Ark. 673, 686, 912 S.W.2d 902, 909 (1995).
Reversed and remanded.
. We note that the phrase "on a basis not contained in state law” modifies both the phrase "protected classification" and the phrase "prohibits discrimination.” As one authority has stated, "When there is a straightforward, parallel construction that involves all nouns or verbs in a series, a prepositive or postpositive modifier normally applies to the entire series.” Antonin Scalia & Bryan A. Gamer, Reading Law: The Interpretation of Legal Texts 147 (2012).
. Appellees question whether the State may remain in the case as an intervenor, in view of the circuit court's decision not to rule on the constitutionality of Act 137, which was the State’s asserted reason for intervention. Ap-pellees, however, did not challenge in the circuit court the State's presence in the lawsuit below, nor did it file a notice of cross-appeal. Consequently, we decline to address this issue. Landers v. Stone, 2016 Ark. 272, at 5, 496 S.W.3d 370, 375. | [
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Baker, J.
The appellant filed his suit in the chancery court of Garland county, seeking the construction of a will made by his father, and, upon a determination of the issues against his contentions, this appeal has been prayed.
It may he said in the beginning of our discussion of this case that apparently the appellant has assumed that it is the duty of the appellate court to explore the record and to determine from such exploration if there are errors to justify interference. Such is not the rule. The appellant has the burden, that may not be evaded, of showing that there is error, or. an affirmance should follow.
In this case appellant presents a portion of paragraph seven of the will and asks for our construction or interpretation of that part of the will, without showing its connection with any other portion of it. In fact, from appellant’s abstract we caiinot determine whether there is anything else in the will. That portion presented is as follows:
“The trustee is specifically authorized to make a loan, or to purchase outstanding notes thereon and received the assignment thereof, upon the brick building’ at Chapel and Central avenues, Hot Springs, Arkansas, of wiaicb my son-in-law, David Lockwood, is part owner, in the event that such loan is made thereon, interest notes at the rate of six (6) per cent, per annum, and payable monthly, shall be executed on such advance, one-half of the.proceeds of said notes to accrue directly to my son, Harry Meyer, and the other one-half (%) of the proceeds of said note to accrue directly to my daughter, Flora Lockwood; in order to insure the prompt payment thereof, my trustee is authorized and directed to take a mortgage on said building, in accordance with the usual practice at law, said mortgage, however, shall be renewable from term to term thereof by the mortgagee at his option, and with the concurrence of the trustee.”
The interpretation or construction that appellant places upon this portion of the will is that the word ‘'proceeds,” as it appears in the above-quoted portion must be taken to mean the entire amount of the notes executed as evidence of the money loaned. The rule is that in the construction of wills all parts of it must be construed together, and that construction must be given which will harmonize one part with another when susceptible of such construction. Appellee has set forth a additional portion of the will which seems to be to the effect that it was the intention of the testator to create a trust estate, and that his wife would be supported by the income or proceeds therefrom; that from this trusi estate a loan was to be made upon certain property in Hot Springs, to the son-in-law of the testator and from the proceeds of this loan the wife, one of the beneficiraies in the will, was to be supported during her lifetime, and upon her death these proceeds, or income from this loan should be divided according to the provisions of the will in which division the appellant would receive 50. per cent. The appellee does not set out the whole will, but has set out that part of the same to indicate very clearly, we think, that appellant’s contention, as to that portion of the will copied by him, is not the correct one. Numerous' authorities are cited to show that in testamentary matters the word “proceeds” has frequently been held to indicate income or interest, and, no doubt, it is sus ceptible of tliat meaning ánd should have that interpretation when the context justifies it and, no doubt, only in those cases in which the context indicates a different idea or meaning, should it be given that construction or interpretation.
These remarks are not made by way of interpretation of the will or of any part of it, but more nearly by way of speculation as clearly indicating that appellant may not insist upon a particular construction or interpretation from the meager portion above copied. Some of the authorities in regard to the interpretation of the word “proceeds” in testamentary matters are as follows: Appeal of Roberts, 92 Pa. 407; Appeal of Thompson, 89 Pa. 36; Hunt v. Williams, 126 Ind. 493, 26 N. E. 177; Browning v. Ashbrook’s, Executor, 175 Ky. 755, 195 S. W. 105. Many other authorities are to the same effect.
The foregoing indicate pretty clearly that the trial court may have properly given the interpretation or construction of the portion of the will in controversy, and for that reason the case should he affirmed.
It is also clear that there has been omitted by the appellant and not supplied ’by the appellee the larger part of the will, a stipulation as to the facts, the pleadings, nor is there set forth in this abstract, upon appeal, any statement of the effect of the decree of the trial court, except that it is against the contention of the appellant.
For all these reasons we are impelled to hold there is no error shown. Upon failure to abstract the record under rule 9, the case should be affirmed. It is, therefore, so ordered. | [
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McHaney, J.
Appellant claims title to 80 acres of land in Crittenden county, described as west one-half northeast one-quarter, section 19, 8 north, 6 east, by virtue of a deed from the state, dated June 2, 1939, based on a forfeiture and sale to the state in 1931 for the taxes of 1930. The clerk did not execute his certificate of sale to the state until April 15, 1935, and did not cause same to be recorded in the recorder’s office until three days later, April 18, at which time title vested in the state, as per § 13876, Pope’s Digest. Thereafter, in May, 1936, the state brought suit to confirm its title to this and other land in said county and secured a confirmation decree on June 10, 1937.
Appellee claims title to the same tract of land by virtue of a deed from the St. Francis Levee District dated March 23, 1939. The latter acquired title by a suit to foreclose its lien for levee taxes delinquent for the years 1931, 1932 and 1933, filed January 8, 1935, resulting in a decree therefor on October 9, 1935, and a sale to it on December 9, 1935, which was confirmed by the court on December 20, 1935. Appellee entered into possession of said land presumptively on or about the date of his purchase, March 23,1939.
Appellant who purchased from the state, June 2, 1939, brought this action of ejectment against appellee to recover the possession of said land.on November 8, 1939, in which he set up his claim of title as aforesaid, that it was superior to the title of appellee and alleged á tender of the amount paid by appellee for his deed from the levee district. The answer was a general denial, a plea of act 329 of 1939, under which he claimed the right to redeem, and a tender of the amount paid by appellant for his deed from the state. Trial to the court without a jury resulted in a judgment for appellee, hence this appeal.
Appellant contends that act 329 of 1939 does not help appellee for two reasons: First, that it did not have an emergency clause and did not, therefore, go into effect for 90 days after the adjournment of the Legislature, March 9, 1939, which effective date was after the date of appellee’s deed; and second, that it is not retroactive. We have held that said act is curative and retroactive. Section 2 makes it so in express terms and we so held in Lincoln Nat’l Life Ins. Co. v. Wilson, 199 Ark. 732, 135 S. W. 2d 846. See, also, Mitchell v. Parker, ante p. 177, 143 S. W. 2d 1114. Section 3 of said act 329 .provides : “Where any lands have been, or shall hereafter be foreclosed on by any improvement district for delinquent taxes or assessments due it, and the title to any such lands may have been or is in the state, the purchaser at any sale for such improvement district taxes shall have the right to redeem same from the state. 19
While said act is curative and retroactive in its curative provisions and confers the right on the improvement district tax purchaser to' redeem from the state, it does not confer such right to redeem from one to whom the state has conveyed its title. The state’s title is unquestioned in this lawsuit. It was confirmed in June, 1937. The St. Francis Levee District acquired title, subject to the state’s superior lien for its taxes, and appellee acquired the same title the levee district had, subject to the state’s superior lien, coupled with the right of.redemption, which depended on said act 329, and since said right of redemption did not accrue under said act until its effective date, June 7, he could not redeem from the state as it had already parted with its title. He could have purchased from the state, just as appellant did, and thus have acquired the whole title. His failure to do so .permitted appellant to acquire the superior title and gave him the superior right to the possession, subject to the payment by him of the cost to appellee of the levee district title, with interest.
The judgment will be reversed, and the cause remanded with directions to enter a judgment in accordance with this opinion.
Smith, J., dissents. | [
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Humphreys, J.
This is an appeal from a judgment of the circuit court of Crawford county rendered on the 20th day of May, 1940, dissolving a writ of garnishment issued out of said court and duly served on the Alma Canning Company, impounding $159.82 representing the proceeds of spinach which appellee, W. A. Bushmiaer, Jr., had sold to it, explaining at the time that the spinach was covered by a mortgage executed by ap-pellee to the Northwest Arkansas Production Credit Association on December 15, 1938, and filed in the circuit clerk’s office on March 15, 1939, five days prior to the date of the writ of garnishment was served on the Alma Canning Company.
The writ of garnishment was issued upon a judgment which appellant obtained in a magistrate’s court against appellee for $154.42, a transcript of which had been filed in the office of the circuit clerk after an execution issued out of the magistrate’s court had been returned nulla Iona.
The Northwest Arkansas Production Credit Association filed an intervention claiming the proceeds of the sale of the spinach under and by virtue of its mortgage thereon of date December 15, 1938, and which was duly recorded on March 15, 1939, prior to the issuance and service of the writ of garnishment.
An answer was filed by appellant denying each and every material allegation therein.
The issues were submitted to a jury upon the pleadings, evidence adduced and instructions of the court resulting in a verdict and consequent judgment in favor of appellee as above stated.
Testimony was introduced by appellant tending to show that the mortgage was not bona fide, but given to protect appellee against his creditors; that it was executed and substituted for a mortgage of like amount without consideration in lieu of a mortgage which appellee had theretofore paid and discharged.
Appellee introduced testimony explaining why two mortgages were given instead of one and tending to show that the mortgage which was satisfied had not been theretofore paid, but that the second mortgage was given in good faith as a substitute for the first mortgage which had been satisfied of record.
Appellee testified relative to the $3,600 mortgage filed for record on March 15, 1939, as follows: “I did owe them at this time this amount of money covered by the mortgage, and told Mr. Petree that when I sold him. It was due them and it was my intention to pay it. It was their property and they had a lien on it. They never did waive their lien to me. I still owe the debt. ’ ’
There is no testimony in the record showing that W. B. Wall was the general agent of the Northwest Arkansas Production Credit Association, further than to make loans for it and service the loans he made in Crawford county. He did not have authority to satisfy mortgages for it.
In the course of the trial appellant offered to introduce certain testimony which the court excluded over his objection and exception.
The offered testimony which was excluded is as follows: “The appellant offers to show by the witness, Myers, that sometime after December 22, 1939, the witness Myers went to Fayetteville and discussed with Mr. W. B. Wall, Secretary-Treasurer in charge of the office of the Northwest Arkansas Production Credit Association, in this county, the contents of the W. A. Bushmiaer loan, and that Mr. Wall examined the records in his office and stated to Mr. Myers that Mr. Bush-miaer owed the Production Credit Association nothing by reason of a note or mortgage executed on December 15, 1938, and he had received a check for the amount tied up by garnishment in Crawford county, and that Mr. Bushmiaer owed nothing to the association except the indebtedness of the note dated October 14, 1939, in the amount of $2,300' secured by a chattel mortgage filed October 16, 1939, in Crawford county, Arkansas.”
Appellant also offers to prove that “on December 21st, 1939,1 wrote the Northwest Arkansas Credit Association at Fayetteville and asked to be advised as to whether or not the chattel mortgage given by W. A. Bushmiaer of Crawford county to that association, dated December 15, 1938, and filed March 15, 1939, had been paid; I offer in evidence a carbon copy of a letter which I wrote and I offer in evidence the letter which I received, dated December 22, on the letterhead of the Northwest Arkansas Production Credit Association, signed by W. B. Wall, Secretary-Treasurer, in which he stated: ‘Your letter of December 21st received, we believe the records of the Bushmiaer loan you mentioned will show as satisfied with the Recorder in Yan Burén.’ We offer these two instruments in evidence.”
Appellant also offers in evidence the following letters:
“December 21, 1939
“Northwest Arkansas Production Association
“Fayetteville, Arkansas
‘ ‘ Gentlemen:
“Please advise me whether or not the chattel mortgage given by W. A. Bushmiaer, Jr., of Crawford county to your association, dated December 15, 1938, and filed March 15th, 1939, has been paid.
‘ ‘ Thanking you for this information, t am
“Yours very truly,
“W/v.” “B>. S. "Wilson.”
“Northwest Arkansas Production Credit Association. Serving
Benton, Boone, Crawford, Carroll, Franklin, Johnson, Logan, Madison, Marion, Newton, Sebastian, Searcy, and Washington Counties.
37 East Mountain St.
Phone 1028
“Fayetteville, Arkansas
December 22, 1939
“Mr. R. S. Wilson
“Attorney at Law,
“Van Burén, Arkansas
“Re — W. A. Bushmiaer, Jr., Mortgage.
“Dear Sir: ■■ :
“Your letter of December 21st received. We believe the records of the Bushmiaer loan you mentioned will show as satisfied with the recorder at Yan Burén.
“Yours very truly, ,
“W. B.Wall,
‘ ‘ WBW-p ” “ Secretary-Treasurer. ’ ’
Appellant argued:
(1) That it was error on the part of the trial court to refuse to admit the evidence offered by him tending to show satisfaction of the mortgage relied upon to defeat the garnishment, and,
(2) That the trial court should have held that the in-tervener, Northwest Arkansas Production Credit Association (even if the mortgage in question had not been satisfied) had by its conduct and actions waived the li'en of the mortgage so that the proceeds thereof were subject to garnishment in the hands of the purchaser before payment to the mortgagor or mortgagee.
First: It will be observed that the offered testimony which was excluded had relation to statements made by Mr. Wall to the appellant, Myers, long after all the transactions herein involved had been completed and long after the writ of garnishment had been procured and served. We think it hearsay evidence, and that it was properly excluded from the jury. As stated above, Wall was hot a general agent for the purpose of satisfying mortgages which were executed to the Northwest Arkansas Production Credit Association, and also that the conversations and letters were not made during the course of the transactions, but nearly a year after the transactions and would not be binding upon said corporation. We do not think that the conversations and letters had and made nearly a year after the transactions nor the execution of a new mortgage by appellee to the Northwest Arkansas Production Credit Association in October, 1939, waived its mortgage lien upon the spinach under its mortgage of date December 15, 1938, and filed for record on March 15, 1939.
In other words, we do not think such evidence was admissible as tending to show that the mortgage for $3,600 had been paid nor that the Northwest Arkansas Production Credit Association had waived its lien under said mortgage. The evidence was, therefore, properly excluded by the court.
Second: As to whether the mortgage executed on .December 15, 1938, for $3,600 had been paid was an issue under conflicting testimony which was submitted to the jury and was properly one for the jury to determine. The verdict of the jury is, therefore, binding upon appellant and the evidence was sufficient to sustain the verdict. It is not contended that this issue was submitted to the jury under erroneous instructions. In fact none of the instructions have 'been abstracted, and we must assume they were correct.
No error appearing, the judgment is affirmed. | [
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Gripein Smith, C. J.
The appeal is by Fred Wilson and Ozark Natural Gas Company from judgments aggregating $20,000, as shown in the footnote. Action of Wilson in stopping a truck in such manner as to obstruct the view of the driver of an automobile in which Williams’ intestate and others were passengers is gravamen of the complaint. It is alleged that Wilson was a servant of Ozark Natural Gas Company.
Fleeman Norman, driving his 1929 model “A” coupe, collided with a Ford V-8 driven by an unidentified party. Gertrude Williams received injuries from which she died several weeks later.
Norman had been transporting workers to fields near Lavaca. Just before the collision ten persons were in and on the car — four in the rumble seat, one on each running board, and three with the driver in the front seat.
Highway 22 from Fort Smith to Charleston is intersected by highway 96. At the area of intersection general direction of highway 22 is northwest and southeast. Beginning at a point in the center of highway 22 and proceeding south 135 feet, highway 96 is there shown by a plat to be 29% feet wide, and on the right in a conspicuous place is an official highway “stop” sign. North from this sign the gravel road gradually widens until at the south margin of highway 22 there is, as Norman expressed it, sufficient space for six or seven cars abreast. This “flare” construction is to facilitate traffic. The-plan extends to each side of highway 22.
Norman, traveling north on highway 96 with his nine passengers, stopped when eight to twelve feet south of highway 22, where three got out and others shifted positions. While the coupe was thus stopped near the center of highway 96, Wilson drove up in his truck, to which was attached a trailer loaded with 5-inch well casing. Just where Wilson stopped is not definitely shown, hut from plaintiffs’ witnesses (statements of whom are shown in the fifth footnote) there is no contention that the truck' wheels were more than a few inches on the concrete — although the term “inches” is not-used. Indeed, the inference to he drawn from all declarations is that the tires were away from, or at most only touching, the south side of the paving.
Relieved of the three passengers, Norman says he looked up and down highway 22 the best he could,- then started across the paving in low gear, making perhaps fifteen miles an hour. The truck had not moved when he started, and it was ten feet to his right. It was impossible to see over the iron pipe on the trailer, nor could he see around the truck or over the cab. Although the view, generally, was thus obstructed except for a distance of about twenty feet on Wilson’s side, Norman says he could see between the pipe and the cab 100 to 110 yards east to the top of a hill. In the glance he cast in that direction no car was visible. After having-cleared the median line of highway 22 and almost reaching safety to the north, a Ford V-8 from the east traveling 35 or 40 miles an hour struck Norman’s car near the rear. At that time he had gone north 26 to 30 feet from starting point. From the time he saw the V-8 until it struck his car, Norman covered less than two feet. Instead of trying to slow down, or stop, he “stepped on the accelerator” and “almost made it.”
In the meantime Wilson’s truck had turned to the right on highway 22. When the wreck occurred Wilson stopped and gave assistance, then hurriedly drove to Charleston to direct an ambulance for relief of the injured.
From testimony given by the plaintiffs it appears that Wilson’s only connection with the collision was his conduct in observing directions of the traffic sign. Section 6717, par. (b) of Pope’s Digest is: “The driver of a vehicle may overtake and, allowing sufficient clearance, pass another vehicle proceeding in the same direction either upon the left or upon the right on a roadway with unobstructed pavement of sufficient width for four or more lines of moving traffic when such movement can be made in safety.”
In the case at bar there must have been sufficient clearance for Wilson to pass to Norman’s right, for Norman testified there was a ten-foot space between them. The gravel surfacing of highway 96- was wide enough for four or more lines of moving traffic. This will be conclusively presumed from Norman’s statement that there was room for six or seven cars. Hence, § 6717 par. (b) was not violated.
Section 6722, par. (a) of Pope’s Digest directs that “the driver of a vehicle intending to turn at an intersection shall do so as follows: Both the approach for a right turn and a right turn shall be made as close as practical to the right-hand cu,rb or edge of the roadway. ’ ’
Norman was near the center of highway 96, and Wilson approached highway 22 (where he intended to turn) by keeping “to tbe rigbt-band curb or edge of tbe roadway.” Wilson did not violate tbis provision.
In respect of Norman’s conduct, § 6730, par. (b) of Pope’s Digest is cited. It provides:
“Tbe driver of a vehicle shall likewise stop in obedience to a stop sign as required herein at an intersection where a stop sign is erected at one or more entrances thereto although not a part of a through highway and shall proceed cautiously, yielding to vehicles not so obliged to stop which are ivithm the intersection or approaching so closely as to constitute cm immediate hazard, 'but may then proceed. ’ ’
There was no stop sign on highway 22. The Ford V-8, therefore, had the right-of-way. Yet, with a clear vision of only 20 feet to the east, Norman, without protest from any of the appellants whose duty it was to warn him if his actions were negligent, indifferently drove into a place of peril. Some of the questions asked Norman on cross-examination, and his answers, are shown in the seventh footnote.
There is not, in the entire record, a scintilla of evidence — not a fact, a circumstance, or an inference — upon which to predicate negligence by Wilson. Even the vacuous substance of “such stuff as dreams are made on” is utterly lacking.
It follows that the judgment must he reversed, and the cause dismissed.
“We, the jury, find . . . for Carrie Moore, $5,000; for Ben J. Williams, administrator, for the benefit of the estate of Gertrude Williams, deceased, $10,000; for Ben J. Williams, administrator, for the benefit of Ben J. Williams, $1,500; for Ila Williams, $1,500; for Ruth Burkett, $2,000.”
No. 22 is concrete, 18 feet wide.
No. 96 is gravel, somewhat wider than 22, with ample “shoulders.’.’ It leads from Greenwood to Lavaca, and beyond.
Inasmuch as testimony refers to highway 22 as extending east and west, and to 96 as traversing north-south, these directions will be assumed for the purpose of this opinion.
Ila Williams testified that “. . . a truck pulled up and stopped on the edge of the highway.” On cross-examination she said: “The truck pulled on to the concrete or pretty close to it before it stopped.” Again, she said: “Front wheels of the truck were pretty close to the concrete, or maybe on it.”
Carrie Moore testified: “The truck stopped near the pavement of highway 22.”
Ruth Burkett testified: “A big truck came up and passed [us] on the right and stopped, and blocked [our] view of the highway.” On cross-examination she said: “The truck stopped even with [us] and stayed there, and was still standing there when [we] started up.” Again, she testified: “While [our] car and the truck were standing at the intersection there was ten or twelve feet of intervening space between [us] — the length of a small car.”
Italics supplied.
Q. You started across highway 22 at a time when you only had a 20-foot vision clear to you? A. Down east. Q. You couldn’t see hut 20 feet to the east on the hig’hway, yet you started across it? A. Yes, sir. • Q. You didn’t throw on your brakes? A. No, sir. Q. That was the thing you didn’t do? A. Yes, sir. I never thought about the brakes until I was too far out in there, and— Q. Did it occur to you that maybe the truck had stopped to wait for traffic to get by? A. I never thought anything about it. Q. Did you holler and ask the driver of the truck if there was anyone coming? A. I didn’t think that was any of my business. Q. It didn’t occur to you that maybe he had a reason for standing there waiting? A. No, sir. I didn’t figure anything about that. Q. You waited until you got ready to start across, knowing that you just had a 20-foot vision, according to your statement, and you drove on across there without knowing whether or not there was any traffic coming, did you? A. I was pretty sure there was no traffic coming. I could see through that place [between the cab and the trailer] and didn’t see no glimpse of a cár passing through there. Q. You decided to take a chance on it when you didn’t see any ear through that crack? A. I thought I could go across. Q. You got nearly across before you saw the car? A. I like to have made it and— | [
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G-riffiN Smith, C. J.
Appellant, riding on the back seat of an automobile driven by his brother, was injured when a collision occurred where East Third and Locust streets in North Little Rock intersect. There was substantial evidence to support the jury’s verdict in favor of the Transportation Company.
It is insisted by appellant that Instructions numbered 9, and 9%, given at the request of appellee,, are erroneous. Appellant also urges that a safety ordinance of the city of North Little Rock, two sections of which were introduced over objections, was inadmissible because it is in conflict with statutory pronouncements on the same subject by.the state.
Subdivision “b” of § 64 of act 300, approved March 23, 1937, is: “Approach for a left turn shall be made in that portion of the right half of the roadway nearest the center line thereof and after entering the intersection the left turn shall be made so as to leave the intersection to the right of the center line of the roadway being entered.” 'Section 71 of the same act reads: “The driver of a vehicle within an intersection intending to turn to the left shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard, but said driver, having so yielded and having given a signal when and as required by this act, may make such left turn, and the drivers of all other vehicles approaching the intersection from said opposite direction shall yield the right-of-way tq the vehicle making the left turn.”
Section 2 of the city ordinance directs that “All vehicles approaching an intersection of the public highway with the intention of turning thereat shall, . . . in turning to the left, run beyond the center of such intersection before turning such vehicle to the left.” Section’18 is: “When two vehicles approach one another on the same street going in opposite directions, and the driver of one or both of the vehicles desires to turn off said street, the vehicle which continues on the street in the original direction has the right-of-way over the vehicle turning off.”
There is no practical difference between quoted sections of .the ordinance and the statute. Applying diree- tions of act 300 to the instant case, we have the following situation: Third street runs east and west. Locust street runs north and south. Shipp, traveling’ toward the east, entered the street intersection with an intent to turn left (west) on Locust street. He was required to approach the intersection “in that portion of the right half of the roadway nearest the center line thereof”— the north portion of the south half of Third street. Ap-pellee’s bus, proceeding west on Third street, likewise approached the intersection, or was within the intersection. Section 71 required Shipp to yield to the bus if the latter was “within the intersection or so close thereto as to constitute an immediate hazard.” This meant that Shipp should not have attempted a left turn until the position of the bus ceased to be a hazard.
Section 18 of the ordinance authorized “the vehicle which continues on'the street in the original direction” to anticipate a right-of-way, and this merely means that Shipp should not have turned left in the intersection while the bus was within such intersection or so near it as to constitute an immediate hazard. Section 2 of the ordinance directed Shipp to go beyond the intersection before' turning left. Difference between the legislative act and the Ordinance is that the act required Shipp to delay his turn if the bus was so near as to constitute a hazard. The ordinance gave the bus the right-of-way. The distinction appellant undertakes to draw is more theoretical than real, and goes to the use of terms rather than effect.
Instructions complained of are:
“You are instructed' that, under the provisions of the ordinances of the city of North Little Rock where the accident complained of'-by the plaintiff occurred, it is provided that ‘when two vehicles approaching one another on the samé street--going in opposite directions, and the driver of one of the vehicles desires to'turn off said street, the vehicle which' continues on the street in the original direction has the right-of-way over the vehicle turning off. ’ So in this case if you find that the automobile of the plaintiff and the bus of the defendant were approaching each other' on the' same street, going in op posite directions, and that plaintiff desired to turn off of said street -while the defendant’s bus had the right-of-way over the automobile of the plaintiff; and if the act of plaintiff in turning off of said street contributed to or caused the accident and injury and damage to plaintiff, if you find he sustained any injury and damage, then plaintiff cannot recover and your verdict should be for the defendant.”
“You are instructed that under the provisions of the ordinance of the city of North Little Eock which has been introduced.in evidence it is provided that ‘all vehicles approaching an intersection of the public highway with the intention of turning thereat, shall, ... in turning to the left, run beyond the center of such intersection before turning such vehicle to the left.’ So in this case if you find that the automobile of the plaintiff and the bus of the defendant were approaching each other on the same street or highway, going in opposite directions, and the plaintiff undertook to and did start to turn off of said street into Locust ■ street and to his left and did not run beyond the intersection of s$id street before turning his automobile to the left, and that such act on the part of the plaintiff contributed,to or.caused the injuries and damage he sustained, if any, then plaintiff cannot recover and your verdict will be for the defendant. ’ ’
To each of the instructions appellant objected generally and specifically. As to the first his specific objec tion was: “The instruction is not based on any proper evidence, and [further] is based upon a void ordinance, . . . and because said instruction is incomplete in that it tells the jury that under any and all circumstances the driver intending to turn off of a. street at an intersection shall . . . yield the right-of-way to the other vehicles coming in an opposite direction on such street which do not turn off at such intersection.” ''
Objection to the second instruction was: “It is not based upon any proper evidence, [and, further] is based upon a void ordinance. . . . Said instruction is incomplete in that it tells' the jury that under any and all circumstances the driver intending to turn off a street at an intersection . . . shall ... in turning to. the left run beyond the center of such intersection before turning such vehicle to the left, which is. in conflict with the law of the state, and is void as a result thereof. ’ ’
It is the settled rule in this state that violation of a traffic law, whether promulgated by municipal or state authority, may be shown, but the fact that such'law has been violated at a time and in circumstances which give rise to a contention that injury has been occasioned thereby is not to be asserted as creating liability as a matter of law. Such violation is evidence of negligence, but is not conclusive of the issue. Pollock v. Hamm, 177 Ark. 348, 6 S. W. 2d 541; Mays v. Ritchie Grocer Co., 177 Ark. 35, 5 S. W. 2d 728; Hovley v. St. Louis-San Francisco Ry. Co., 193 Ark. 580, 102 S. W. 2d 845. An instruction directing the jury to fiiidfor or against a plaintiff or defendant on the sole ground that a traffic law has been violated is erroneous. In Carter v. Brown, 136 Ark. 23, 206 S. W. 71, in an opinion written by Mr. Justice Wood, the law was declared to be: “Travelers owe to each other the reciprocal duty of observing [the law of the road], and a failure to exercise ordinary care to observe them, resulting in injury to another, will constitute actionable negligence.” This case was cited in Riceland Petroleum Co. v. Moore, 178 Ark. 599, 12 S. W. 2d 415, with the explanation that the court, in the earlier case, recognized that the rule was not an inflexible one, and that emergencies might arise where, in order to escape from danger to one’s self or to prevent injury to others, it would not only be excusable, but perfectly proper, to temporarily violate the general rule.
In Herring v. Bollinger, 181 Ark. 925, 29 S. W. 2d 676, in an opinion written by Mr. Justice Butler, we said: “It is further insisted that the instruction is objectionable, because it tells the jury to find for .the plaintiff if the' violation of the statute [relating to speed] was the proximate cause of the collision and damage, without. requiring the .jury to find whether the appellant was negligent in failing to comply with the law. We think this objection is well taken, for it was a declaration in effect that violation of a traffic law was per se negligence, whereas violation of the law merely easts upon the appellant the burden of showing that under the circumstances he was acting with ordinary care, notwithstanding the violation of the law.”
Did instructions 9, and 9yz declare, as a matter of law, that violation of the ordinance would bar appellant from recovering, and did it take from the jury the question whether appellant was negligent?
Instruction No. 9, after calling attention to the provisions of § 18 of the ordinance, left to the 'jury’s determination (1) whether the automobile and the bus were approaching each other on the same street; (2) whether they were going in opposite directions; (3) whether the plaintiff desired to turn north on Locust street from East Third; (4) whether, if plaintiff did make such turn, defendant’s bus had the right-of-way, as distinguished from appellant’s right to turn, and in so doing to cut across in front of the bus, and (5) whether plaintiff did, in fact, turn to the left; and, if so, did such act of turning “contribute to or cause the accident.”
Instruction No. 9y2 referred the same considerations, but did not submit whether the bus had the right-of-way.
It is insisted that White Company v. E. J. Thompson Motor Express Company, 182 Ark. 71, 29 S. W. 2d 674, is conclusive of appellant’s position. In that case, however, the court told the jury that if [the truck] was being driven at a lawful rate of speed, and it was the first [of the two motor vehicles involved] to enter the street intersection where the accident occurred, the truck had the right-of-way, “and it was negligence on the part of plaintiff’s driver to drive into the intersection in front of the defendant’s truck. ’ ’ It will be observed that the judge told the jury that the particular act constituted negligence.
The instant case is different in that the court did not tell the jury that violation of the ordinance was negligence per se. The jury-was not told that appellant’s act in turning to the left before reaching the intersection was negligence. It was not told that any particular conduct considered separately from, other elements did in fact occur, or that it did not occur; or that, if the jury found such conduct did or did not occur, it would, or would not, constitute negligence. Stripped to its pertinent parts, the instruction told the jury what the terms of the ordinance were, but the court did not say that a violation of those terms would prevent the plaintiff from recovering damages. It mentioned certain acts, as to the commission of which there was substantial testimony, and then said that if such acts were committed, and “if they contributed to or caused the injuries and damage, if any, then plaintiff cannot recover.”
In Hurley v. Gus Blass Company, 191 Ark. 917, 88 S. W. 2d 850, we said: “Appellant urges that the instruction is inherently wrong, because it contains the words, ‘any degree [of .negligence], however slight.’ The words were correctly inserted in the instruction.This court said in the case of Little Rock & Fort Smith Ry Co. v. Miles, 40 Ark. [at page 322], 48 Am. Rep. 10, that ‘The test of contributory negligence is, did the negligence contribute in any degree to produce the injury complained of.’ ”
We have not overlooked appellant’s urged assignment that the instruction did not include such an expression, as, “And if you further find that appellant was negligent. ’ ’
.. Conformity to the stricter dogmas of technical construction would have been realized if the jury had been expressly directed to find whether plaintiff’s act was one of negligence. But that is exactly what the jury did determine. This determination was made in the light of facts and circumstances which -acquired evidential value because of the substantial nature of the testimony, and they were considered under instructions nob susceptible of misunderstanding.
To reverse this judgment and remand the cause for want of a prescript which could not enlighten the jury by even a shadowy quantum would be placing ritual above substance.
Affirmed.
Humpheeys, Mehaffy and DoNham, JJ., dissent. | [
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PHILLIP T. WHITEAKER, Judge
I!Appellant Matthew Coger was found guilty by a Madison County jury of multiple felony and misdemeanor counts: manufacture of methamphetamine (a Class C felony); possession of drug paraphernalia to manufacture methamphetamine (a Class B felony); possession of drug paraphernalia to ingest methamphetanaine (a Class D felony); being a felon in possession of a firearm (a Class D felony); and acquisition of ephedrine/pseudoephedrine (a Class A misdemeanor). He received an aggregate sentence of twenty-nine years in the Arkansas Department of Correction. On appeal, he challenges the sufficiency of the evidence supporting each conviction. In addition, he raises three other points for reversal, contending that the circuit court erred in (1) denying his motion for mistrial made in response to allegedly improper prosecutorial commentary during closing arguments; (2) refusing to allow [ 2Coger to introduce a recently issued state identification card into evidence; and (3) allowing the State to introduce, pursuant to Arkansas Rule of Evidence 404(b), evidence of Coger’s prior methamphetamine-related conviction. We affirm on all points except Coger’s misdemeanor conviction for acquisition of ephedrine/pseudoephedrine, on which we reverse.
I. Sufficiency of the Evidence
In what is actually his fourth and final point on appeal, Coger challenges the sufficiency of the evidence supporting each of his convictions. We must consider a challenge to the sufficiency of the evidence prior to a review of alleged trial errors due to double-jeopardy considerations. Ressler v. State, 2017 Ark. App. 208, 518 S.W.3d 690. In assessing the sufficiency of the evidence supporting Coger’s criminal convictions, we consider only the proof that supports the verdict. Davis v. State, 2015 Ark. App. 234, 459 S.W.3d 821. We view that evidence and all reasonable inferences deducible therefrom in the light most favorable to the State, and we will affirm if the finding of guilt is supported by substantial evidence. Id. Evidence is substantial if it is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without requiring resort to speculation or conjecture. Id. With the standard of review in mind, we will discuss each of Coger’s arguments on appeal along with the testimony and evidence that were introduced during trial.
|aA. Manufacture of Methamphetamine and Possession of Drug Paraphernalia to Manufacture Methamphetamine
In his first subpoint challenging the sufficiency of the evidence, Coger addresses two of his convictions: those for (1) manufacturing methamphetamine and (2) possession of drug paraphernalia to manufacture methamphetamine. Coger argues that the State failed to prove that he was the person who knowingly or purposely manufactured methamphetamine or possessed the paraphernalia to manufacture methamphetamine. We disagree.
Viewing the evidence in the light most favorable to the State, we set forth the testimony and evidence presented at trial as follows. Chief Mike Harp of the Boston Mountain Solid Waste District was conducting an investigation of purported illegal burning in May 2015 at 192 Madison 5387. As he walked over the property, Harp saw several burn piles or burn barrels that gave him pause. Harp also detected a chemical odor around the burn area. Because he had training in the area of recognizing chemical spills on soil and in vegetation, Harp suspected a methamphetamine lab, and he notified law enforcement.
The Madison County Sheriffs Office obtained and executed a search warrant at 192 Madison 5387, focusing primarily on a pink trailer located on the premises. In the curtilage of the pink trailer, officers searched around a burn barrel and recovered pseudoephedrine packages, the inside of a stripped portion of a battery, lighter fluid, an HCL generator, muriatic acid, Coleman fuel, a Pyrex pie plate, and coffee filters. Inside the trailer, officers found a methamphetamine pipe, syringes, a spoon, plastic baggies, a straw with white residue, a digital scale, syringes, tubing, starter fluid, a funnel, wet coffee filters, and a “wet ball of goo.”
URussell Alberts, a criminal-investigation sergeant with the sheriffs office and a certified methamphetamine-lab technician, helped execute the search warrant. He described some of the ingredients necessary to manufacture methamphetamine: pseudoephedrine, a solvent such as lye, lithium batteries, and an HCL generator to help convert the methamphetamine gas to a solid. Alberts also testified that the wet coffee filters found in the pink trailer indicated that the cook would have been “fairly recent, within a twelve-hour period or less.” Additionally, a forensic drug chemist from the state crime lab testified that the material and residue found in the assorted paraphernalia was, in fact, methamphetamine.
Under Arkansas Code Annotated section 5-64-423(a)(l)-(2) (Repl. 2016), it is unlawful for a person to manufacture methamphetamine, and a person who manufactures methamphetamine in an amount less than two grams by aggregate weight, including an adulterant or diluent, upon conviction is guilty of a Class C felony. The above-described evidence is sufficient to show that methamphetamine was manufactured. Under Arkansas Code Annotated section 5—64—443(b), a person who possesses drug paraphernalia with the purpose to use the drug paraphernalia “to ... manufacture ... a controlled substance that is methamphetamine ... upon conviction is guilty of a Class B felony.” On this charge, the evidence likewise clearly showed that numerous items necessary for the process of manufacturing methamphetamine were found in the trailer, in violation of Arkansas Code Annotated section 5—64—443(b). The issue presented on appeal is whether the State proved that Coger was the person responsible for the manufacturing process.
| ¡¡During the search of the inside of the pink trailer, officers found an Arkansas identification card belonging to Coger that was valid from December 2011 through December 2015. The address on the identification card was that of Coger’s brother’s house, which was located across the street. Officers then began to question Coger’s brother, Mark Turner. Turner testified that no one lived in the pink trailer, but Coger would come out and stay in the pink trailer “here and there.” Turner’s testimony that no one lived in the pink trailer was corroborated by Coger’s sister, Lavena Epling. She said that the pink trailer was used as a storage house and that no one lived there. Lavena stated that Coger would come out to visit from time to time, but she never really kept up with his visits. She did testify, however, that she assumed that Coger had stayed in the pink trailer the night before the trailer was searched because he had been in her house when she went to bed; she fixed Coger breakfast the next morning; and Coger drove their mother’s car to a job site, where he was arrested. Following his arrest, Coger gave a statement in which he denied staying at the trailer where the methamphetamine lab had been discovered, reported that he had been staying in Springdale, and claimed that there was nothing in the pink trailer that belonged to him.
Coger argues that the foregoing evidence is insufficient to convict him. He cites the testimony that indicated he did not frequent the pink trailer where the methamphetamine lab was found; that no one lived there; and that his identification card, which had been found in the trailer and was one of the few things definitively linking him to the trailer, was an old one that he had lost. Coger describes the testimony and evidence as “weak circumstan tial | (¡evidence” of his involvement with the methamphetamine lab. Circumstantial evidence, however, can be sufficient to sustain a conviction when it excludes every other reasonable hypothesis consistent with innocence, Ashley v. State, 2012 Ark. App. 131, 388 S.W.3d 914, While Coger argues that this evidence does not exclude every other reasonable hypothesis, we disagree. More importantly, the question of whether the circumstantial evidence excludes every hypothesis consistent with innocence was for the jury to decide. Id.,
We find Coger’s argument unpersuasive. Lavena’s testimony placed Coger in the trailer the night before his arrest, and the wet coffee filters and the “wet ball of goo” discovered after his arrest indicated that methamphetamine had been recently cooked there. In addition to this evidence, law enforcement also found Coger’s identification card in the midst of where the manufacturing process occurred. We affirm on these counts.
B. Felon in Possession of a Firearm
Coger next challenges the sufficiency of the evidence supporting his felon-in-possession conviction. Pursuant to Arkansas Code Annotated section 5-73-103(a)(l), no person who has been, convicted of( a felony shall possess or own any firearm. A “firearm” is “any device designed, made, or adapted to expel a projectile by the action of an explosive or any device readily convertible to that use.” Ark, Code Ann. § 5—1—102(6)(A). The parties stipulated at trial that Coger is a convicted felon. The only issue of contention was whether Co-ger possessed a firearm,
|7On this point, Coger maintains that the only evidence tending to show that he possessed a firearm was an undated photograph taken from, his cell phone showing him holding “some sort of gun ” We disagree that the undated photograph was the only evidence.
After law enforcement had executed the search warrant, Captain Robert Boyd of the Madison County-Sheriffs Office went to arrest Coger on some outstanding warrants. Because Coger was under physical arrest on those outstanding warrants, Captain Boyd impounded Coger’s vehicle and conducted an inventory search. Among the items found during the inventoxy were two .22-caliber shotgun shells. Coger then consented to a search of three cell phones, which produced a photograph of Coger holding a rifle and' another individual holding a dead snake. John Epling, Coger’s brother-in-law, was identified as the other individual depicted in the photograph. John Epling testified that he and his wife moved to Madison County in March 2015. Epling testified that the photo was taken after an incident with the snake and his, son. His sworn testimony was that the gun in question was a BB gun. Officer Alberts, however, testified that the gun was a .22 rifle.
' Admittedly, Epling’s and Alberts’s testimony as to the nature of the gun . was in conflict. This discrepancy, however, was a question for 'the jury to resolve. See Sorum v. State, 2017 Ark. App. 384, 526 S.W.3d 50, 55 (noting that it is the jury’s duty to resolve conflicting testimony and determine the credibility of witnesses). The weight of the evidence and credibility of the witnesses are matters for the fact-finder, not for the trial court | son a directed-verdict motion or this court on appeal. Simpkins v. State, 2010 Ark. App. 723, 2010 WL 4345687.
In addition, it is true that the photograph was undated. Both John and Lavena Epling testified, however, that they moved to Madison County in March 2015. Thus, the jury could have reasonably concluded that the photograph had to have been taken after that point in time. We therefore hold that substantial evidence supports Coger’s felon-in-possession conviction.
C. Acquisition of Ephedrine/Pseudoephedrine
Coger next argues that the evidence was insufficient to support his misdemeanor conviction for violating Arkansas Code Annotated section 5-64-1103(f)(1). This statute provides that it is unlawful for a person “to knowingly purchase, acquire, or otherwise receive in a single transaction ... [m]ore than three (3) packages of one (1) or more products that the person knows to contain ephedrine, pseudoephedrine, or phenylpropano-lamine, or their salts, isomers, or salts of isomers.”
Coger argues that the only evidence introduced on this matter was the testimony of John Epling, whose abstracted testimony is as follows:
I bought Coger some Sudafed. I bought five boxes, but I didn’t buy all five at one time. I did not buy them all at one time.... You cannot go purchase five boxes at one time, [As] I stated [in my statement to police], “Matt and I went to Missouri to purchase a box of pills from Wal-Mart and then went and picked up another box of pills for him at Harps in Springdale. And then two more in Fay-etteville at Colliers Drug, then one more at Harps.” ... Looking at my statement, it doesn’t say anywhere that I .purchased all the pseudoephedrine at one time. I bought these boxes over a time period of a few months or so.... I bought the -boxes over a time period. I’d buy one one week and a week later I’d buy another. I’m not exactly sure when, I did not buy all five roughly at the same time.
InCoger is correct when he- states that this is the' only evidence of when the pseu-doephedrine was purchased. The State nonetheless dismisses his argument by suggesting' that the jury was free to" bé-lieve or disbelieve Epling’s testimony. "
We disagree with the State. Conviction under this statute requires the State to prove that Coger “knowingly purchase[d], acquire[d], or otherwise receive[d] in a single transaction .... [m]ore than three (3) packages” of ephedrine or pseu-doephedrine. Ark. Code Ann. § 5-64-1103(f)(1) (emphasis added). It is a fundamental principle of criminal law that the State has the burden of proving the defendant guilty beyond a reasonable doubt. Thornton v. State, 2014 Ark. 157, at 14, 433 S.W.3d 216, 224. The only evidence on this point was Epling’s testimony that the pseudoephedrine had been purchased over multiple transactions that were spread out in time; further, nothing in his testimony indicated that he gave the boxes of pills to Coger in a single transaction. Thus, 'the only evidence presented by the State on this point failed to satisfy its burden of proof. We must therefore reverse Coger’s conviction for acquisition of ephedrine/pseudoephedrine.
D. Possession of Drug Paraphernalia to Ingest Methamphetamine
Finally, Coger argues that there was insufficient evidence to convict him on the charge of possession of drug paraphernalia to ingest methamphetamine. A person who possesses drug paraphernalia with the purpose to use the drug paraphernalia to inject, ingest, | ininhale, or otherwise introduce into the human body a controlled substance in violation of this chapter upon conviction is guilty of a Class D felony if the controlled substance is methamphetamine. Ark. Code Ann. § 5-64-443(a)(2).
As previously discussed, Captain Boyd impounded the vehicle driven by Coger after his arrest on outstanding warrants and conducted an inventory search. In the course of the inventory search, Boyd found some spoons, a bottle of pills, and a blister pack from a package of pseudoephedrine. In addition, Boyd discovered a filter that had been removed from a cigarette, which was significant to Boyd because “often people who shoot methamphetamine use a spoon and filter off the cigarette to draw their liquid through.” Lastly, Boyd also found “a glass vial with some type of substance or residue inside.” Coger acknowledges that the glass vial was found in the vehicle that he was driving; nonetheless, he argues that there was no proof presented that he had any knowledge of the vial or that he exercised care, management, or control over it in any way. He also introduced the testimony of Misty Murphy, his girlfriend, who stated that it was her vial and that she had put it in the vehicle.
We find Coger’s arguments unpersuasive. There was ample evidence that Coger regularly drove the car in which the vial was found: Robert Boyd testified that he had known Coger and his mother for seventeen years and that he knew Coger to drive his mother’s car; Lavena Epling testified that Coger was driving their mother’s car the day he was arrested; and Russell Alberts testified that Coger had been driving the car that day. No evidence was introduced that indicated anyone other than Coger had. been driving that | nparticular vehicle. Finally, the jury was free to disbelieve Coger’s girlfriend’s testimony that it was her vial. See Sorum, supra. We therefore affirm on this point.
II. Motion for Mistrial
In what is actually his first point on appeal, Coger argues that the circuit court should have granted his motion for mistrial. During his closing argument, Coger’s attorney referred to the photograph of Co-ger with the gun and Epling with the dead snake and stated, “The only person in that picture that can speak about it is John Epling, and he’s testified that it was an air rifle.” When the State gave its rebuttal closing argument, the prosecutor made the following statement:
Finally, [defense counsel], remarkably enough—I don’t know why he has said this, but [he] said that the only person that could identify the gun in that photo was John Epling. That is not true. There is'another person in the photo that could identify the gun, and he hasn’t done it, but Mr. Alberts has.
Coger immediately moved for mistrial, arguing that the State had impermissibly commented on his right not to testify. The circuit court denied the motion, reasoning that Coger had said in his closing argument that there was only one person who could identify the gun. The court then admonished the jury that a defendant has the absolute right not to testify, and the fact that Coger did not testify was not evidence of his guilt or innocence and un der no circumstances should it be considered by the jury in reaching its verdict.
We do not agree with Coger’s arguments that the prosecutor’s comments amounted to an impermissible comment on his right not to testify and that the circuit court should have granted his motion for mistrial on that basis. A mistrial is a drastic remedy and should be declared only when there has been an error so prejudicial that justice cannot be served by | ^.continuing the trial or when the fundamental fairness of the trial itself has been manifestly affected. Jenkins v. State, 348 Ark. 686, 75 S.W.3d 180 (2002). Here, Co-ger opened the door to the State’s comment with his own remarks about the identity of the individuals in the photograph. When a defendant opens the door to the State’s comments, he cannot complain about it later. Jones v. State, 340 Ark. 390, 402-03, 10 S.W.3d 449, 456 (2000) (affirming denial of motion for mistrial where State allegedly improperly commented on defendant’s right to not testify, but defendant opened the door to the State’s doing so) (citing Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993)).
The circuit court has wide discretion in granting or denying a motion for mistrial, and absent an abuse of that discretion, the circuit court’s decision will not be disturbed on appeal. Elser v. State, 353 Ark. 143, 114 S.W.3d 168 (2003). In Boyd v. State, 318 Ark. 799, 804, 889 S.W.2d 20 (1994), the supreme court stated that “[t]he bottom line on mistrials is that the incident must be so prejudicial that the trial cannot, in fairness, continue.” In these circumstances, any prejudice suffered by Coger by the denial of the motion for mistrial was cured by the admonition that was given to the jury. An admonition to the jury usually cures a prejudicial statement unless it is so patently inflammatory that justice cannot be served by continuing the trial. Thomas v. State, 2012 Ark. App. 466, at 8, 422 S.W.3d 217, 221-22; Hudson v. State, 85 Ark.App. 85, 98, 146 S.W.3d 380, 388 (2004) (affirming the denial of a motion for mistrial because the cautionary instruction given to the jury helped to cure any prejudice resulting from the admission of objectionable Rule 404(b) evidence); Kemp v. State, 335 Ark. 139, 144, 983 S.W.2d 383, 386 (1998) (holding that trial court’s admonition to the 1 iajury cured any prejudice from prosecutor’s remarks in closing argument). We therefore affirm on this point.
III. Refusal to Admit Identification Card
In his next point on appeal, Coger challenges the circuit court’s ruling on the admissibility of evidence. Matters pertaining to the admissibility of evidence are left to the sound discretion of the circuit court; such a ruling will not be reversed absent an abuse of that discretion nor absent a showing of prejudice, which is not presumed. Paschall v. State, 2014 Ark. App. 246, at 3, 2014 WL 1663107 (citing McEwing v. State, 366 Ark. 456, 237 S.W.3d 43 (2006)).
Specifically, Coger assigns error to the circuit court’s refusal to allow him to introduce an Arkansas identification card into evidence. Coger attempted to introduce the identification card issued to him in May 2014 in order to rebut the evidence of the identification card found by law enforcement in the pink trailer. Coger took the position that he had lost the identification card that was found by law enforcement in the pink trailer and that he had the May 2014 identification card reissued to replace it. Because the only thing placing him in the pink trailer was the identification card found by law enforcement, Co-ger argued that it was crucial that the May 2014 reissued card be introduced into evi dence. The State objected to the admissibility of the identification card, arguing that it had only been disclosed to the prosecution the previous day and also on the ground that it was not a self-authenticating document. Coger’s counsel responded that he had only gotten it from Coger’s family the day before and had .disclosed it as soon as practicable; he also contended that it was [ 14a self-authenticating document. The circuit court sustained the State’s objection on both grounds.
Coger first contends that the circuit court erred in refusing to find that the identification card was a self-authenticating document. Arkansas Rule of Evidence 902 provides that extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to a domestic public document under seal, which is defined as' a “document bearing a seal purporting to be that of ... any state .,. and a signature purporting to be an attestation or execution.” Coger cites to no Arkansas authority that a state-issued identification card constitutes a self-authenticating document under Rule 902. -
We need not decide whether a state-issued identification card 'is a self-authenticating document, however, because the circuit court also denied Coger’s attempt to introduce the card because it had not been timely disclosed during discovery, On appeal, Coger simply argues that he “disclosed the evidence to the State' as soon as practicable after [he] received it and therefore complied with the State’s discovery request. The court erred by refusing to admit the defendant’s current identification bard.” Coger cites to no •authority on this point. We will not reverse when a point oil appeal is unsupported by convincing arguments or sufficient citation to legal authority. Ressler v. State, 2017 Ark. App. 208, at 9, 518 S.W.3d 690, 695-96; Watson v. State, 2015 Ark. App. 721, at 6, 478 S.W.3d 286, 290. We therefore affirm the circuit court’s ruling on this issue,
IV. Arkansas Rule of Evidence k0k(b)
Finally, Coger argues that the circuit court erred in denying his motion in limine and allowing the State to present evidence .of his 20Q8 conviction for manufacturing methamphetamine. As a general rule, the State is prohibited from introducing evidence of a defendant’s character to prove that-he acted in conformity with that character. Ark. R. Evid, 404. This prohibition excludes the introduction of evidence of other crimes or bad acts to prove the character of the defendant, However, eight exceptions to the general rule are listed in Rule 404(b). Pursuant to these exceptions, which are frequently referred to simply as “Rule 404(b) evidence,”, evidence of other crimes or bad acts may be admissible, for other purposes “such as proof of motive, opportunity, intent, 'preparation, plan, knowledge, identity, or absence of mistake or accident.” To be admissible, Rule 404(b) evidence must satisfy two prongs. First, it must be- independently relevant, which means it must have a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without thé evidence. Hubbard v. State, 2017-Ark. App. 93, 513 S.W.3d 289. Second, to be probative under Rule 403, the prior crime must be similar to the crime charged. Id.
This court gives considerable leeway to the circuit court in determining if the- circumstances of the prior crimes and the crimes at hand are sufficiently similar to warrant admission under Rule 404(b). Id. We have observed that circuit courts have broad discretion 11Rin deciding evidentiary issues, and their decisions are not reversed absent an abuse of discretion. Id. However, the State cannot admit Rule 404(b) evidence simply to show a prior bad act. Vance v. State, 2011 Ark, 243, at 20, 383 S.W.3d 325, 339.
At trial, the State introduced Rule 404(b) evidence demonstrating that Coger pled guilty in 2008 -to a charge possession of a controlled substance with intent to manufacture. Russell Alberts described the circumstances of that arrest and1 conviction, saying that he “busted” Coger -with a methamphetamine lab in his apartment in 2008. At that time, Alberts found pill soaks, an HCL generator, lithium batteries, and blister packs of pseudoephedrine, as well as paraphernalia for using methamphetamine.
On appeal, Coger argues that , the introduction of this Rule 404(b)- evidence constituted reversible error because it was introduced solely to prove that he was the sort of person who manufactured methamphetamine—i.e., to prove that he acted in conformity with his prior bad acts. The State responds that no error occurred because the Rule 404(b) evidence of Coger’s. previous conduct was offered to prove that he possessed knowledge of the manufacturing process.
In Saul v. State, 365 Ark. 77, 225 S.W.3d 373 (2006), the supreme court affirmed the circuit court’s admission of evidence under Rule 404(b) that the defendant had been previously convicted of manufacturing methamphetamine. In doing so, the court held that the testimony regarding Saul’s prior conviction was-significant because it showed a similar pattern of Saul’s criminal activity. 365 Ark. at 85, 225 S.W.3d at 380. The court in that case also affirmed .the introduction of .evidence that Saul had previously shoplifted 117pseudoephedrine; the court- held that the theft of known precursors was pertinent evidence of Saul’s knowledge and. intent relative to manufacturing methamphetamine. Id. at. 86, 225 S.W.3d at 380.
We find the Saul decision controlling. Alberts’s testimony about Coger’s 2008 conviction was relevant to show a similar pattern of conduct. His testimony about the items found at’ the time of Coger’s 2008 arrest—which were the same types of items that were discovered at the pink trailer in 2015-—was similarly relevant to demonstrate Coger’s knowledge and intent regarding the manufacture of methamphetamine. We therefore affirm on this point.
Affirmed in part; reversed in part.
Gruber, C.J.,and Brown, J., agree.
. Coger pled guilty to possession of a controlled substance with intent to manufacture methamphetamine in 2008.
. These outstanding warrants were unrelated to the charges or convictions in this appeal.
.. We note that Coger admitted in a statement to law enforcement that he had purchased pseudoephedrine because he suffered from allergies, and the search of Coger’s cell phone revealed text messages between Coger and another individual discussing "getting some eggs,” which Officer Alberts explained was common parlance in drug circles for pseu-doephedrine. However, there is nothing in either the statement or the text messages that relate to when the pseudoephedrine was purchased.
. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant thereto, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not discloséd, Or enter such other order as it deems proper under the circumstances. Ark. R. Crim, P. 19.7(a) (2016). | [
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Smith, J.
Appellants are the heirs-at-law of W. L. Johnson, who died in April, 1938, and they seek, by this snit, to cancel a mineral deed executed by their ancestor to Pierce Foster on May 8,1937, for the consideration of $100. This relief is prayed upon the ground that the ancestor, Johnson, lacked the capacity to make a valid conveyance of his real estate, and that his mineral deed was a constructive fraud. Other questions are discussed arising out of the fact that Foster subsequently conveyed to persons who were made parties to the suit. We find that the decision of the question of Johnson’s capacity to convey is decisive of all questions raised in the case, and we, therefore, decide no other.
The ancestor, Johnson, at the time of the execution of his deed, was 87 years old, and his heirs now say .their ancestor was then senile, weak in 'both body and mind, and incapacitated to make the deed, and the testimony in their behalf is to the effect that Johnson was confined to his death bed within eight months after executing the deed, and that he died from old age within- a year after the date of its execution. -
The testimony as to Johnson’s mental capacity was all ’given by lay witnesses. No expert .witness was called by,either side. Five witnesses testified in behalf of the heirs. ‘Of• these Mrs. B. Durham was a daughter; Mrs. W. R. Wilson, a granddaughter; Lawrence E. Johnson was a, son,' and J. M. McDuffie was the husband of,a daughter of the grantor. The fifth was Alvin Laney, who was the only disinterested witness testifying on behalf of the heirs on the question of the capacity to make the deed.-All of these gave testimony as to the state of Johnson’s health,, and related their observation of and. association with him. Based upon..the facts related by them, all these witnesses expressed the opinion that on the day of the execution of the deed Johnson lacked mental capacity to make it. Other witnesses testified as to the value of the property conveyed and the inadequacy of the price.
A large number of witnesses, most of whom had no interest in the litigation, after stating the facts upon which their opinions were based, expressed the opinion that Johnson did have the capacity essential to the execution of a valid deed. Among these was the justice of the peace who took the acknowledgment. Another was Joe Galbraith, a nephew of Johnson, who testified that his uncle had lived with him for seven years prior to the execution of the deed. This witness testified that Foster, the grantee, came to see his uncle the week before the execution of the deed, and proposed to buy the property. Johnson asked for time to consider the proposition. A week later Foster returned and made him an offer of a hundred dollars, which was accepted. After the transaction was closed, Johnson stated to witness, his nephew, that he had been paid more than he had expected. This witness expressed the opinion that Johnson’s mind was sound and that he knew what he was selling and what he was getting for his deed.
A sister of this witness testified that Johnson, her uncle, had lived with her and her brother in their home for seven years, and she expressed the opinion that her uncle was not of weak mind, but was of sound mind. Other witnesses testified that Johnson walked long distances unassisted, that he went alone to a store where he cashed checks and made purchases of articles desired. A neighboring farmer testified that a week or so after the execution of the deed Johnson told him he had sold the mineral under a tract of land for $100, and expressed the opinion that had he waited longer he might have gotten more for his deed, but that he was an old man and wanted the benefit of the money before he died.
The chancellor prepared an opinion,' in which the testimony was reviewed. This opinion reflects a clear and correct conception of the law applicable to the issues raised in the testimony.
This opinion contains the recital that “There is no evidence of fraud, coercion, or undue influence, on the part of the defendant (Foster), or any one.” This finding is in accordance .with the undisputed testimony.
It is argued, however, that, in view of the advanced age of the grantor, and the inadequate consideration paid him, the court should have found there was constructive fraud. It is argued that the property rights conveyed were worth $3,000, for which only $100 were paid. It appears that some twenty-five years ago Johnson had owned three 40-acre tracts of land, all of which he had sold, but that he had reserved a half interest in the mineral rights under the 120 acres. By subsequent trades he owned all the interest in the mineral rights under 60 of the 120 acres, and it was the conveyance of this interest which this suit seeks to set aside.
The plaintiffs assert, as has been said, that this interest was worth $3,000 at the time it was conveyed; but we do not think the testimony supports that contention. The land on which the mineral conveyance was made is twelve miles from oil-producing land in the Shuler field, on which its mineral value is based, and in 1929 a dry hole was drilled within three or four miles of it. All of the testimony is to the effect that the value of oil leases, especially in unproved areas, is highly speculative, and fluctuates widely and rapidly. While the testimony does not show that the value of this oil interest approximated $3,000, we do think it shows that it was worth considerably more than was paid for it, although there was testimony as to sales of other leases in that vicinity at prices only slightly higher, one of these purchasers from other owners being the Standard Oil Company. Upon this phase of the case, the chancellor, in his opinion, said: “It is true he sold the property some cheaper than some thought he should have sold it; but it is further true, under the testimony in this case, that he exercised his own judgment. ’ ’
In the case of Beebe Stave Co. v. Austin, 92 Ark. 248, 122 S. W. 482, 135 Am. St. Rep. 172, it was said: “Mr. Pomeroy in his work on Equity, says: ‘The doe- trine is nów well settled- that mere inadequacy — that is, inequality in value between the subject-matter and the price — is not sufficient to constitute constructive fraud.’ ‘When the inadequacy of price is so gross that it shocks the conscience, and furnishes satisfactory and decisive evidence of fraud, it will be sufficient proof that the purchase is not bona fide.’ 2 Pomerpy Eq. Jur., §§ 926, 927.’’'
The opinion of the chancellor was devoted principally to a discussion of the capacity essential to make a deed, and his opinion quotes from the case of Atwood v. Ballard, 172 Ark. 176, 287 S. W. 1001, as follows: “ ‘The familiar principles of law applicable to cases of this kind have often been announced by this court. If the maker of a deed, will, or other instrument, has sufficient mental capacity to retain' in his memory, without prompting, the extent and condition of his property, and to comprehend hpw he is disposing of it, and to whom, and upon what consideration,. then he possesses sufficient mental capacity to execute such instrument. Sufficient mental ability to exercise a reasonable judgment concerning these matters in protecting- his own interest in dealing with another is all the law requires. If a person has such mental capacity, then, in the absence of fraud, duress, or undue influence, mental weakness, whether produced by old age or through physical infirmities, will not invalidate an instrument executed by him.’ Pledger v. Birkhead, 156 Ark. 443, 246 S. W. 510, and cases there cited. See, also, Beaty v. Swift, 123 Ark. 166, 184 S. W. 442.”
We think the court below, in the application of this test to Johnson, was warranted in finding that he possessed the mental capacity necessary to make a valid conveyance of his property; at least, we are unable to say that this finding is contrary to the preponderance of the testimony, and the decree must, therefore, be affirmed. It is so ordered. | [
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G-rieein Smith, C. J.
The appeal is from two judgments, each for $750 — one to compensate personal injuries received by Mrs. J. W. Cater when, as a guest of Mrs. R. O. Brown, the automobile in which she was riding struck or was struck by a Crossett Lumber Company switch engine. The other judgment is in favor of J. W. Cater to compensate loss of his wife’s services and companionship, and for reimbursement of sums expended as a consequence of Mrs. Cater’s injuries.
The switch engine was being permissively operated on Missouri Pacific tracks which traverse Crossett east-west.
Sixth street is 62.7 feet wide immediately south of Avhere “A” avenue leads from it to the west. Prom a point slightly south of this intersection, to the railroad crossing north, the distance is 134 feet, and that part of the street north of the confluence with “A” avenue is known as 'Sixth street extension. Beyond the crossing the extension curves, and for more than 250 feet east and west it parallels the Missouri Pacific line, then crosses Rock Island tracks a few feet north of where Rock Island (running north-south) crosses the east-west Missouri Pacific. Beyond the Rock Island crossing is Unity Church — the objective of Mrs. Brown and Mrs. Cater when the collision occurred.
There are only two houses on Sixth street near the Missouri Pacific crossing. They are numbered 601 and 602, and are approximately 170 feet to the south. From the crossing to entrance of “A” avenue there was nothing on either side of Sixth street extension to obstruct one’s views of Missouri Pacific tracks. Railroad crossing signs were conspicuous.
Mrs. Cater and Mrs. Brown, proceeding leisurely, were discussing religious services at Unity Church. With them were six children. Mrs. Cater .says she was keeping a lookout while Mrs. Brown was driving, and “when we were about middleways of that little road coming into Sixth street from the left I saw a light, but did not know the direction from which the train was coming.” Speed of the automobile was estimated at from ten to fifteen miles an hour. Because of dust from “A” avenue and Sixth street extension, light from the train shown dimly.
Mrs. Cater testified to having warned Mrs. Brown a train was coming, but “she kept driving, and of course we were close to-the crossing then, and [so was the train]. I saw [Mrs. Brown] either didn’t hear me or didn’t see [the train], and as they had no one out to flag us and didn’t blow the whistle or ring the bell, I figured if I turned the car down the track we would miss the train; so I grabbed the steering wheel and just as I turned [it] the train hit us. ... It dragged ús up the track possibly 25 or 30' feet — -I don’t know exactly how far.” Did not grab the steering wheel until automobile was hit.
Other witnesses testified that, immediately after the collision, Mrs. Cater said she was not hurt except for a few scratches.
• Mrs. Brown testified she was driving ten or twelve miles an hour. "With Mrs. Cater in the front seat was the latter’s baby. In the back seat were Mrs. Brown’s two children and three of Mrs. Cater’s. Supposed the train was on Rock Island tracks and for that reason did not apprehend the danger. If whistle or bell had been sounded “thinks” she would have stopped to investigate. When witness realized the switch engine was approaching she applied brakes and turned the car slightly to the west. Mrs. Cater did not, as far as witness knew, reach over and turn the steering wheel. First realization that headlight came from engine on Missouri Pacific line was when the automobile was about fifteen feet from crossing. At that time “switch engine was down the track — I couldn’t say how far. It had not gotten to the road.”
Appellant’s trainmen admit having seen the automobile, when it was 100 feet or more from the crossing and agree with Mrs. Brown that it was proceeding slowly — probably ten or twelve miles an hour.
The locomotive had started from a switch ninety feet east of the Sixth street crossing. The conductor • testified that the engineer gave two sharp blasts of the whistle as the engine got in motion. According to this witness, the automobile hit the side of the locomotive.
Considering the testimony as a whole, it is certain that Mrs. Brown saw the locomotive headlight when she was more than a hundred feet from the crossing, but erroneously assumed the train was on Rock Island tracks.
A mechanic who examined the automobile after the collision found defective brakes.
The court takes judicial notice of the fact that a locomotive in starting (unless on a downgrade) makes considerable noise.
The defendant is not a railroad company. Therefore, statutes applicable to railroad companies only have no application.
Responsible occupants of the automobile were thoroughly familiar with the crossing* and its environs. They knew the railroad was used by Missouri Pacific, and by the lumber company. No signal could, have conveyed to Mrs. Brown or Mrs. Cater more than the object itself— the headlight of an engine. Mrs. Cater says she realized a train was approaching and told Mrs. Brown — not once, but twice. While Mrs. Brown’s negligence will- not be imputed to Mrs. Cater, the latter was personally negli-, gent in not ascertaining that Mrs. Brown became cognizant of the peril when told that a train was approaching. There was a second warning, and still no response. Mrs. Cater failed to accomplish what she says she undertook to do. The car traveled 100 feet or more while the engine headlight was in plain view.
Proximate cause of the injury was inattention upon the part of occupants of the car, and faulty brakes. The fireman was not negligent, after observing that the automobile was approaching at a low rate of speed, in assuming it would come to a stop before entering the crossing. We said in Blytheville, Leachville & Arkansas Southern Railway Company v. Gessell, 158 Ark. 569, 250 S. W. 881: “The operatives of trains have the right to assume that a traveler or a pedestrian approaching a railroad track will act in response to the dictates of ordinary prudence and the instinct of self-preservation, and will, in fact, stop before placing himself in peril, and the duty of the railroad employees to take precautions begins only when it becomes apparent that the traveler at a crossing will riot do so.”
This declaration of the law does not, of course, relieve operators of a railroad or those permissively us.ing its facilities from exercising that degree of care imposed in a given case by statute or arising under the common law, but it is authority for the practical, common sense proposition that when those in control of a slow-moving locomotive see an automobile or other vehicle approaching a crossing, and the manner of approach in respect of speed and control is such that, in view of attending physical conditions (such as grade, relation of track to roadway, visibility, etc.) a normal person could, and a reason ably prudent person would, see tbe train and stop, responsibility for disaster will not be shifted to a non-offending defendant. Missouri Pacific Railroad Company v. Harden, 197 Ark. 899, 125 S. W. 2d 466.
Our bolding is that appellee’s contributory negligence was sucb as to bar ber recovery, and tbe trial court should have directed a verdict for the defendant. Judgments are reversed, and tbe causes are dismissed.
Presumably “A” avenue.
Mrs. Cater testified: “At the time I first saw the light and knew the train was on the track, I called to Mrs. Brown and said, ‘Mrs. Brown, the train is coming-.’ She didn’t say anything, and of course we were still driving along very slowly and I called to her again. I said, ‘Mrs. Brown, the train is coming.’ If she said anything then I didn’t hear her. She kept driving, and of course we were close to the crossing then and the train was right close to the crossing. I saw she either didn’t hear me or didn’t see it.”
The following is taken from Mrs. Brown’s testimony: “When I was within fifteen feet of the track and first saw the switch engine, I didn’t know how fast it was moving. It was moving along very slowly itself — at slow speed. I went about fifteen feet and turned, and by that time I hit the rail and stopped. The engine hit me. Then it went just a little farther down the track. I have seen trains stop all my life, [but] I never saw one stop quicker than that.” Mrs. Brown, like Mrs. Cater, saw the train headlight when the automobile was opposite “A” avenue, and thought the train was on Rock Island tracks. Mrs. Brown commented: “You see, it was awfully dusty. Cars had gone ahead of us.”
The engineer testified he thought the train was moving at ten miles an hour when the crossing was reached.
The witness was George B. Gordon, who testified: “We found one good brake on the car, which was the left front wheel. The other brakes were no good; so the car had no stopping power.”
In the circumstances of the instant case it is unimportant whether liability or non-liability of the defendant rests on statutory or common law grounds. It is said (Elliott on Railroads, third edition, v. 3, § 1459) that “at common law the railway company is under obligation to exercise ordinary care to prevent collisions with travelers on the highway, and by ordinary care is meant such care as a reasonably prudent man would ordinarily exercise under the circumstances.” [See Inabnett v. St. Louis, Iron Motmtain & Southern Railway Company, 69 Ark. 130, at page 133; 61 S. W. 570.] | [
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McHaNey, J.
Appellant was convicted of the crime of receiving three hags of stolen coffee, of the value of $100, knowing the same to have been stolen, and sentenced to one year in the penitentiary.
Several errors are assigned for a reversal of the case. The first is that the court erred in overruling his motion for a continuance on account of the absence from the jurisdiction of the -witness, Marion Smith, who was in the employ of the appellant in his grocery store in Yan Burén at and prior to the time the offense was-charged to have been committed. The indictment was returned on July 5, 1928, hut appellant was not put to trial until November 28, 1928. It was alleged, in the motion for a continuance, that Smith was ill in a hospital in Kansas City, Mo., and had been since about October 1, and the certificate of the physician showed that his condition was such that he would have to remain some months longer. Appellant waited until November 23, five days before the date of trial, at a time when he knew the absent witness was out of the jurisdiction, to have a subpoena issued for him.
We think there is no sufficient showing of diligence to entitle appellant to a continuance. He could have had a subpoena issued and served on the witness long before he left the jurisdiction, and he had ample time, after the witness left the jurisdiction, to have determined whether the witness would be available for the trial, and, if not, to have taken his deposition. It is a well established rule of this court that matters of continuance rest in the sound discretion of the trial court, and that this court will not reverse for the refusal to grant a continuance in the absence of a positive abuse of such discretion. Thompson v. State, 26 Ark. 323; Adams v. State, 176 Ark. 916, 5 S. W. (2d) 946, and cases there cited. And no abuse of discretion can be relied on where it appears that the party has not used due diligence to procure the attendance of such witness, or to obtain his testimony. Many cases are cited under § 3129, C. & M. Digest, regarding the necessity of diligence in efforts to secure the attendance of witnesses, and many more might be cited subsequent thereto.
Moreover, an examination of the allegations in the motion as to what the absent witness would testify, as compared with the other evidence in the case, shows that his testimony, if present, would have been merely eumu- lative, and another well-established rule of this court is that it is no abuse of discretion of the trial court to deny a motion for continuance where the testimony of the absent witness is cumulative to the testimony of other witnesses. Sneed v. State, 47 Ark. 180, 1 S. W. 68; Maxey v. State, 66 Ark. 523, 52 S. W. 2; Moon v. State, 164 Ark. 486, 262 S. W. 658; Adams v. State, supra.
No abuse of discretion having been shown on the part of the trial court, we cannot reverse on this assignment.
Appellant next discusses the insufficiency of the testimony, and the lack of corroboration of the witness, Merritt Knight, who admittedly burglarized the Frisco Railroad’s warehouse and stole a quantity of merchandise, including the coffee in question. It is argued that there is no proof to show that appellant knew the coffee was stolen at the time it is claimed the coffee came into his possession. In this connection appellant requested instructions numbered 1, 2 and 3, all to the effect that appellant could not be convicted of the charge of receiving stolen property unless the State had proved, to the satisfaction of the jury, beyond a reasonable doubt, that the defendant 'knew that the said property had been stolen. These instructions were covered by the court in an instruction given on its own motion, as No. 2, to the effect that, before the jury would be justified in convicting the appellant, they must find beyond a reasonable doubt:
“First. That the property was stolen; second, that it belonged to the party alleged in the indictment; third, that this defendant himself received it in his possession; fourth, that, when he received it, he did so with the knowledge that it had been.stolen; fifth, that he had the intention at the time he received it to deprive the true owner of his property, and continued the larceny of it. If you have any doubt from the evidence as to the truth of these several elements, acquit him. If, on the other hand, you believe these things have been proved to your satisfaction beyond a reasonable doubt, you should convict him/’
It is not contended that this is not a correct instruction. It is a correct declaration of the law on this subject, and fully and fairly instructed the jury as to every element of the offense charged, and the appellant cannot complain that the court refused to multiply instructions on the same subject. "We have examined the evidence carefully, and find it amply sufficient to take the case to the jury on appellant’s guilt or innocence.
It is finally insisted that the court erred in improperly submitting the question of corroboration of the accomplice, Merritt Knight. Section 3181, C. & M. Digest, provides: “A conviction cannot be had in any case of felony upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof * # #
Relative to the sufficiency of the corroborating evidence, in addition to the fact that appellant permitted his delivery boy to take the witness Knight to the place where he had stored the coffee, and haul same to his storehouse on his own truck, and in addition to his own statement that he was suspicious that the coffee was stolen, because Knight was possessed of too much coffee, there are other facts and circumstances in the case tending to corroborate the witness Knight. There were several boxes of underwear stolen at the same time that the coffee was stolen from the railroad warehouse. One witness testified that he had ordered a shipment of this particular brand of underwear from St. Louis, and had been notified, the day before the warehouse was broken into, that the shipment had arrived; that he had the exclusive sale of this particular brand of underwear in Van Burén, and that no one else could buy it. Another -witness for the State testified that, in addition to finding the stolen coffee in appellant’s store, they found some underwear of the same brand that had been stolen from the warehouse. Appellant makes no explanation of how the underwear found came into his possession. Other facts and circumstances were developed tending to corroborate the witness Knight, which we do not. set out, but suffice it to say that the evidence was sufficient to go to the jury on the question of corroboration. Powell v. State, 177 Ark. 938, 9 S. W. (2d) 583.
Appellant asked correct declarations of the law in instructions Nos. 4 and 7, relating to the testimony of an accomplice, which we do not set out, as we are of the opinion that the court correctly instructed the jury, and sufficiently covered the requested instructions in instruction No. 5 given on the court’s own motion, which is as follows:
“Our statute provides that the jury cannot convict any one charged with a felony on the uncorroborated evidence of an accomplice. . By an accomplice is meant any person who had anything to do with the commission of the offense charged, and the evidence of any accomplice uncorroborated will not justify any jury in convicting a defendant, even though they believe it beyond a reasonable doubt.
“You will observe that the corroborating evidence of an accomplice must not only show the facts and circumstances of the case, but also show the defendant’s connection with it. The .jury must not malee the mistake of thinking that the corroborating evidence itself should be sufficient to convince you of his guilt beyond a reasonable doubt. The instruction tells you, first, that the evidence of an accomplice must be corroborated, and second, that all the evidence in the case, taken together, must convince you of his guilt beyond a reasonable doubt, before you can convict him.”
While unly a general objection is made to this instruction, appellant asked correct instructions on the same subject, which amount to specific objections to the instruction given. As we have already stated, an analysis of the court’s instruction, as above set out, shows that it is in conformity with the statute above quoted. We do not think it is inherently wrong. The last sentence in the second paragraph is somewhat argumentative, but not sufficiently so to condemn the instruction as a whole. It would perhaps have been better for the court to have instructed the jury substantially in the language of the statute, as asked in appellant’s requested instruction No. 4. Nor do we think the use of the word “case” in the second paragraph was misleading to the jury and subject to the criticism made by appellant. We think the jury necessarily understood that the court.meant the facts and circumstances connected with the offense charged when it used that word.
We find no error, and the judgment is affirmed. | [
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Johnson, C. J.,
(after stating the facts). This case must be reversed because of the error of the trial court in giving to the jury instructions Nos. 1, 2 and 3 on behalf of appellee. It will be noted that instruction No. 1, given on behalf of appellee, ignores all the defenses offered by appellant, that is to say, the defenses of assumption of risk, contributory negligence and the release of liability. Each of these instructions directed the jury to return a verdict in favor of appellee on the hypothesis therein stated, wholly ignoring the defenses of assumption of risk, contributory negligence and a valid release. It is insisted, on behalf of appellee, that this error was cured because the court specifically told the jury in an instruction that they should consider all the instructions given as a whole. This exact question was before this court in the ease of Natural Gas & Fuel Co. v. Lyles, 174 Ark. 146, 294 S. W. 395, in which the fifth headnote reads: “In a suit by an employee for personal injuries, an instruction that the jury should render a verdict for the employee, if they found the employer guilty of negligent acts detailed in instruction, held erroneous, as excluding the defenses of contributory negligence and assumed risk.”
The defenses of assumed risk, contributory negligence and a valid release all were outstanding in favor of appellant at all stages of this proceeding, and, before the jury should have been instructed to find for appellee, it should have been conditioned upon each of these defenses. In other words, if appellee had executed a valid release, this should have impelled a verdict for appellant; or if appellee had assumed the risk of this collision, the verdict'of the jury should have been for appellant; or if appellee’s contributory negligence, if any, was greater than the negligence of Clyde White, if any,.a verdict should have been returned in favor of appellant. Instructions Nos. 1, 2 and 3 wholly ignored these defenses.
This court held in the Lyles cases, cited supra, on this exact question: “Appellee contends that the omission in the two instructions to take into account appellant’s defenses of contributory negligence and the assumption of the risk by appellee was cured by instructions numbers 2 and 4 requested by appellant and given by the court. Number 2 related to contributory negligence, and number 4 to the assumption of the risk, and would have cured the defect, had the court not told the jury in both cases to render a verdict in favor of appellee in case they found that appellant was guilty of negligence as alleged. This declaration on the part of the court created a conflict between the two instructions given at the request of appellee and instructions 2 and 4 given at the request of appellant. Southern Anthracite Co. v. Bowen, 93 Ark. 140, 151-152, 124 S. W. 1048.”
It will thus be seen that instructions numbered 1, 2 and 3, given on behalf of appellee, were in conflict with the correct instructions given on behalf of appellant, and were therefore prejudicial.
Since this case must be reversed and remanded for a new trial, we deem it proper to discuss some other questions in the case which will probably recur. It is insisted here, and will probably be insisted on a new trial, that the trial court should have directed a verdict in favor of appellant because, as it is said, the testimony of appellee. was false and not worthy of belief wherein he testified that his brother, Clyde White, grabbed the steering wheel and turned the truck into the path of the touring car driven by Holland. This contention is bottomed upon the theory that appellee had testified in two previous trials, in neither of wdiich he had testified to the same state of facts and circumstances. On this question, it suffices to say that, under our system of government, the trial jury is the sole and unfettered judges of the credibility of witnesses and the weight that should be given to their testimony.
Section 22, article 7, of the Constitution of 1874 provides in part: “Judges shall not charge juries with regard to matters of fact, but shall declare the law,” etc.
In the early case of Wilcox v. Boothe, 19 Ark. 684, this court held: “It is the province of the jury, and not of the appellate court, to weigh the evidence and determine whether the testimony of a witness is to be believed. ’ ’ In the more recent cases of Shearer v. Farmers’ & Merchants’ Bank, 121 Ark. 529, 182 S. W. 262, this court said: “The jury, being the judges of the credibility of the witnesses, their verdict will not be disturbed on appeal.”
Again it was said by this court in the case of Kimbro v. Wells, 121 Ark. 45, 180 S. W. 342, that: “The weight of evidence and credibility of witnesses is solely for the jury, and they are authorized to accept such part of the testimony as they believe to be true, and reject that which they believe to be false.”
It may be that appellee had testified in previous trials to statement of facts contradictory to his testimony here given, but this would go only to his credibility as a witness and the weight that should be given to his testimony by the jury. The trial court was therefore correct in refusing to direct a verdict in favor of appellant on this theory.
The next insistence is that appellee cannot maintain this suit because of the execution of a release in favor of appellant. The circumstances surrounding this release are to the effect that, when a person is employed by appellant, he is furnished with what is denominated a “blue book,” wherein it is delineated that the employees of appellant upon receiving disability while in the employ of appellant, shall receive certain benefits therein explained and described. After receipt of the injuries herein complained of, appellant sent to appellee, -at Forrest City, certain papers to be executed by him, in reference to the acceptance or rejection of this plan. Appellee testified, in effect, that he did not read the details of these instructions, but assumed that they were for the purposes purported in the letter, that is to say, to enable him to draw his wages while suffering from his injuries. He further testified, in effect, that he did not know, and had no intention of releasing his cause of action when he signed the papers. Many other circumstances were testified to in reference to the advancement of this plan and the procuring of the release which we deem unimportant to here set out.
The trial court submitted the validity or invalidity of this release under instructions Nos. 5, 6 and 7 on behalf of appellee, and certain requested instructions on behalf of appellant. We think the trial court was correct in submitting this question to the jury, and that the instructions given in this behalf were correct declarations of law. We are unwilling to say, under all the facts and circumstances in this case, that the paper signed by appellee was a voluntary release as a matter of law. Section 7147, Crawford & Moses’ Digest, provides: “Any contract, rule, regulation or device whatsoever, the purpose or intent of which shall be to enable any such corporation to exempt itself from any liability created by this act, shall to that extent be void. Provided, that in any action broug'ht against any such corporation under or by virtue of any of the provisions of this act, such corporations may set off therein any sum it has contributed or paid to any insurance relief benefit, or indemnity that may have been paid to the injured employee or the person entitled thereto on account of the injury or death for which said action was brought.”
We think the testimony was sufficient to submit the question to the jury.
Other alleged errors will probably not occur on retrial of the case, and we therefore refrain from discussing them.
The case is reversed for a new trial.
McHaney, J. Mr. Justice Smith, Mr. Justice Butler and I concur. We hold that the release was executed voluntarily and without any fraud or misrepresentation, and is valid and binding on appellee. We are therefore of the opinion that the judgment should be reversed and the cause dismissed. | [
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Humphreys, J.
B. L. Williams, husband of appellant, Ida R. Williams, owned certain real estate in the city of Stuttgart, and sold same, on the 3d day of February, 1920, to R. L. Metsker, and received seven one-thousand-dollar promissory notes and a first mortgage back on said property for the purchase price thereof. The first note became due and payable on October 1, 1921, and one each year thereafter until all became due. The notes bore interest at the rate of 8 per cent, per annum from date.
On the 21st day of April, 1920, B. L. Williams and his wife borrowed from and executed their joint note for $3,000 to W. H. Maners, one of the appellees herein, bearing interest at the rate of 8 per cent, per annum until paid, and with the indorsement on the note that it would bear 10 per cent, after maturity; and said sum was secured by the transfer of four of the seven promissory notes and mortgage executed by W. H. Maners to B. L. Williams; R. L. Metsker afterwards conveyed the property to Jennie Ferch, a nonresident of the State, both of whom failed to pay the taxes, and defaulted in the payment of the first note and interest on the others.
On April 20, 1922, B. L. Williams brought this suit to foreclose on the notes and the interest due to that date, subject to the notes not due, in which suit W. H. Maners intervened, alleging the assignment of four of the notes to him as collateral security, and praying' that the proceeds to be derived from the foreclosure sale should first be applied to the payment of the indebtedness which appellant and her husband owed him.
A receiver was appointed to rent the property and pay all delinquent taxes. He collected the rents, and redeemed the property from all tax sales except the special improvement taxes levied against the property by the Northern Road Improvement District, which he overlooked. The mortgagor, R. L. Metsker, not only failed to pay these taxes to protect the title to the property, but the mortgagee, B. L. Williams, had neglected to pay them in order to protect his lien. The lands were sold through proceedings in the chancery court for these taxes, amounting to $28.02, and were bought in by said district on the 23d day of August, 1922. The district sold and trans.-ferred its certificate of purchase to E. H. Noble, who presented it to the commissioner in chancery two years after the sale, 'and obtained a tax deed to the property. W. H. Maners, in looking through the record, discovered the outstanding tax title in Noble, and he and the Williamses tried to get a quitclaim deed from him, but failed to do so. They then brought suit in the chancery court against Noble, and obtained a decree canceling his tax title, but, in order to prevent an appeal to the Supreme Court, the Williamses and Maners purchased Noble’s tax title, agreeing to pay him $500 for it. Noble owed the Wil-liamses $100, and Maners loaned them the other $400 in order to purchase the outstanding tax title. The Wil-liamses executed to him two notes, one for $100, which was paid in a few months, and the other for $300, payable at a later date. By agreement the property was conveyed by Noble to appellant, at which time a written agreement was entered into between the Williamses and Maners whereby W. H. Maners acknowledged that appellant was the owner of the property and the Williamses acknowledged their indebtedness to him on the original $2,000 note, as well as the $300 note given for borrowed money to pay Noble for his tax deed, and turned the possession of the property over to him, to the end that he might rent same, pay the taxes and insurance and apply the balance to the liquidation of said indebtedness. Pursuant to the agreement, W. H. Maners took possession and rented the property, and credited the notes with $88 on January 2,1927, and with $125 on August 2,1927. After the execution of the contract, B. L. Williams became insolvent, and was adjudicated a bankrupt. Noble was appointed trustee in the bankrupt proceedings. W. H. Maners then filed an amended intervention in the foreclosure proceedings, setting out the facts detailed above, and making appellant and the trustee of B. L. Williams parties in the action, praying judgment for the amount due him, and that his indebtedness be declared a prior and paramount lien against the property. The cause was revived in the name of the trustee of B. L. Williams, without objection on the part of appellant.
Appellant filed an answer to the amended intervention, denying liability for the alleged balance of $1,993.22 on the $2,000 note executed by her husband and herself to W. H. Maners, alleging that she received no part of the borrowed money; also denying liability to the extent of $112.26 on the $300 note executed by herself and husband to Maners, or that such amount as she might owe thereon was or is a lien on the property; also denying that the purchase of the tax title from E. H. Noble amounted to a redemption of the property from the tax forfeiture and sale; and, by way of affirmative defense, alleged that she acquired the fee simple title to the property under her purchase and conveyance from E. H. Noble, clear of all claims and incumbrances of W. H. Maners and other parties to the suit.
The cause was submitted to the court upon the pleadings, exhibits thereto and the deposition of W. H. Maners, which resulted in a finding that the purchase of the tax title from E. H. Noble by appellant amounted to a redemption of the property from the tax forfeiture and sale for the benefit of W. H. Maners and the creditors of B. L. Williams, represented in the suit by his trustee in the bankrupt proceedings, and that W. EL Maners and the trustee were entitled to a decree of foreclosure of the property, and out of the proceeds of the sale W. H. Mailers was entitled to the amount due him, of $2,018.01, with interest from date of the finding, and that the trustee was entitled to $8,039,99, and that the balance, if any, should be held subject to the further order of the court. A decree was rendered in accordance with the findings, and the property was sold, and a commissioner’s deed was executed to the purchaser and approved and confirmed by the court, from which findings and decree is this appeal.
Appellant’s first contention for a reversal of the decree is that the court had lost jurisdiction over-the cause of action by reason of the rendition of a decree in the cause on the 8th day of October, 1924. Cases are cited to the effect that the court loses .jurisdiction over a cause of action and a final decree therein after the lapse of the term at which same is rendered. The principle invoked is not applicable in the instant case. Appellant did not plead res judicata as a defense, nor raise that question in the lower court. She has raised it here for the first time, basing her contention on the following notation appearing at page 68 lof the transcript: “Decree rendered on October 8, 1924.” The record is silent as to the contents of the decree, or by whom or on what authority it was made. The notation is too indefinite to sustain the defense of res judicata, had it been pleaded.
Appellant also contends for a reversal of the decree on the ground that no duty rested upon B. L. Williams or appellant to pay the taxes, and that therefore the court erred in treating’ the purchase of the tax title by her from E. IT. Noble as a redemption from the tax sale. It is argued that the only duty to pay taxes on the property rested upon the owner and mortgagor or his grantees. Cases are cited to the effect that such duty did rest upon them, but the cases do not go to the extent of holding that their duty in this respect was exclusive. The rule was announced by this court in the case of Ross v. Frick, 73 Ark. 45, 83 S. W. 343 (quoting syllabus): “While the mortgagee may pay the taxes on mortgaged land and claim reimbursement therefor, he may not permit the land to be sold for taxes and acquire title under the sale.” This court also ruled in the case of Herrin v. Henry, 75 Ark. 273, 87 S. W. 430, that: “Where a duty rested upon a husband to pay taxes upon property, the purchase -by his wife at the tax sale should be treated as his purchase and regarded as a redemption for the benefit of his creditors.” This court ruled in the recent case of Adams v. Simms, 177 Ark. 652, 9 S. W. (2d) 327, that, where wives of mortgagors purchased titles to their homesteads, under a sale thereof to satisfy road improvement taxes, with their individual money, such purchase by the wives would be treated, so far as the mortgages were concerned, as a redemption iof the land by the mortgagors. In principle the purchase of tax titles by wives of mortgagees would not be different from the wives of mortgagors. In the instant case the money with which the outstanding tax title was purchased was borrowed by appellant and her husband from W. IT. Maners, and he was placed in possession by them, with direction to collect the rents and apply same to the payment of the money thus borrowed, as well as the balance of the indebtedness which they owed him on the $2,000 note for borrowed money. It would be inequitable indeed to let appellant set up her tax title in defense of his claim.
Appellant also contends for a reversal of the decree because the $2,000 note signed by her and her husband jointly to W. H. Maners for borrowed money had -upon it the following indorsement: “I, the undersigned, agree to pay 10 per cent, after maturity.” It is argued that this indorsement was placed on the note by. B. L. Williams after its execution and maturity, without her consent, and invalidated the note as against her on account of an alteration and on account of its being an extension of the time for payment thereof. There is no testimony that this indorsement was placed upon the note after its execution. So far as the record discloses, appellant was a principal, and not a surety. It is true that she alleged that she received no consideration for signing the note, and signed it as surety for her husband, but she did not introduce any proof to this effect. She did not allege an alteration in the note or an extension thereof without her consent, and had raised both these questions for the first time in this court.
Appellant also contends for a reversal of the decree on the ground that, under the contract, W. H. Maners’ only remedy was to remain in possession of the property and collect his indebtedness out of the rents. There may have been something in this contention if B. L. Williams had not become insolvent and a bankrupt. The proceedings in bankruptcy placed him and appellant in a position where they could not carry out the contract relied upon. Without objection, his trustee was made a party in the foreclosure proceeding, and the cause was revived in his name. The trustee had the right to subject B. L. Williams’ equity in the property to the payment of the indebtedness due his creditors, after paying existing liens or incumbrances upon the property. W. H. Maners’ only remedy to collect his indebtedness was to enforce his rights in the mortgage foreclosure proceedings, which had never been dismissed.
No error appearing, the decree is affirmed. | [
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RITA W. GRUBER, Chief Judge
1 iThis appeal stems from a tort case arising out of the February 28, 2013 murder of.Christian Hayes. At the time of his. death, Hayes was employed as an assistant manager at the Sbarro restaurant in Little Rock’s Park Plaza Mall. Deonte Edison and Tristan Bryant murdered Hayes in Sbarro’s leased, private space after the close of business. Kimberly Powell, on behalf of Hayes’s estate, sued numerous parties'for his death, and the case went to trial on her claims against Park Plaza Mall CMBS, LLC (Park Plaza); ERMC II, LP (ERMC), the entity that provided security services to Park Plaza; Edison; and Bryant, A Pulaski County jury returned a verdict in favor of Powell.
Park Plaza and ERMC appealed the judgment, and the International Council of Shopping Centers filed an amicus brief in support of reversal. However, our review has | {.uncovered pending cross-claims that preclude us from,reaching the merits of this appeal, and we must dismiss the appeal without prejudice for lack of jurisdiction.
Rule 2(a)(1) of the Arkansas Rules of - Appellate Procedure-Civil provides that an appeal may be taken only from a final judgment or decree entered by a circuit court. An order is not final if it adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties. S. Farm Bureau Cas. Ins. Co. v. Easter, 369 Ark. 101, 251 S.W.3d 251 (2007); Ark. R. Civ. P. 54(b). Although neither party raises the issue, whether an order is final for appellate purposes is a jurisdictional question that the court will raise sua sponte. Moses v. Hanna’s Candle Co., 353 Ark. 101, 103, 110 S.W.3d 725, 726 (2003).
■ An examination of this appeal reveals that Kimberly Powell amended her complaint several times during the course of the litigation. She also requested- the dismissal of several defendants without prejudice. As a general rule, the dismissal-, of a party-rwith or without prejudice—can- create finality. Driggers v. Locke, 323 Ark. 63, 913 S.W.2d 269 (1996). Accordingly, Powell’s dismissal of certain parties without prejudice does not preclude our court from exercising jurisdiction.
However, we must also analyze Park Plaza and ERMC’s cross-claims in the course of our jurisdictional review. Park Plaza and ERMC filed cross-claims for indemnity and contribution against several of their codefendants—Sbarro, LLC; Sbarro America, Inc.; Sbarro Franchise Co., LLC; Kahala Franchising, LLC; and QC & SF Enterprises, Inc. Park Plaza and ERMC’s cross-claim against QC & SF Enterprises, Inc.., was dismissed with prejudice, and their cross-claims against Sbarro, LLC, and Sbarro. America, Inc., were | asevered. Park Plaza and ERMC merely dismissed their cross-claims against Sbar-ro Franchise Co., LLC, and Kahala Franchising, LLC, without prejudice.
Generally, a. circuit court’s order granting a nonsuit and dismissing claims without prejudice is not a final order or an adjudication on the merits because the merits of the cause are not finally determined. Beverly Enters.—Ark, Inc. v. Hillier, 341 Ark. 1, 3, 14 S.W.3d 487, 488 (2000). The recent case of Stodola v. Lynch expounds on this general rule. 2017 Ark. 181, 519 S.W.3d 677. In Stodola, our supreme court held that appellees’ nonsuited claims that were not refíled within the applicable statute-of-limitations period and were not refíled within one year' of having been nonsuited could “no longer be litigated” and were “no longer a bar to finality.” Id. at 3-4, 519 S.W.3d at 679.
Here, Park Plaza and ERMC’s cross-claims against Sbarro Franchise Co., LLC, and Kahala Franchising, LLC, arose out of Hayes’s February 28, 2013 murder and were based on negligence theories, which carry a;three-year statute of limitations. Thus, the.statute of limitations required that any claims be filed no later than February 28, 2016. Additionally, the circuit court dismissed without prejudice Park Plaza and ERMC’s cross-claims against Sbarro Franchise' Co,, LLC, and Kahala Franchising, LLC, on October 13, 2015. Accordingly, these cross-claims could be refíled no later than October 13, 2016.
14Our case differs factually from Stodola. In- Stodola, both the statute of limitations and the time to refile any claim had expired before- the notice of appeal was filed. Thus, it was clear from the record on appeal that the nonsuited claims could no longer be litigated. In the present appeal, the notice of appeal was filed on December 30, 2015, and the record was lodged on May 18, 2016. This is prior to the expiration of Park Plaza and ERMC’s time to refile their cross-claims. This distinction is important. On the record before us, Park Plaza and ERMC had time to refile and. litigate their cross-claims. Thus, the nonsuited cross-claims bar our ability to exercise jurisdiction. ■
Because there are still pending cross-claims against Sbarro Franchise Co-., LLC, and Kahala Franchising, LLC, we necessarily turn our attention to the circuit court’s Rule 54(b) certificate to see if it complies with our rules pertaining to the finality of orders in judgments with multiple claims or multiple parties. Arkansas Rule of Civil Procedure 54(b) requires that when “more than one claim for relief is presented in an action ... or when multiple parties are involved, the court may-direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination, supported by specific factual findings, that there is no just reason for delay.”'
The Rule 54(b) certificate sets out a limited history of the litigation in this case and provides that the cross-claims of Park Plaza and ERMC against Sbarro, LLC, and Sbarro America, Inc.,—termed Sbarro Defendants—were severed “to further convenience, avoid prejudice, and to be conducive to expedition and economy.” The Rule 54(b) certificate Ralso provided that the cross-claims against “Sbarro Defendants” are “a separate judicial unit” from Powell’s judgment. The sparse factual findings made by the circuit court concern only Park Plaza and ERMC’s severed cross-claims. It is only the cross-claims against Sbarro Franchise Co., LLC, and Kahala Franchising, LLC, that act as a bar to jurisdiction, and those claims were neither discussed nor contemplated in the Rule 54(b) certificate. No factual findings were made to demonstrate why there is no just reason to delay this action because of the pending cross-claims. Therefore, we must conclude that the Rule 54(b) certificate is insufficient to vest jurisdiction with this court and dismiss the appeal without prejudice.
Dismissed without prejudice.
Whiteaker and Brown, JJ., agree.
. Severed claims become independent actions, each of which would yield a final order upon completion. Ellis v. Agriliance, LLC, 2012 Ark. App. 549, 2012 WL 4668317.
. The order of dismissal of the cross-claim against Kahala Franchising, LLC, does not specify whether it is with or without prejudice. Because it was the first dismissal, it is a dismissal without prejudice. See Lemon v. Laws, 305 Ark. 143, 806 S.W.2d 1 (1991).
.Once the record on appeal is lodged, a circuit court loses jurisdiction. See Myers v. Yingling, 369 Ark. 87, 251 S.W.3d 287 (2007).
. We also acknowledge that Park Plaza and ERMC do not abandon any pending but unresolved claims in their notice of appeal. The inclusion of this language would have been sufficient to vest jurisdiction with our court. Ark. R. App. P.—Civ. 3(e)(vi). | [
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Mehaeey, J.
The appellant was convicted in the Jefferson circuit court of the crime of murder in the second degree and his punishment fixed at imprisonment in the state penitentiary for 21 years. The case is here on appeal.
Mrs. Mildred Seifert, a sister of Henry Jones, the man that was killed, testified that she operated a restaurant and also rented out rooms ;-her brother, Henry Jones and his wife occupied rooms there, as did the appellant, Earnest Decker; Decker was indebted to her in the sum of $15.05 which she had requested him to pay; on the night preceding the killing.she saw Decker in front of her place and told him she needed the money; he said he did not have any money and did not know when he would have; later on that night about 11 or 11:30 the appellant came into witness ’ place and asked who had been in his room and taken his clothes; she told him it was probably her mother; that she told them to get the clothes and hold them for the rent, as Decker was going to move; they had' some words about the clothes and debt and appellant told her she could keep the clothes, but nothing else, and he further said that if he had seen anyone coming out of the room with his clothes, that would be the last room they would ever come out of, and said there was going to be trouble; they then had some words about how much of his clothes they would hold and finally appellant walked ■away; she heard someone knocking at Mrs. Jones’ door the next morning and calling for Ollie; when she told him Ollie was out appellant told her that when she was dressed he-wanted to see her a few minutes; later Mrs. Jones came upstairs with her sick baby, and when she found out that appellant had been there she sent for her husband, Henry Jones; her husband went to appellant’s room at the request of witness, and was not at that time carrying anything; he came back later and got the suitcase containing appellant’s clothes and carried them to appellant’s room; the suitcase contained everything except appellant’s overcoat and suit; the next thing she heard was someone calling Henry, and Mrs. Jones going down to the room; about this time she heard one shot fired; she ran out, met Mrs. Jones coming from the room crying, and went to the door and met appellant and another man and also a lady whom she did not know; witness asked Decker why he killed Henry and Decker said Jones tried to kill him; she called him a liar as Jones had left the room with nothing in his hand but the suitcase. Witness stated that her brother was 27 years old and weighed about 185 pounds; when she entered the room Jones was lying on the floor with his feet near the front door and his head near the door to the closet; she did not see a gun in the room and did not look for one; appellant never refused to pay his debt, but said he did not have the money; he did not always pay her when he had money; on one occasion stated to her that he would-not give her his last two or three dollars and go around broke.
There were several other witnesses who testified, corroborating Mrs. Seifert.
The appellant testified that he lived at Pine Bluff in a rooming house, renting from Mrs. Seifert; he never had any- dealings with any other person about renting the room; he was a painter and decorator by trade, but on August 7 was hired as a special police officer; he had known the deceased four or five years; he roomed with Mrs. Seifert and took his meals at her restaurant and at one time owed her between $40 and $45. On August 7 he owed her about $10. On that date Henry J ones came into his room and asked if he had sent for him and told him Mildred said that he had; upon being told that witness had not asked for him, Jones left and returned in about five minutes bringing two suitcases that had been carried out of his room together with practically all of his clothes and some other objects; he talked to Mrs. Jones about these articles earlier in the morning; she asked him if he wanted the suitcases and he said he would get them later; witness stated that when Jones entered his room he asked what were all the things he was telling about his wife and witness denied it; Jones then cursed him and accused him of talking about Mrs. Seifert; witness told him that his (Jones) wife had always been a friend to him and he did not want to have any trouble; that Jones’ wife was probably mad because the witness and Jones had been “honky-tonking” around and coming in late; witness then told J ones to leave the room, but instead of that Jones stepped to the dresser and grabbed a pistol, cursing him, and said he would kill witness with his own gun; witness then jumped up and grabbed-Jones and in the scuffle he was trying to twist the gun out of Jones’ hand, and when-he practically had it out of Jones’ hand, Jones jerked back, stepped into one of the suitcases, fell back, and the gun went off; that at the time'the door to the room was shut, having been closed by Jones when he came in with the suitcases; that- the first time Jones came, nothing out of the way was said, and when he came the second time witness did not know he was mad; he did smell the odor of whiskey on Jones’ breath, and from what J ones said thought he must have been mad on the second trip, but witness said he could not have gotten away without being shot or injured; that Jones was between him and the door'; this was his room; he had rented it, but not from Jones; that he had no dealings with Jones; Mrs. Jones, the mother of deceased, and also his wife, assaulted witness after the killing; he stated that J ones threatened to kill him.
On cross-examination he stated that he had done nothing to Mrs. Jones to cause Mr. Jones to get mad, and Jones bad no reason for killing him; that he did owe Mrs. Seifert some money and that she had ordered him to leave; that he called the sheriff on August 7 and asked if there was a way for him to get his clothes without paying the bill; he also called the prosecuting attorney and was told the best thing to do was to pay the bill; he had known Jones some time; Jones was about 27 years old, and the witness was 35; when in good health weighed about 150 and 160, but at the time of the shooting weighed only about 140; before the shooting he had done Jones no harm, was not mad at him when he brought the clothes in. Witness identified on a picture where he was standing when Jones came in and pointed out where the gun was lying on the dresser; that when Jones started toward him with the gun he ducked, grabbed it and grabbed Jones by the wrist. Witness was then handed the gun and told to turn it around and attempt to shoot himself as. he said Jones was shot. He stated that he grabbed Jones and Jones stumbled over a suitcase and the gun went off; he denied that he told Mr. Voris that he caught Mr. Jones’ wrist with one hand and the elbow with the other and twisted the gun up against him and fired.
It would serve no useful purpose to set out the testimony in detail. The only question argued by appellant is the court’s refusal to give the following instruction requested by appellant:
“You are instructed that if you find from the evidence the defendant actually thought of the circumstances and appearances by which he was surrounded at the time of the killing; and that he honestly, and without fault or carelessness, believed he was in danger of losing his life or of receiving bodily harm at the hands of the deceased and that it was necessary to shoot the deceased in order to prevent such harm to himself, and that he fired the fatal shot for this purpose, the accused must be acquitted, although the jury may now believe from the evidence that the accused was mistaken in his conclusions as to the danger to himself and that in fact there was no danger threatening him, and no necessity for shooting the deceased; that the jury must judge the danger from the standpoint of the defendant under all of the circumstances of the case as shown by the- evidence, and not from the standpoint of the jury.”
There are two reasons why it..was not error for the court to refuse to give this instruction. The first is that there was no testimony tending to prove the facts set forth in the instruction. Appellant himself testified that Jones stepped back into a suitcase and fell back and the gun went off; that appellant and Jones were in a souffle and he was trying to take the gun away-from Jones. ..
The court gave of his own motion an instruction, based on the evidence, which is as follows;
“If you believe from the evidence in this case.that the deceased attacked the defendant with a pjs.toi and that the defendant, anting in good faith and without fault or carelessness on his part, honestly believed that he was. in danger of losing his life or of receiving some great-bodily harm at the hands of the deceased, and that he then, grappled with the deceased and that in a struggle over the possession of the pistol it was discharged and the deceased thereby killed,-then the defendant would be-entitled, to an acquittal.” .. ' ■
The instructions given by the eo.urt .correctly stated, the law to the jury, and were as favorable to appellant as. he had any right to ask.
The judgment is affirmed. | [
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Baker, J.
On May 4,1937, the plaintiffs, William B. Cady, Louis B. von Weise and Mississippi Yalley Trust Company, Trustees under the will of P. D. 0. Ball, deceased, and Margaret Ball Cady, in her own right, filed suit in the circuit court of Miller county against E. B. Guess. This suit was to recover judgment on- two certain promissory notes dated November 24, 1930, payable to. P. D. C. Ball, with interest from maturity at the rate of 6 per cent, per annum. One of the notes was for $2,500, due January 10, 1931, and one for $1,500, clue January 20,1931. The $2,500 note was credited, on June 20, 1931, with $1,000. The note is indorsed: ‘‘Without recourse on us” and is signed by Louis B. von Weise and Ella M. Jacoby. Executors under the will of P. D. C. Ball. The second note bore the same indorsement signed by the same parties. It had no payment credited thereon.
Guess answered denying every material allegation of the complaint and pleaded the statute of limitations. The plaintiffs then amended their complaint and set out in the amendment three letters written by the executors of the estate of P. D. C. Ball, deceased, and one written by Guess. The first of these letters is dated June 27, 1935, and is as follows:
“Estate of
“Mr. E.B. Guess, “July 27, 1935
“c/o Huning Mercantile Company,
“Los Lunas, New Mexico.
“Dear Sir:
“We are executors of the estate of P. D. C. Ball, deceased.
“We hold your notes dated December 3, 1930, to Mr. Ball, one for $2,500 due January 10,1931, upon which you paid $1,000 on principal June 30,1931, leaving an unpaid balance of $1,500, and the other note for $1,500, due January 20, 1931, with interest at 6 per cent, from; date.
“We are compelled to insist that you make payment of these notes at an early date.
“Yours truly,
“Louis B. von Weise,
“Ella M. Jacoby,
“Executors, Estate of
“By” P. D. C. Ball, Deceased.
The second letter was dated Ang’ust 2, 1935, and is as follows:
“August 2, 1935.
“Mr. E. B. Guess,
“Boswell, New Mexico.
“Dear Mr. Guess:
“We addressed a letter to you at Los Lunas, New Mexico, in care of the Huning Mercantile Company. The Huning Mercantile Company returned it to us and advised they thought you could he reached at Roswell.
“Therefore, we are reforwarding the letter to you and ask that you kindly let us have a reply promptly. “Yours very truly,
“Louis Y. von Weise,
“Ella M. Jacoby,
“Executors, Estate of
P. D. C. Ball, Deceased.
“By”
Both of these letters were addressed to E. B. Guess, the first in care of Huning Mercantile Company, Los Lunas, New Mexico, and the second addressed to him at Roswell, New Mexico. A letter by Mr. Guess, written from Dallas, Texas, to Miss Jacoby, is as follows:
“Hotel Adolphus
“Dallas, Texas
“August 28th, ’35.
‘Dear Miss Jacoby:
“Your letter 2nd reached me here and I hardly know how to answer for I’m unable to do anything on. the matter at the present time. I was caught in this jam and all but squeezed to death. On top of all the other' worries I had, I had a sudden heart heart attack, went to the hospital last September remained there until February. Since then all I have been able to do is to get in other people’s way.
“As you know after buying this stuff from Mr. Ball the oil business went from bad to worse and I was never able to realize anything from it, as well as many other things I had.
“I think I may be able to send yon $500 by October 10th and follow np with $100 a month until paid or as long as I live. I realize this is a very sorry offer but don’t see how I can do any better as all of my assets have been wiped out and all I can depend on is do what I can and hope for a lucky strike.
“Wish you would kindly write me here and say how you feel regarding the above. I am
“Most sincerely,
“(Signed) E. ¡B. Guess.”
The answer to said letter was an acceptance of his proposition.
It can be of no real benefit to the parties, or counsel to set forth with minute detail such facts as were disclosed in the evidence. We think it sufficient to state our conclusions in the matter.
Miss Jacoby wrote the letters addressed to Mr. Guess, according to her testimony, and Mr. Guess wrote the one letter, to which his name was signed. Her first letter, dated July 27, 1935, and sent in care of the Hun-ing Mercantile Company, she says, was returned to her by that company, which advised her that Mr. Guess could be found at Boswell, New Mexico. The second letter, which we have copied above, dated August 2, 1935, was written by Miss Jacoby to Mr. Guess at Boswell. All that letter stated, as will be observed from the copy' above, was that the Huning Mercantile- Company had returned the letter of July 27, and advised that it thought he could be reached at Boswell; that she was ‘ ‘ ref on-warding ’ ’ the'letter and asked for a reply. We direct attention especially to the foregoing statement in regard to this second letter written by Miss Jacoby. It certainly did not call for a reply, but it desired a response to the letter which was “reforwarded” and dated July 27. In that letter special attention is called to the two notes, their amounts, maturity dates, and interest rates, and there was an insistence that settlement be made at once.
Upon the trial of the case Miss Jacoby testified, and the effect of her testimony, as we understand it, is that she forwarded to Mr. Guess the letter written July 27 at the time she wrote the letter of August 2nd. The principal argument made is that Miss Jacoby was not certain in regard to forwarding this letter. It is urged that her testimony in that respect is so unsatisfactory that the court was justified in finding that the letter of July 27th was not forwarded by her nor was it received by Mr. Guess, and since the court had so found the facts, these letters did not serve to toll the statute of limitations, as to these notes, for the reason that the indefinite and uncertain response made by Mr. Guess did not sufficiently identify the debts or obligations concerning which he wrote. The trial court no doubt had that, idea and rendered judgment accordingly in favor of Mr.' Guess.
The appellants insist that the judgment of the trial court is not only not supported by any evideuce, but that it is contrary to all the evidence produced. Argument is offered by appellee that the evidence is not sufficient to show that these letters were properly addressed, stamped and posted, and that, therefore, the presumption' of delivery does not obtain.
Numerous authorities are cited, some, the most interesting of which, are as follows: Southern Engine & Boiler Works v. Vaughan, 98 Ark. 388 135 S. W. 913, Ann. Cas. 1912D, 1062; Taylor v. Corning Bank & Trust Co., 183 Ark. 757, 38 S. W. 2d 557.
The view we have of this case, however, makes the questions of law suggested of no great importance. True, we would have little doubt about the delivery of these letters to Mr. Guess if left solely to the testimony of Miss Jacoby. It is apparent from the foregoing letters that the appellants do not have to rely upon the legal presumption of the delivery of the letters. It is argued that Mr. Guess merely answered by his letter, written from the Adolphus Hotel, Dallas, Texas, on August 28, the letter of August 2, admittedly received by him, not the request for an answer as shown upon its face to the letter dated July 27. The letter he admits he received did not demand an answer. It merely called his attention to the fact that the message intended to reach him was the letter written July 27, and had been forwarded and a reply was re quested to it. The contents of Mr. Guess’s letter, dated August 28, must be regarded, as an answer to the letter in which Miss Jacoby and von Weise were asking that he make settlement of the two notes, because the contents of' his letter are in regard tó his indebtedness, concerning which no mention was made in Miss Jacoby’s letter of August 2. Unless we attribute to Mr. Guess the enviable powers of a clairvoyant, we must regard his letter as a response to the letter of July 27, written by Miss Jacoby and that the notes, or amounts mentioned therein, were the subject matters about which Mr. Guess was writing. He did not deny his indebtedness; really, he conceded it. He offered to pay $500 October 10th and follow it up with $100 until paid or as long as I live.” He then says “I realize this is a very sorry offer.”
It is foolish to think that he made an offer concerning the letter above quoted, dated August 2. As soon as this letter was received Miss Jacoby again wrote Mr. Guess expressing her appreciation of his interest and she hoped he would be able to live up to his expectations and promise, advising him of the acceptance of the arrangement proposed by Mm as to payment and to the effect that the court would not compel action if he would make payment as promised.
Mr. Guess was present at the time of this trial. He did not take'the stand or testify, and certainly in a case of this kind it may be urged the presumption is that had he testified his statements would have been against his interest. Felton v. Leigh, 48 Ark. 498, 3 S. W. 638; Fordyce v. McCants, 55 Ark. 384, 18 S. W. 371. There are many later authorities supporting this doctrine.
No argument has been offered, no explanation suggested that Mr. Guess could have done more than admit that he wrote the letter of August 28, making the offer and requesting response in regard to how the executors felt concerning his proposition of settlement. It is only argued that the proof is wholly unsatisfactory to show the receipt by him of the letter dated July 27,1935. This correspondence, letters identifying the notes, constitute all the substantial testimony in this record. There is no evidence that the letter of July -27 was not received. In addition to the presumption which we think obtains here, that the letter was written and properly posted, there is in effect an acknowledgment of the receipt of the letter, so the only substantial evidence is that the correspondence properly identifiés the two notes sued on; that there is a sufficient and definite identification of the indebtedness acknowledged by Mr. Guess. There is his promise to pay and the promise is sufficient under the following authorities. 37 C. J., p. 1120, § 601; Brown v. State Bank, 10 Ark. 134; Taylor v. Cheairs, 181 Ark. 4, 24 S. W. 2d 852. The rule announced by one of the first and one of the last cases is the same in each. 37 C. J. 1101.
All the letters when read together identified the indebtedness and acknowledged it.
This being the. only substantial evidence the court erred in not entering a judgment for the plaintiffs. The judgment of the trial court is, therefore, reversed and judgment entered here for the two notes and accrued interest. | [
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Humphreys, J.
Appellee brought suit for $100 in a justice of the peace court in Sevier county against appellant for killing his bird dog on September 18, 1939, about seven o’clock p. m., in DeQueen, Arkansas, by the alleged negligent operation of its south-bound passenger train.
The justice of the peace rendered judgment for said amount in favor of appellee against appellant from which an appeal was taken to the circuit court of Sevier county where the cause was tried to a jury on the 14th day of February, 1940, with the result that the jury returned a verdict of $50 against appellant, upon which the court rendered a judgment in favor of appellee for said sum, from which is this appeal.
Appellant contends for a reversal of the judgment upon two grounds: first, that there is no substantial evidence in the record to sustain the verdict and judgment, and second, that instruction. No. 8 given at the request of appellee is in conflict with instruction No. 8 given at the request of appellant.
(1) The testimony introduced by appellee reflects that the dog was standing between the rails on the track fifty or seventy-five feet south of a crossing which was about one-fourth mile south of the depot; that the train was being pulled by a steam engine with the headlight burning; that the track was straight; that no stock alarm or distress signal was given; that the whistle was blown at the depot, but not at the other crossings two of which were between the depot and where the dog was killed; that the train struck the dog, killed him and threw him off'the track four to six feet on the east side thereof; that the dog belonged to appellee and, in the opinion of various witnesses familiar with the value of bird dogs, was worth from $25 to $100.
The testimony introduced by appellant was to the effect that they were keeping a constant lookout and giving the statutory signals required when they approached the point where the dog was claimed to be standing; that they could have seen the dog had he been there and stopped the train before hitting him, but that no dog was there and that the train ran over no dog.
There is ample, .substantial evidence to sustain the verdict and judgment. According to one witness he saw the train hit and kill the dog and that he heard no signals or warning of the approach of the train. Other witnesses testified that no signals or warnings were given. The evidence is undisputed that the track was straight and the headlight burning and that the engineer and fireman could have seen the dog standing between the rails on the track and could have stopped the train before it hit the dog had they been keeping a constant lookout as required by the statutes of the state. Pope’s Dig., § 11144.
No error was committed by the trial court in refusing to peremptorily instruct a verdict for appellant at the conclusion of the evidence.
(2) Appellant makes the further contention that instruction No. 8 given by the court at the request of ap-pellee was in conflict with instruction No. 8 given by the court at the request of appellant.
Instruction No. 8 given by the court at the request of appellee is as follows: “You are instructed that if you find .from a fair preponderance of the evidence in the case that the defendant railroad company negligently killed the plaintiff’s dog by the operation of one of its trains, your verdict should be for the plaintiff, and you are directed to assess the damages at the fair market value of the dog.”
Instruction No. 8 given at the request of appellant is as follows: “If you find from the testimony in this case that the engineer and fireman in charge of defendant’s passenger train No. 1, on the evening of September 18, 1939, were keeping a constant lookout ahead and gave the crossing signals for crossings south of the depot in DeQueen and that plaintiff’s dog was not killed on September 18,1939, you should find for the defendant.”
These instructions are not conflicting because ap-pellee alleged that his dog was killed on September 18, 1939, by appellant’s passenger train about seven o’clock p. m. The proof sustained this allegation. In instruction No. 8 given at the request of appellant the court distinctly told the jury that unless appellee’s dog was killed on September 18,1939, by appellant’s train they should find for appellant. Instruction No. 8 requested by appellee and given by the court did not tell the jury anything to the contrary.
No error appearing, the. judgment is affirmed. | [
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Smith, J.
Tlie testimony in this case is abundantly sufficient to support the finding that appellant erected a cotton gin in a residential portion of the city of Earle. When it appeared that he proposed to do so, owners of residences in the neighborhood prepared a petition of protest and it is certain that appellant knew, before erecting the gin, that residential property owners were opposed, indeed, certain of them filed suit in the chancery court to prevent the erection of the gin on the proposed location. The chancellor refused a temporary restraining order, hut, after doing so, discovered that he was disqualified on account of relationship to the appellant, a fact previously unknown to him. No further action was taken, and appellant proceeded with the erection of the gin, and finished it shortly after the 1938 ginning season opened. Later a number of residents filed a second suit seeking to restrain the operation of the gin on the ground that its operation constituted a nuisance. Soon after the second suit was filed in the chancery court, appellee filed suit in the circuit court for damages, in which he alleged that the value of his property for residential purposes had been destroyed by the gin, the allegation being that the gin was so operated as to constitute a nuisance. There was a verdict and judgment for $700 in favor of appellee at the trial in the circuit court, from which is this appeal.
The testimony on behalf of appellee was to the effect that the adjacent property is desirable for residential purposes, and was so exclusively used before the erection of the gin. Appellee’s home is located on the first lot west of the gin, and is about sixty feet from it, and there is no intervening residence or other structure between the gin and appellee’s residence. The gin was erected on lots where there had once been a retail lumber shed, but there was no other business property in the immediate vicinity, and the witnesses for appellee testified that the shed had caused no annoyance.
A number of witnesses owning property in the vicinity of the gin testified that it was a source of constant annoyance in the ginning season. During the height of the ginning season the gin operated on a 24-hour schedule. Persons congregated about the gin at all hours of the day and night, and much noise was made by the numerous persons whose wagons were waiting to he unloaded. There was a vibration from the operation of the gin which was annoying, and electric lights were burned when the gin operated at night.
It was shown that during one season the gin caught fire forty-sis times, and was a constant fire hazard. Appellee testified that on this account his insurance was canceled, and he had been unable to obtain additional insurance.
The testimony in appellee’s behalf is to the effect that on account of the proximity of the residence to the gin its roof is covered with flying lint and the dust and mote from the gin penetrates the windows and the doors when they are open, and settles on the walls of the rooms and the furniture in the house. The lint settles in the meshes of the screens of the windows and doors, and darkens the house by excluding the light, and it is necessary to keep the windows down and the doors closed, and this excludes the air. It was shown that flying lint cotton adhered to a wire fence between appellee’s residence and the gin, and that this lint ignited and burned the fence.
Without further detailing the testimony, it may he said that it shows that the location of the gin has depreciated the market value of appellee’s property as a result of so operating it as to constitute it a nuisance.
It is insisted that the suit should he abated for the reason that there was pending in the chancery court a suit to abate the gin as a nuisance.
A gin is not a nuisance per se. The operation of gins is essential in this cotton country, hut this neces sity does not confer the right to erect a gin in a residential section of a city or town and to so operate it that it becomes a nuisance and destroys or reduces the market value of adjacent property.
The chancery court might or might not have abated the gin by ordering that it should suspend operation or be removed. Indeed, a temporary restraining order was denied.
In the case of Murphy v. Cupp, 182 Ark. 334, 31 S. W. 2d 396, we quoted with approval the following statement of the law from 21 Cyc. 708: “ ‘Where the claim to relief is based upon the use which is to be made of a lawful erection, the court will ordinarily refuse to enjoin the construction or completion of the erection; but in such case the defendant, if he proceeds, does so at his peril and is liable to -an injunction or an action of damages if such use results in a nuisance. If a building of itself will be a nuisance, its erection may of course be enjoined.’ 21 Cyc. 708.”
The law applicable to the facts and issues in this case has been stated in a number of our cases cited in the briefs of opposing counsel, and a concrete application thereof is made in the case of Southern Ice & Utilities Co. v. Bryan, 187 Ark. 186, 58 S. W. 2d 920, to facts not essentially different from those in the instant case. There, an ice plant had been erected in a residential section, and was so operated as to be a nuisance. It was there held that under these facts an adjacent property owner might recover damages to compensate the depreciation in the-market value of his property, and that the measure of his damage is the difference between the market value immediately prior to the erection of the plant and its market value after the erection is complete and operation begun.
The instructions to the jury gave this as the measure of damages, and it is insisted that this rule is not correct, and is contrary to the weight of authority on the subject, and that the correct measure of damages is the impairment of the value of the use of the property during the continuance of the nuisance. Cases from other jurisdictions are cited which approve this measure of damages. It appears from the opinion in the Bryan case, just cited, that we were there urged to adopt this measure of damages, but declined to do so, holding that the difference in market value was the measure of recovery.
It is finally insisted that the verdict is excessive, and that the court erred in failing to grant a new trial on account of evidence discovered since the trial which would have shown it to he so. The basis of this contention is that plaintiff, in testifying as to the value of the property, stated that he purchased subject to numerous forfeitures for general and special taxes, municipal .and otherwise, and that it cost him about $800 to clear the title from the tax sales and forfeitures, whereas the amount expended on this account was only $339.60.
It must be remembered, however, that this is not a suit to recover taxes, and the testimony as to the amount of taxes paid was of value only as showing the purchase price. But the price paid for the lots was not conclusive of its market value, but was only a circumstance to consider in determining the market value. The purchaser may have bought the property for less than its market value or may have paid more.
All of the witnesses who testified as to the market value of the property did so without reference to the delinquent taxes. Appellant himself placed a value on appellee’s property of $1,250, and his only other witness, testifying as to value, placed it at from $1,500 to $1,600. The witnesses testifying in behalf of appellee placed the value at from $3,000 to $3,500 before the erection of the gin, and these estimates of value were made without any reference to the amount of taxes paid. It appears, moreover, that there was no cross-examination of appellee upon the subject of the amount of taxes paid. Had he been asked in and for what years the lots had been sold for taxes, and the amount of taxes for the nonpayment of which the property had been sold, it would have appeared that appellee had made an exaggerated estimate of the amount of taxes which he paid. But, even so, as has been said, this was a collateral question bearing npon the purchase price, which was not conclusive of market value.
We conclude, therefore, that this was not such newly-discovered evidence as required the granting of a new trial on account of its discovery. Witnesses for appellee who placed the value of the property before the erection of the gin at from $3,000 to $3,500, testified that the value had been reduced by half, and one witness testified that the value of the property for residential purposes had been totally destroyed.
The testimony is, therefore, sufficient to support the verdict, and as no error appears the judgment must be affirmed, and it is so ordered. | [
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PER CURIAM
hln 2000, Phillip D. Williams was charged with one count of capital-felony murder in the death of Eldrick Williams, two counts of aggravated robbery, and one count of misdemeanor theft of property. In 2001, a Pulaski County jury convicted Williams on all counts, and the trial court sentenced him as a habitual offender to life imprisonment without parole for capital murder and twenty-year terms of imprisonment on each of the aggravated robbery convictions. The sentence for misdemeanor theft of property merged with his felony-conviction sentences pursuant to Ark. Code Ann. § 5-4-404(c)(1) (Supp. 2001). We affirmed. Williams v. State, 351 Ark. 215, 91 S.W.3d 54 (2002)
Now before us is Williams’s pro se petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis in the case. The petition for leave to proceed in the trial court is necessary because the trial court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant 12permission. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000). Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Westerman v. State, 2015 Ark. 69, at 4, 456 S.W.3d 374, 376; Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771.
The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition had it been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Newman, 2009 Ark. 539, 354 S.W.3d 61. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Roberts, 2013 Ark. 56, 425 S.W.3d 771. The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. A writ of error coram nobis is available for addressing certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. These categories, however, are not absolute and may be expanded when there is a showing of a procedural gap whereby a petitioner in a particular case would be denied due process of law if a coram-nobis proceeding were not allowed to fill the void. See Strawhacker v. State, 2016 Ark. 348, 500 S.W.3d 716; see also Pitts v. State, 2016 Ark. 345, 501 S.W.3d 803.
As grounds for the writ, Williams asserts he has obtained newly discovered evidence in the form of a sworn affidavit from Kareem Holloway, who testified against Williams at | atrial, that gives an entirely different account of the events that resulted in Williams being charged with, and convicted of, the offenses. Williams has appended the affidavit to his coram-nobis petition.
It will suffice to say that it is well settled that a claim of recanted testimony, standing alone, is not cognizable in an error-coram nobis proceeding. Stenhouse v. State, 2016 Ark. 295, at 4, 497 S.W.3d 679 (per curiam); see also White v. State, 2014 Ark. 348, at 2, 438 S.W.3d 916, 918 (per curiam); Smith v. State, 200 Ark. 767, 140 S.W.2d 675 (1940) (holding that the writ was not available to afford relief on the ground that the principal witness against the accused had recanted and that others since the accused’s conviction had confessed to the crime). This is so because a writ of error coram nobis may not be used to contradict any fact already adjudicated. Smith, 200 Ark. 767, 768, 140 S.W.2d 675, 676. Even claims involving a victim’s sworn statement recanting his or her testimony do not warrant issuance of the writ. Riley v. State, 2015 Ark. 232, at 2-3, 2015 WL 2452524 (per curiam); Thomas v. State, 367 Ark. 478, 241 S.W.3d 247 (2006) (per curiam). The presentation of evidence in a coram nobis petition that attacks the credibility of a witness at trial, such as recantation of testimony, constitutes a direct attack on the judgment. See Riley, 2015 Ark. 232, at 3; see also Malone v. State, 294 Ark. 127, 741 S.W.2d 246 (1987) (per curiam) (The affidavit of a witness recanting his or her trial testimony is a direct challenge to the judgment of conviction.). Direct attacks on the judgment of conviction are properly made at trial and on the record on appeal. See, e.g., Dickerson v. State, 2011 Ark. 247, 2011 WL 2155375 (per curiam).
As for Williams’s assertion that Holloway’s affidavit is newly discovered evidence, the affidavit is, as stated, a direct recantation of trial testimony. As such, it is not a ground |4for the writ regardless of how it is labeled by the petitioner. Williams’s coram nobis petition is a statement of his version of the events that led to the death of Eldrick Williams, coupled with Holloway’s affidavit that supports, to some extent, Phillip Williams’s version of the events. In short, the petition is a claim that the evidence adduced at trial was not accurate. Claims that challenge the evidence adduced at trial are not within the purview of a coram nobis proceeding. The sufficiency of the evidence is a matter to be settled at trial and on the record on direct appeal. Washington v. State, 2014 Ark. 370, at 5, 439 S.W.3d 686, 689 (per curiam).
Petition denied. | [
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Humphreys, J.
This is an appeal from a decree of the chancery court of Union county, second division, rendered on the 12th day of January, 1938, dismissing the complaint of appellants for the want of equity and quieting and confirming the title to the northeast quarter of the southwest quarter, section 26, township 18 south, range 17 west, including all of the oil, gas and other minerals thereunder, in fee simple absolute in appellees, Lizzie Moore, A. B. Moore, J. "W. Moore, W. F. Moore, Elizabeth Sloan and Neil Sloan, as the widow and heirs of J. B. Moore, deceased, against the claims of appellants, Mattie Daniels and John-Daniels or either of them.
The issues joined in the pleadings were, first, whether a warranty deed executed to said 40-acre tract of land from Mattie Daniels to J. B. Moore, deceased, of date November 23,1923, was intended as a mortgage although in form a deed; second, and if a deed whether appellants had acquired the title back to said 40-acre tract by adverse possession; and, third, whether appellants were estopped by laches from claiming the instrument to be a mortgage although in form a deed.
The record reflects that on September 12, 1918, John Daniels purchased from Jackson McCorvey said 40 acres of land, together with 120 acres adjoining same. A vendor’s lien was retained in the deed for $1,500 to secure the purchase price.
John Daniels acquired 80 acres of land in section 24, giving him in all 240 acres of land in sections 24 and 26.
On October 1, 1920, appellants mortgaged all the land they owned, or 240 acres in the two sections, to the Federal Land Bank in St. Louis. McCorvey satisfied his lien on the 160-acre tract so that the Federal Land Bank would have the first mortgage thereon. McCorvey then took a second mortgage on the entire 240 acres in sections 24 and 26 to secure the balance due him for purchase money on the 160-acre tract and took notes from appellants for the purchase money. These notes were subsequently bought by the First National Bank of Junction City, Arkansas.
John Daniels then borrowed some money from the First National Bank of Huttig, Arkansas, and to secure same executed a mortgage on his crops and live stock. The chattel mortgage was lost when J ohn Daniels turned warehouse receipts for his cotton in the fall of 1920 over to the Huttig bank, but in January following he procured these receipts from said bank for the purpose of selling the cotton and accounting to the bank for the proceeds. He sold the cotton, but failed to pay the bank the proceeds thereof and left the country. The chattels pledged in the mortgage had also been disposed of by him when leaving. The Huttig bank, in order to protect itself, prevailed upon the Junction City bank to foreclose under its power in the mortgage on the 240 acres of land and at the sale of the property purchased same for sufficient to pay the Junction City bank and also the indebtedness due the Huttig bank, and the trustee in the mortgage made the Huttig bank a deed to the property for the 240-acre tract of land. This deed, through mistake, recited that the mortgage was owned by the Huttig bank, instead of the Junction 'City bank.
• J ohn Daniels was indicted for disposing of the mortgaged property and was arrested in California and brought back to Arkansas and placed in the Union county jail.
While-he was in jail on May 11, 1921, he executed a mineral deed to J. B. Moore on the 240 acres of land and on the following day conveyed all of the land to- Mattie Daniels, his wife, reciting in the deed that it was subject to a deed previously executed to J. B. Moore.
It appears that in June, 1922, Mattie Daniels executed to J. B. Moore a deed to the 40 acres in controversy here. This deed was lost and on November 29, 1923, Mattie Daniels executed another deed for said 40-acre tract to J. B. Moore which contained a recitation that it was given in lieu of a former deed executed by the vendor about June, 1922.
There is testimony in the record, introduced by appellants, tending to show that the mineral deed executed on May 11, 1921, by John and Mattie Daniels to J. B. Moore was executed and delivered to J. B. Moore to secure an attorney’s fee of $100 for representing him in the criminal .charge against him and for bringing a suit to set aside the sale of the lands under the foreclosure proceeding of the Junction 'City bank at which foreclosure sale the Huttig bank bought the lands, and that the two deeds executed by Mattie Daniels to the 40-acre tract in question herein were executed by her in substitution for the mineral deed to secure said $100 fee.
John Daniels plead guilty to the criminal charge and through the efforts of J. B. Moore was pardoned and J. B. Moore brought a suit for the appellants herein to set aside the mortgage foreclosure aforesaid. The suit to set aside the mortgage foreclosure was later compromised. During the pendency of the suit appellants herein and J. B. Moore entered into a contract with the Atlantic Producing Company and J. W. Olvey for the sale of an oil and gas lease upon the entire 240 acres of land. Prior to the foreclosure sale appellants had sold one-half of the minerals on 40 acres of said land described as northeast quarter of the southwest quarter, section 26, township 18 south, range 17 west to W. B. Johnson, and W. B. Johnson joined with the appellants and J. B. Moore in making the contract and leases with the Atlantic Produc ing Company and Olvey. These leases were attached to an escrow agreement, which agreement reflected that the total consideration for the leases was $3,000. Under the terms of the escrow agreement J. B. Moore was to be paid $500 for his mineral interest in the- 40-acre tract in question and $1,250 for his mineral interest in the other 200 acres and he allowed appellants to use the $1,-250 in making the settlement with the Huttig hank.
A compromise was effected in the suit J. (B. Moore had brought to set aside the foreclosure sale and the two hanks received $3,000, $2,100 being paid in cash and appellants gave the Huttig bank a mortgage to secure the balance of. $900.
The 40 acres involved in this suit was conveyed by a quitclaim deed by the Huttig bank to J. B. Moore and this 40-acre tract was not included in the mortgage appellants executed to the Huttig bank to secure the $900 balance they owed it.
The money received with which the claim of the banks was settled was a part of that received by appellants from the lease to the Atlantic Producing Company.
The 40-acre tract in controversy was the middle 40 John Daniels bought from Jackson McCorvey. When John 'Daniels bought this land he moved in a house on one of the other 40’s and has since lived upon the 160-acre tract. The 40 acres in controversy was included within the fences upon this homestead and some five or six acres of said 40 were cultivated by John Daniels. John Daniels made no improvements upon it further than keeping up the fences. After making the warranty deed to J. B. Moore on November 29, 1923, by Mattie Daniels, J. B. Moore in his lifetime paid the taxes thereon until his death on September 11,1926, and thereafter the taxes were paid by the Moore heirs until the institution of this suit. After the deed was executed to J. B. Moore to said 40-aere tract the Daniels continued to pay the taxes on the other 200 acres they owned.
When J. B. Moore died one of his sons, W. P. Moore, administered upon his estate and his three sons went to El Dorado for the purpose of looking into his affairs. They had conversations with John Daniels at that time and several conversations afterwards relative to the 40-acre tract in controversy and were told by him that they conveyed a one-half interest by mineral deed to J. B. Moore, their father, to 240 acres, and later the warranty deed for the 40 acres in controversy to him also in payment for representing him in lawsuits. They also testified that it was agreed between them and him that he would take care of the 40-acre tract in controversy and keep the fences up around it and prevent people from cutting the timber on it for the use of six or seven acres which were in cultivation on it.
John Daniels denied that he made such statements to them or any such arrangement with them, but that he informed them at that time that both instruments were given to secure the $100 fee he owed J. B. Moore and that the fee was afterwards paid.
Witnesses who resided hi the community where the 40-acre tract was located testified pro and con relative to whose property it was. Some of them testified that it was generally understood to be the property of appellants and others that it was understood to be the property of J. B. Moore or the Moore heirs. Other witnesses testified that Daniels cut and sold timber off of the 40-acre tract -for his own use and benefit and others that he informed them that the land belonged to J. B. Moore and that he had no right to sell timber off of it.
There are other circumstances revealed in the record tending to show that the mineral and warranty deeds were intended as mortgages and other circumstances tending to show that they were both intended to be absolute deeds. It would extend this opinion to great length to set out all the evidence introduced in the case. After a very careful reading of the record we'are unable to say that the chancellor’s finding and decree is contrary to a preponderance of the evidence. This suit was not brought during the lifetime of J. B. Moore and not until about eleven years after he died. It could have been brought within his lifetime as well as a long time after he died. If it had been brought in his lifetime his lips would not have been sealed by death so that he could not testify relative to the original transactions. By waiting for more than fifteen years to bring this suit the Moore heirs have been deprived of his testimony.
We do not think this evidence is of that clearness required under the law to say that a deed absolute upon its face was intended to be a mortgage. The rule relative to the character of the evidence required to prove that a deed in form was intended as a mortgage was recently re-announced and re-affirmed in the case of Burns v. Fielder, ante, p. 85; 122 S. W. 2d 160, in the following language:
“The evidence necessary to impeach the solemn recitation of the deed mnst be clear and convincing. . . . such evidence must be so clear that reasonable minds will have no doubt that such an agrément was executed. It must be so convincing that serious argument cannot be urged against it by reasonable people.
“. . . Business transactions must have finality. Conveyances must not be exposed to the caprice of parol, nor explained away by less than that quantum of evidence which essentially attains the dignity of clarity, impressing conviction. ’ ’
We do not think the record in this case meets that requirement.
There is also a general rule to the effect that the retention of the possession of vendors after the execution and delivery of a deed is presumed, to be in subordination of the title conveyed and the statute of limitations will not begin to run until notice of the hostility of their claim is actually given to the grantee. This rule was well stated in the case of City of Stuttgart v. John, 85 Ark. 520, 109 S. W. 541. We do not think this presumption was overcome by a preponderance of the evidence. During the period the 40-acre tract was occupied by appellants the trial court had a right under the record in this case to find that appellants’ possession of. the 40-acre tract after the execution of the deed was attributable to their tenancy and not to their ownership or claim of ownership. We are also of opinion that even if the findings and decree of the trial court were not sustained by a preponderance of the evidence under tbe rule announced above that appellant should be denied a recovery on account of their inexcusable delay in bringing their suit. The first deed to the 40-acre tract was executed in 1922 and the second in 1923 and according* to appellants ’ contention the debt was paid in 1926. This suit was not filed until September 25, 1937, more than fifteen years after the execution of the deed and more than eleven years after the time when appellants claimed that J. B. Moore was paid for his services. J. B. Moore died in 1926 and appellees herein have been deprived of his testimony as to the true nature of the original transactions and because of appellants’ delay it has, of course, become difficult for the Moores to prove just what the original transactions were. On account of this unnecessary delay and the loss of the testimony of J. B. Moore who might speak relative to the original transactions the doctrine of laches should be applied, and for that reason as well as the findings and decree of the chancellor should be affirmed, which is accordingly done.
Holt, J., dissents. | [
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Baker, J.
These two cases upon appeal furnish us with a voluminous record, a large abstract, with briefs on behalf of each of the two appellants, a brief by appellee and a reply brief by appellants. Any analysis of all this record would be too tedious for the benefit that might be derived therefrom. It would seem, however, that the two cases combined here on appeal, as they were upon trial in the circuit court, are hand made for a prolonged discussion. The ultimate conclusions that we have reached necessitate a reversal of one of the judgments rendered and a remand for a new trial, and an affirmance of the other and, since that is true, it will be our purpose to point out and state in the most concise manner available the particular errors that require a reversal, making the least comment possible.
Eight young people were in an automobile belonging to the appellant, H. F. Parker. They made a short trip from Tamo along what is known as the Tamo Pike, a paved highway to Pine Bluff. At Pine Bluff they visited several roadhouses where they had some drinks and danced. After an hour or two of pleasure, in going from one place to another and dancing, they started on their return trip from Pine Bluff to Tamo, where several of the young people were staying at the particular time, though they were there on a visit from other communities. Upon the return trip, at about 11:30 at night, they had a most serious accident in which Miss Retha Belle Albritton was injured so badly that she died, and H. F. Parker, the owner and driver of the automobile, himself seriously injured. The administrator of Miss Albritton’s estate sues to recover on account of her injuries and death. Parker also sued on account of the injuries and loss sustained by him. They have alleged that the injuries were occasioned or caused by the operation of two trucks upon the highway, belonging to the appellee. One of the trucks had broken down so that it could not move on its own power and was being towed by another, the coupling, or tow-line, or cable being attached to the front truck and extending back some feet was there tied to the rear truck which Avas being towed toward Pine Bluff. It Avas alleged this tow-line Avas so tied or attached to each of the trucks and that it was of such length, that as the two trucks proceeded upon the highway, to cause the drawn truck to sway or swerve in and out from a direct line as it followed the lead truck, swaying or sAverv-ing across the middle or black line in the highway; that, it was without lights; and, in the darkness of the night, Parker, in driving the automobile, could not avoid being struck by the truck as it swayed from the straight driveway; and, at the time of the contact, or collision, there was a bloAvout of a tire on his car and the car proceeded from that point on, not in a straight line cloAvn the highway, but sAverving’ to the left, causing’ the car to run into a culvert; that the car Avas practically destroyed, that the personal injuries and death, for which the suits were brought and maintained, were suffered.
It seems that the parties to this litigation, in the zeal, or desperation of their attempts to sustain their respective positions, Inwe gone somewhat far afield in some •respects and we call attention to it not by way of criticism, but in the hope that many of the immaterial matters, as they seem to us, might be omitted from the future trial. We mention this here and will perhaps call attention to some others as we proceed to a discussion of different steps and alleged errors in the development of the case. It is most seriously argued that the appellee was upon a highway with these trucks, at a late hour, in the darkness of the night. 'Of course, it is understood generally that conditions and circumstances that prevailed at the time are matters that must be considered in determining what may or Avhat may not be negligence, but certainly it could n ever be negligence to make use of the highway Avhether in darkness or daylight; that the correlative rights of those people Avho drive upon the high-Avavs arc equal, Avhether it be in the darkness of night or otherwise.
We shall state just so much of the evidence in this case as may be necessary to an understanding of the matters under discussion.
These young people as they drove about the city of Pine Bluff, and as they Avere seated on the way home, after the night’s pleasure and entertainment, were four in each seat. As hereinbefore stated they had been to places where they had 'bought some drinks, including the usual so-called soft drinks, some beer, and some gin. Appellee insisted, upon instructions, based upon the theory that at least the driver of the car was under the influence of intoxicating liquors to the extent that he was reckless or an unsafe driver; that all of them were engaged in a common purpose or joint enterprise in the search of their entertainment and pleasures and that the negligence of one was the negligence of all. Certain instructions given, certain, authorities cited to sustain the certain instructions indicate clearly that theory on the part of the appellee in the trial of this case. The suit, however, brought by Albritton as administrator, is 'brought and prosecuted upon the theory that the young lady entered the car as a guest and remained one throughout the entire evening as they went about from place to place and upon their return home. Without going into a minute or detailed discussion of either theory pre-' sented to us by the voluminous bi’iefs upon the subject, we suggest that both parties have read and cited to some extent the same authorities and it may be suggested that the instructions, under which the so-called joint enterprise or common purpose,might be determined are taken from the announcements in Blashfield on Automobiles. The insistence on the part of appellants is that under the undisputed facts Miss Albritton must be regarded as a guest and that the instructions in regard to common purpose or joint enterprise are, therefore, abstract and should not have been given. We are unwilling to say as a matter of law that the evidence was such as not to justify the submission of this question to the jury. We think it a matter attended with some serious degree of doubt under the facts as established in the case, as to whether Miss Albritton was one engaged in a joint enterprise with Parker on the night of the injury. While it may appear to us that the guest theory is the sounder one, the facts in evidence to determine the particular status of the young lady on that fatal night may be susceptible of different interpretations by reasonable men, and that being true there is a jury question. Certainly, if'we may not say as a matter of law that she was a guest, then it was a question for the jury to- determine whether she was engaged in a joint enterprise or whether she was a guest, so that question should have been, under proper instructions, submitted to the jury for determination. Our conclusion in this regard makes inevitable an adverse criticism of instructions Nos. 12 and 16, given by the court at the request of the defendant. Instruction No. 12 as given does assume that Retha Belle Albritton and H. F. Parker were engaged in a joint enterprise. The fact assumed is not undisputed. It tells the jury in effect that the burden is upon the plaintiffs to show, by a preponderance of the evidence, that their injuries and the death of Retha 'Belle Albritton were accomplished solely by some act of negligence of the defendant, its agents or employees. Surely, if Retha Belle Albritton were a guest in that car at the time of the injuries, and was without contributory negligence, her administrator would be permitted to recover although her injuries were caused by the concurring negligence of Parker and of the employees or agents of the appellee. It is true her administrator was not suing Parker, and for the very good reason perhaps that he ivas considered protected by the so-called guest act, but notwithstanding the fact that he may have been so protected, the doctrine of concurring negligence, that is to say, the negligence of Ferguson & Son, combined with the negligence of Parker might have been such as to have caused her injuries and consequent death, and, under the law prior to the enactment of the guest statute, her administrator would have been permitted to have sued either, and, no doubt, now he might sue the appellee under a proper allegation of facts presenting the issue of concurring negligence. It is not inconceivable that the manner in which the crippled truck was being towed, combined with high speed, or other neg-u.o-Anee on the part of Parker, might have combined or concurred to bring about the young lady’s injuries and death. So instruction No. 12 is not only erroneous in that it denies a right to recover on account of concurring negligence, but it is also erroneous in that it assumes, as a matter of fact, that Parker and Miss Albritton were engaged in the so-called joint enterprise.
Instruction No. 16 as given by the court at defendant’s request has the same inherent vice or defect, in that it assumes the same matter of fact and the instruction is based thereon. So it must be determined that both these instruction's are erroneous.
We think it hardly necessary to cite a numerous lot of authorities illustrative of the doctrine of concurring negligence as these matters must be known to counsel as well as to the trial judge, but it seems that the importance of them did not occur at the time of the trial. Our attention has been called to the following cases: Pine Bluff Company v. Whitelaw, 147 Ark. 152, 227 S. W. 13; Bona v. S. R. Thomas Auto Co., 337 Ark. 217, 208 S. W. 306; Miller v. Fort Smith Light & Traction Co., 136 Ark. 272, 206 S. W. 329; Carter v. Brown, 136 Ark. 23, 206 S. W. 71; Ward v. Ft. Smith Light & Traction Co., 123 Ark. 548, 185 S. W. 1085. There are many other cases of similar import, but these serve to illustrate the point as effectively as if supported by a dozen others.
Attention is called also to the fact that instructions Nos. 23 and 18, as given at the request of defendant, have this samé defect. It is unnecessary, however, to go to a more minute analysis of these matters, as the court will, no doubt, find it proper, upon a new trial and a reconsideration of these matters, to correct errors that are now so apparent.
We call, attention next to an instruction given by the court of its own motion, No. 19, and in that instruction it is evident that the court did not intend to have foreclosed or decided the question of whether the parties were engaged in a joint enterprise, as distinguished from the relation of host and guest, as the court submits to the jury a proposition to be determined as they might find from the facts, Avhether Retha Belle Albritton was engaged in a joint enterprise with Parker, or if she were,' on the other hand, his guest. But the court was unfortunate in the method of expression employed and the announcements of the law, for these tell the jury that if the injuries and death complained of were the result of the negligence of the Ferguson Company, or its servants, in the manner in which they were towing the truck, and that such negligence was the sole and proximate cause of the collision and the wreck of Parker’s car, to-find for plaintiff Albritton, unless it he determined that she was engaged in a joint enterprise with Parker. This instruction either assumes the negligence of Parker (and on that account that the joint enterprise did constitute a defense) but it is so stated that, notwithstanding the jury may determine as a matter of fact that Parker and Miss Albritton were neither negligent, yet if the jury believed from the evidence that they were engaged in a joint enterprise, this fact, that they were so engaged,, was a complete defense. It takes no argument to convince anybody that such cannot be the law.
As we have proceeded in our analysis of this case and instructions given by the court, we have reached the conclusion that the basis for most of the errors complained of arises from the so-called matter of joint enterprise,, which appears to be one of the conditions almost impossible to define or describe as distinguished from the relation of host and guest under ordinary conditions.
The court’s instruction No. 18, given at the instance of the court, is, perhaps, correct as far as it goes. While we have approved in some of our cases the announcement in Vol. 4, Chapter 65, p. 171, § 2372, of Blashfield on Automobiles, we have considered-that matter in the case of Lockhart v. Ross, 191 Ark. 743, 87 S. W. 2d 73, and announced our conclusions, a reference to which makes it unnecessary to set forth or repeat our holding.
So it must appear that this question, so frequently referred to as “common purpose,” or “joint enterprise,” or “joint adventure,” should be defined according to the definitions that we have heretofore given. If upon a new trial the court may not determine, as a matter' of law, from undisputed evidence whether the relation between the parties, the driver of the automobile and Miss Al-britton, was such as to he classed as a joint enterprise, or whether they were merely host and guest, and it he necessary to a proper conclusion, on account of disputed evidence, or evidence of such character that reasonable men might differ as to its effect and value, the court will in such event submit to the jury the proposition and give instructions to determine the relative rights of the parties as their relations may have been determined arising out of this question as to joint enterprise, or host and guest.
We cannot think it profitable to seek out each instruction for a critical analysis and determination to aid the court upon a new trial. In fact we are convinced it is wholly unnecessary to do so and would unduly extend this opinion.
The appellants argue that instructions given by the court upon the matter of intoxication are abstract and that there is no evidence to justify the giving of such instructions. We agree with this theory of the appellants, at least, to the extent that we think it apparent under the state of the record, as presented here that there is nothing from which the jury might have inferred Miss Albritton was intoxicated, or, at least, under the influence of liquor to the extent that such condition had anything to do with the driving or wrecking of the car, inasmuch as Parker was the driver and she was merely seated by him in the car at the time of the accident.
It is not shown that Miss Albritton did very much drinking, but even if she had been drinking there is no development of the case.that tends in the least to show that this might have affected the driving of the car, nor do we think that such drinking that she may'have done at the time shows or establishés a condition as relates to her, similar to that in the Chitwood Case. Sparks v. Chitwood Motor Co., 192 Ark. 743, 94 S. W. 2d 359.
The foregoing statements are directed almost exclusively to the case of R. E. Albritton, administrator, v. C. M. Ferguson & Son.
It is necessary now to discuss the alleged errors in the case' of H. F. Parker, appellant, v. G. M. Ferguson & Son, appellee. It is urged most seriously in this phase of the case that all instructions given by the court in regard to the drinking were abstract and that it was error on that account to give them. We are not in accord with that contention. It is also argued that it was error to permit Hooker to testify as to statements made to him by Park er, as Parker explained that he was intending to take the girls home as quickly as he could.
The only other substantial objections made are as to the dying declarations of Miss Albritton, the alleged privileged communications, and instruction No. 19, given at the request of the defendant. These matters will be disposed of and our conclusions stated in the shortest order possible.
Parker was the driver of the car and had the responsibility for its control and operation. According to the testimony of the appellants, at least, whatever drinking he did might be regarded very differently by a jury trying this case from what counsel for appellants argue as a conclusion from evidence, as a basis for a rejection of the instructions in regard thereto. The record is not free from evidence that Parker was not wholly unaffected by the liquor he had drunk. The remark that he made to witness Hooker and his declaration to the effect that he was going to get rid of the young ladies as soon as he could might well have been the language of a gentleman affected with drink, and, by way of parenthesis, we might say that as to Parker this evidence of Hooker was admissible, but it should have been received under proper admonition of the court limiting and applying this testimony to Parker. At the time Parker made this remark, on the same occasion when he went to the car where Hooker was found, he picked up that gentleman’s glass of buttermilk, drank it and dropped a nickel in the plate to pay for it. There is no explanation for that conduct by him or the other witnesses, if, in fact, under all the circumstances, it needs any. This is said in consideration that there is evidence that the young ladies did not do much drinking. One of the young men did not drink any. The drinking done by the young ladies was of soft drinks and beer for the most part. A bottle of gin, 4/5 of a quart, was disposed of by the party and there is some evidence that another bottle of gin was also drunk by them. Most men know that some people can drink what others consider large quantities without being outwardly affected thereby.
Tlie foregoing statement testified to by Hooker in giving Parker’s explanation of the reason be was speeding bis guests borne, if they were guests, in fact, was competent against Parker as indicating not only bis condition, but the rapidity with which he was discharging his social obligations. Parker himself says that be was driving at a moderate rate of speed, perhaps thirty-five or forty miles an hour. He did not see the truck that was being towed. He says that he was driving straight ahead when the truck must have swerved over and struck the car he was driving. If that statement be true, althought it is seriously doubted, we cannot find any reasonable excuse for his not having seen the truck that was towed by the one that he says he did see. There were four in a seal. Parker is a large man, weighing approximately 200 pounds. If he was sitting straight in the car seat, he occupied a considerable portion of that front seat. If he was crowded into the corner, as he must have been, he was not so turned that he could observe objects immediately to his left without turning his head away from the usual or normal position.
These are all matters which the jury had 'a right to consider and which they no doubt diet consider, together with other facts that are in no sense in dispute. Young Jimmie Harris Avas a member of this party. He Avas Ihe only one Avho did not drink. He Avas acquainted Avith the road over which they Avero driving when the Avreck occurred and testified he kueAv ihe difference betweeu fast and sIoav driving. At the time of the accident they were going- approximately seAmnty-five miles per horn. The car swerved Avhen it Avent around a curve near Wright’s filling station; that he began to fear for his ■ safety. Someone, he did not remember Avho it Avas, asked Parker to slow down. They saw vehicle lights ahead, the ones upon the truck. They passed the first at the same speed at Avhich the car had been traveling. Just before hitting the second truck the car seemed to SAverve off the highway onto the shoulder and the driver evidently turned back to the left and that Avas when the collision occurred. It was only a glancing lick and the real trouble came when the car hit the culvert and Avent into a ditch. This witness testified as to many other matters, hut we have stated the above because it is in conformity, we think, with the effect of the testimony of another witness, Hillary Rudder. Rudder was city engineer of the city of Pine Bluff. He went there to the scene of the accident, made a survey of the situation where the wreck occurred, drew a plat, and made measurements. He testified that the road was eighteen feet wide. On each side was a ditch beyond the shoulder of the road. He found the skid marks upon the highway. He identified by a line indicating where the car left the road, as shown by the impression the wheels made in the grass and weeds along the highway. The line marked by the travel of the car was a straight line, approximately 499 feet long.
Mr. J. T. Stone, a man who lived near that part of the highway where the accident took place, testified that he was in bed when he heard the collision; that he got up and dressed and went out upon the highway, and that he saw two trucks in front of his house. About 200 yards or better down the road, in a ditch, was a car, and he saw the wheels turning in the air. He called an ambulance. The next morning he traced the tracks of the car that had been in the wreck and saw the marks of the tires all the way down to the place where it had hit and went into the ditch. He identified photographs. There were some skid marks at the place where the accident took place. When he had offered his assistance and was helping people get out of the car, he smelled alcohol on the breath of Parker and McCombs.
The instruction that is seriously objected to by counsel for Parker is instruction 19, given on behalf of the defendant, and that part to which the objection is particularly directed is that the court told the jury “Tn order, therefore, for you to return a verdict for the plaintiffs in these cases it will be necessary for you to find from the evidence not only that the driver of the defendant’s truck wás negligent, but also that the plaintiff H. F. (Red) Parker and the deceased, Retha Belle Albritton, were not negligent, or if they were negligent to the slightest degree, that such negligence did not contribute to cause his or her injury.”
The objection urged is that this instruction put upon the plaintiff, Parker, the burden of proving there was no contributory negligence, the burden of proving which, of course, rested upon the defendant. We do not think this instruction is susceptible of that interpretation and this is particularly true in the light of other instructions given upon the same point and not in conflict therewith. One of these is No. 6, given by the court upon its own motion. The court, in explaining the issues to the jury in the case of Parker v. Ferguson, said:
“The main issues for you to determine are: Whether or not the injuries of Parker were caused solely by the negligence of the agents and servants of Ferguson in the operation of the trucks and trailer, or whether or not the injuries of Parker were caused solely by the negligence of Parker in the manner in which he was driving his automobile at the time, or whether or not the negligence of Parker, if any, combined or concurred with the negligence, if any, of the servants of Ferguson to cause or contribute to Parker’s injuries.” It appears that the issues were clearly and directly presented to the jury and that the jury must have understood these issues as defined, particularly as to the rights of Parker.
We do not think there was prejudicial error in this submission of Parker’s case. If he was guilty of negligence that contributed to or caused his injury, he did not have a right to a recovery. The jury’s verdict, under a submission of these facts above stated, found against him and that verdict is conclusive upon appeal, provided there is no error that shows an improper submission.
In addition to these matters as determined by the jury, Ave think it may be said, Avithout an invasion of that field Avhich is perfectly within the realm of the jury to find and determine facts, that the physical facts in this case demonstrate beyond any doubt, that Parker, the driver of the car was negligent in its operation at the time of the collision and accident.
The proof of the engineer is undisputed that the car ran on for a distance of approximately 500 feet after the collision. It then hit the culvert with so much force as to wreck the car Avhich had to that time only suffered the blow-out of a casing. It is not disputed that after Mr. Stone heard the crash, he dressed and went 200 yards and found the car with the wheels in the air still spinning. If the car were driven at that moderate rate of speed, which Parker testified to in his evidence, then he was negligent in not stopping it before this crash occurred. The car had been driven, according to his testimony only five or six thousand -miles.- It was in good condition. Traveling at thirty-five or forty miles it could have -been stopped at not more than half the distance it ran after the collision with the truck. There was a wide margin of safety if there had not been unusual speed. The engineer’s evidence corroborates and fortifies what was said by Jimmie Harris who fixed the rate of speed at approximately seventy-five miles an hour.
These physical facts and conditions presented, without substantial dispute or controversy, in regard to their accuracy, conclusively determined that Parker was not entitled to recover.
The verdict should have been directed by the court against Parker. That being true, any instruction not going that far was too favorable and not prejudicial.
The foregoing disposes of the most important of the alleged errors. The only other matters are in regard to the dying declarations and the suggested privileged communications. '
It is .argued that the court committed error in the matter of permitting the nurse who waited on Miss Al-britton to testify in regard to statements she. had made as a dying declaration; that this violated two'rules of evidence arising out of recent legislation, Pope’s Dig., § 5201, one that it was not proper to permit the nurse to detail the dying declarations of Miss Albritton. Without considering the competency of her statement as made, let us suggest that the dying declarations become competent by reason of a declaration of the law that formerly existed as re-enacted by the Legislature in 1935. No doubt it was the. purpose of this legislation to open a way to get in proof otherwise held inadmissible. Now, it would seem sufficient to say that since the Legislature has made these declarations admissible in civil cases, we have no hesitancy in saying .that , either party nnder proper allegations may use such dying declarations, for purposes, set forth in the act after proper foundation is laid. We suggest there may be a difference, however, in attempting to prove facts by such declarations and in the .presentations of. mere conclusions.
The other error suggested is that the court improperly permitted the nurse to testify, the objection being that since she was the nurse communications made to her and in her presence were privileged. It is argued that comparatively recent legislation, see § 5159, Pope’s Dig., to the effect that if a patient shall offer Ms physician as a witness the other party may in like manner call other physicians, regarding the privilege as having been waived. The theory of appellants is that although they put on a physician, appellee could not offer any one who was not a physician, or, if they had put on a nurse,;the ap--pellants could not have offered a physician. We think that interpretation of the statute is too technical to serve the purpose no doubt intended by the Legislature. Without an attempt or effort at construction we merely declare our conclusion.
It had heretofore been the law that certain communications to or with doctors or nurses are privileged. Occasions are not infrequent in which perhaps two or three physicians, or maybe more, may have examined a patient and have determined the extent and effect of his injuries. Yet they would not be permitted to testify and the so-called injured party might take or choose such physician or party as he deemed most favorable to him in the statement of the nature, extent and effect of his injuries,, and at the same time each of the other attending physicians be equally competent to declare .the result of their investigations and findings. So it was deemed to the best interest of the public to leave the question of privileged communications entirely within the control of the injured party; that he need not call any physician to testify as to what his findings were, in his professional relationship with him, but should he deem it necessary or proper to do so, when he shall have exercised that privilege and called his physician to testify in that re spect, bis conduct would operate as a waiver of the privilege, and opposing side might call others who had occupied the exact and same relation with the injured party, and it would make no difference in that view of the case, whether the privileged communication was one in the mind or recollection of a doctor or nurse. If the litigant waived the privilege, he waived it as to all nurses or physicians. Such must have been the intention of the Legislature and we so declare it.
It must not be understood upon a trial anew, in the Albritton Case, that we have approved instruction No. 19, as requested by defendant. While we do not think the language is susceptible of the interpretation put upon it by counsel for appellants, there is no doubt but that it might be improved and the suggested and supposed error be entirely eliminated.
It need not be argued that contributory negligence is an affirmative defense, the proof of which rests upon the defendant unless it appears otherwise.
For the errors indicated the judgment in the case of Albritton v. Ferguson & Son is reversed and remanded for a new trial.
The judgment in the case of Parker v. Ferguson & Son is affirmed. | [
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Hart, C. J.
Bill Malian prosecutes this appeal to reverse a judgment of conviction against him for the crime of manufacturing alcoholic liquors, in violation of § 6160 of Crawford & Moses’ Digest.
The first assignment of error is that the circuit court erred in communicating with the jury after it had retired to consider the verdict. After the jury had deliberated some thirty minutes, the trial court told the sheriff to go to the jury room and tell the .jury that the court was waiting on them to bring in a verdict. The sheriff then went to the jury room,. and carried the message of the court to the jury, and in about fifteen minutes the jury returned a verdict of guilty.
It is true, as contended by counsel for appellant, that it is reversible error for the court to communicate with the jury, in the absence of the defendant, any directions in regard to the verdict. Kindrix v. State, 138 Ark. 594, 212 S. W. 84. It is also true that this court is committed to the rule that it is reversible error for the circuit court to coerce or to entreat the jury to render a verdict. Jackson v. State, 94 Ark. 169, 126 S. W. 843, and St. L. I. M. & Sou. Ry. Co. v. Carter, 111 Ark. 272, 164 S. W. 715. In the present case,’ however, it cannot be sai'd that the trial judge, by threat or entreaty, attempted to influence the jury to reach a verdict. There was only one issue to be tried by the jury, and that was whether or not appellant had been engaged in manufacturing- alcoholic liquors. No witnesses were introduced by the appellant, and the only question for the jury to determine was whether or not the testimony of the witnesses for the -State warranted a verdict of guilty. The assignment of error in this respect did not warrant any inference that the court was either threatening or entreating the jury to 'bring in a verdict in the case. The question propounded to the jury by the court, through the sheriff, was nothing more than to ask about the probability of reaching a verdict within a reasonable time. Hence we hold this assignment of error is not well taken.
The first witness for the State was the sheriff of the county. According to his testimony, he went to the home of appellant, in Crawford County, Arkansas, and, just as they approached the house, some one poured out a tub of something on the porch. He examined the place where the liquid was running off the porch, and found that it was home brew. In a closet in the kitchen the sheriff found six or eight bottles of home brew. He smelled and tasted the liquid that was running off of the porch, and said that it was home brew. He did not drink enough of the liquor to tell if it was intoxicating, but said that, in his judgment, it was. He had been a commissioned officer six years, and had participated in numerous liquor raids. He said that the home brew in the bottles was intoxicating. Appellant admitted to the sheriff that the home brew which had been poured out and that in the bottles was made by him.
The chief deputy sheriff of the county was also a witness for the State. According to his testimony, the home brew which was in the bottles was intoxicating. He also testified that the liquor which was running off the porch was home brew, and that, from its taste and smell, it was intoxicating.
Another witness for the State who was present testified that the home brew which had been poured out, and which was running off the porch, smelled, tasted and looked like home brew which on other occasions he had analyzed and found to contain alcoholic liquor.
As above stated, no -witnesses were introduced by appellant, and tbe testimony of the witnesses for the State, if believed by the jury, was sufficient to warrant it in returning a verdict of guilty. Bums v. State, ante, p. 1. In the present case the court instructed the jury in accordance with the principles of law decided in the Burns case and in other recent decisions of this court.
Therefore the judgment will be affirmed. | [
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Mehaffy, J.
On April 11, 1930, the appellant issued its policy in the amount of $1,000 to the appellee. It is provided in said policy that, should the insured become totally and permanently disabled, the appellant would waive the payment of further premiums on said policy, and pay an income of $10 per month during the continuance of such disability.
Appellee is 23 years of age, a; baker by trade, and knows no other business. He filed suit, alleging that, while said policy was in full force and effect, he became permanently and totally disabled. He became afflicted with infectious arthritis of the left hip joint; his disability was total and permanent.
Due proof was made, and during the period of March 15, 1931, to January 15, 1932, appellant waived premiums and paid appellee $10 per month. It was alleged that on January 15, 1932, the appellant breached its contract of insurance, and discontinued the payment of disability benefits, and, since that time, has continued to breach said contract by refusing to pay the benefits and waives the premiums.
Appellee alleged that he had an expectancy of 40.17 years. He alleged that he was entitled to receive $10 per month from January 15, 1932, for 40.17 years, and at his death his beneficiaries are entitled to receive $1,000. He asked judgment for the present worth of the disability benefits, and present worth of the $1,000, the amount sued for being $2,999.95.
The appellant answered, denying the material allegations in the complaint. The appellant filed amendment to its answer, alleging that it received information to the effect that appellee was employed part of the time, and that he was examined by a physician, and was not totally and permanently disabled, and so notified appellee; that it subsequently reconsidered appellee’s claim, and admitted that he was disabled within the' terms of the contract, and tendered him all of the monthly installments to which he was entitled. Appellant renewed its tender, and offered to pay all installments due, and in all respects comply with the contract.
We deem it unnecessary to set out the evidence. It is sufficient to say that there was ample evidence to sustain the claim of total disability, and the appellant admitted and offered to pay. There was a jury trial and a verdict directed by the court in the amount of $1,982.72 with interest at 6 per cent, per annum. Motion for new trial was filed and overruled, and the case is here on appeal.
Appellant first contends that there is no evidence of a repudiation or breach of the contract. Numerous letters from the appellant to appellee were introduced,' all of them tending to show'- that they did not intend to re pudiate the contract, but it is admitted that they declined to pay disability benefits from January 15, 1932, claiming that appellee was not totally disabled, and that appellant was not under any obligation to pay the disability benefits. It also advised him that he must pay his premiums.
The evidence tended to show that the appellant had made examinations, determined that he was totally disabled, and paid disability benefits for a number of months, and then declined to pay further, at a time when appellee’s disability was the same that it was when they first began to pay disability benefits.
It is the contention of the appellee that appellant was not acting in good faith, and that its conduct was a repudiation and breach of its contract; that it knew appellee ’s condition and refused to comply with the terms of the contract.
The court directed a verdict, thereby holding as a matter of law that the appellant had breached its contract. This was error. The court should have submitted to the jury the question whether appellant had breached its contract.
The court also refused to permit the appellant to introduce evidence to show that appellee’s affliction was such as to prevent him from taking a normal amount of exercise and to make him more susceptible to diseases of all kinds, and refused to permit appellant to show the present values of amounts in controversy at periods of 5, 10, 15, 20, '25 and 30 years. This evidence was offered on the theory that the jury might find that the appellee, who claimed to be totally and permanently disabled, would not live out the full expectancy of a normal, healthy person.
We think the court erred in not permitting appellant to make this proof. The mortality tables were properly admitted in evidence, but those tables are for the purpose of showing the expectancy of a person in health, and, in order to determine the expectancy of a person who is not in good health, it is proper to introduce the mortality tables and all other evidence tending to show his expectancy.
We said in a recent case: “Appellant contends that the court erred in admitting in evidence the Carlyle Mortality Tables over its objection and exception. It is urged that there was no issue of the expectancy of Alice Jackson’s life in this case, and that the table of expectancy of life was therefore inadmissible. * * *
“This court, in the case of Arkansas Midland Rd. Co. v. Griffith, 63 Ark. 491, 39 S. W. 550, said that ‘evidence of disease or of ill health or of hazardous employment may impair or destroy probative effect of tables of expectancy of life, but it does not make them inadmissible. ’
“No error was committed in admitting the mortality tables, but reversible error was committed in accepting them by the court as conclusive. At the time of the breach of the contract, Alice Jackson was sick, and her condition would have entered into her expectancy of life. At the time of the breach of the contract, when her right of action accrued, her expectancy of life was necessarily in dispute and to be ascertained from all the evidence and circumstances surrounding her condition of health. This issue of fact being in dispute, it Avas a question for the jury and not the court to determine.” Nat. Life & Acc. Ins. Co. v. Sims, 187 Ark. 969, 63 S. W. (2d) 524.
.Insurance policies like the one herein involved have been construed by this court many times, and we do not deem it necessary to discuss these questions or review the authorities. Some of the recent cases are as follows: Nat. Life & Acc. Ins. Co. v. Whitfield, 186 Ark. 198, 53 S. W. (2d) 10; Mo. State Life Ins. Co. v. Johnson, 186 Ark. 519, 54 S. W. (2d) 707; Mo. State Life Ins. Co. v. Holt, 186 Ark. 672, 55 S. W. (2d) 788; Mass. Prot. Ass’n v. Oden, 186 Ark. 844, 56 S. W. (2d) 425; Mutual Life Ins. Co. v. Marsh, 186 Ark. 860, 56 S. W. (2d) 433; Guardian Life Ins. Co. v. Johnson, 186 Ark. 1019, 57 S. W. (2d) 555; Mo. State Life Ins. Co. v. Snow, 185 Ark. 335, 47 S. W. (2d) 600; Sovereign Camp, W. O. W., v. Meek, 185 Ark. 419, 47 S. W. (2d) 567; Ætna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S. W. (2d) 310.
If there Avas a breach of the contract by appellant, appellee is entitled to recover. If there was no breach of the contract, then appellee is entitled to recover the disability benefits, and is relieved from the payment of premiums.
For the errors indicated, the judgment is reversed and the cause remanded for new trial, with permission to introduce evidence to show the expectancy of life of appellee, and with directions to submit the question to the jury as to whether there was a breach of contract.
Justices Smith and Butler concur in the reversal of the judgment, but they believe that the evidence shows that there was no breach or repudiation of the contract, and the court should have so declared. | [
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Mehaeey, J.
Complaint was filed in the Mississippi circuit court by the appellee against the appellants for damages for injury to A. 0. Houston, incompetent. It was alleged that Houston was knocked to the ground, head, face, body and limbs broken, bruised and lacerated and skull fractured, requiring a. serious operation; that large sums of money had been expended for medical and hospital attention, nurses,,-etc.; that he suffered great pain and anguish, and that he is totally incapacitated. It was alleged that the persons operating the train failed to keep a proper lookout for persons and property on,or near the track; failed to blow the whistle or ring the hell or give other warning of the approach of the train, and that the train was operated at an excessive rate of speed; that there was failure to exercise ordinary care to discover the peril of Houston, and failure to exercise ordinary care to avoid injuring him after his peril was, or should have been, discovered.
Appellants answered denying all the material allegations' in the complaint and pleading contributory negligence of Houston.
There .was a trial, verdict and judgment for the ap-pellee in the sum of $3,000. The case is here on appeal.
Parvin McDearman testified that he was standing about 300 feet from the crossing, and that the train passed about one o ’clock at night; when it left the depot it whistled the highball whistle, a couple of shorts; it did not whistle any more until it was stopping; it had crossed the crossing; never noticed the bell ringing; Houston had come into the Sternberg gin where witness was working wanting work, but witness would not let him work because he had an infection in one hand; it was around 11:30 when Houston came to the gin; Houston left with a boy, Joe Waldrup, about 12 o’clock going-south ; witness then went over to. a restaurant and saw Houston there eating a hamburger and drinking a Coca-Cola ; saw him after the train passed on the side of the railroad g-asping for breath and unconscious; witness saw something coming down the track that looked like a shadow, and it looked like something grabbed him oil the side of the train, and the train sucked him into it; he was close to it; he knew what he saw was a man by the train stopping-; the train stopped about 200 or 220 feet with the rear end of the train that distance from the crossing, and there is where he found Houston; there were flood lights bn the gin,' scales and office; - several trucks around there bringing cotton to be ginned; the crossing has been there e.ver since witness can remember and been used as a public crossing; Houston was found on the west side of the track; some of the train crew went back to where Houston was and the train stayed there about 20 minutes; Houston’s head was at the end of the tie lying on his right shoulder; he was awfully close to the rail headed north when witness saw him; when witness first saw him it was something like 40 or 50 feet down the track; when it was struck it was even with the crossing signboard, four or five feet south of the crossing [ the depot was about a quarter of a mile from where witness was standing; train stopped at the station ten or fifteen minutes.
Joe Waldrup testified that he saw Houston between 12 and 12:30 at the gin,; he and Houston separated, he went one way and Houston the other.
Mrs. McDearman testified about Houston coming to the restaurant between 12 and 12:30.
B. L. Hill testified that he saw Houston and when Houston left he went towards the railroad; that he was looking at him when the train hit him; there was nothing else there to hit him; when Houston left witness he went straight out to the railroad; he heard a couple of short whistles after the train crossed the. crossing; if it whistled before it hit Houston witness did not hear it; the bell was not ringing; the track is straight a good piece south of the depot to the north of the gin; no obstructions to keep those in the engine cab from seeing down the track; does not know whether he got hit at or below the. crossing. ...
McDearman also testified that there was nothing to keep the engine men from seeing Houston if they had been keeping a lookout; they did not slow up or show any sign of stopping before they hit him; Houston was not moved from where he was lying until the ambulance came.
B. L'. Hill testified, also, that he supposed he was struck by the engine, but did not know; it was dashed in there in a moment and struck him; does not know whether Houston walked right into the train; he was right at the crossing or south of it.
The engineer and fireman testified that they were keeping a constant lookout and saw no one on the track; but that the fireman informed the engineer that a man was lying by the side of the track and the engineer immediately applied the brakes and stopped; stopped the train as quickly as he could and walked back and saw the man lying there; engineer inspected his engine and the side of the train and found nothing to indicate ...that the man had been struck; Houston was 15 or 20 feet south of the crossing; the headlight was sufficient for’ them, to see 1,000 or 1,200 feet ahead. The conductor testified that he could not hear the bell or whistle because ears are air-condition and air-tight; when the train stopped, conductor got off and met the engineer, who told him they had run over somebody or something; made no inspection of the train.
The car inspector at Hayti, Missouri, testified that he made an inspection of the train; looked the train over, inspected the cab and found no blood or hair on any part of it or anything to indicate that a man had been struck.
J. I. Stovall testified that he found Houston with a wound in the back of his head, lying on the west side of the track about eight steps south of .Kentucky street crossing.
At the close of the evidence the appellants asked for an instructed verdict, which the court refused to give.
Appellants first contend that there is no dispute that the lookout required by the statute was kept. No witness testified, of course, that a lookout was not kept, but the evidence shows that Houston walked onto the right-of-way; that persons on the engine could see from 1,000 to 1,200 feet down the track, and that Houston was walking there when the train came, and after the train passed he was found lying about 18 inches from the rail, injured as described by the witnesses.- There was nothing else that could have struck him. In addition to this, Hill testified that he saw the train strike him.
If the jury believed the witnesses for appellees, they were bound to reach the conclusion that Houston walked onto the right-of-way and track, and that if the' engineer and fireman had been keeping a lookout, they could have seen him.
Appellee’s witnesses testify to facts contradicting the evidence of the engineer and fireman. The jury had a right to believe these witnesses'. It was the province of the jury to pass--on the credibility of the witnesses and the weight to be given their testimony. The engineer and fireman admit that they could see ahead from 1,000 to 1,200 feet; they had a headlig’lit in good condition, and it is common knowledge that one can see, not only on the track immediately ahead of the train, but for some distance on the right-of-way on each side of the track.
Appellants, however, say that prejudice to the defendants arises from the different operation of the two principles of law. If killed under certain circumstances, contributory negligence would not be a defense; under other circumstances, it would be a defense, and it would be the duty of the jury to reduce the amount of damages. But no prejudice could arise because of this. If the jury believed that the appellants discovered Houston’s peril, or by the exercise of ordinary care could have discovered it, contributory negligence would be no defense. But if the jury believed that Houston was injured as a result of .appellants failing to give the statutory signals, and find that Houston was also guilty of negligence, this negligence of his would not bar his recovery, but it would be the duty of the jury to diminish the damages in proportion to such contributory negligence. Certainly there’ is no conflict and no necessary confusion about these two principles. The evidence justified the submission of each question to the jury. The suit was brought for $3,000, and the jury returned a verdict for that' amount. Houston’s injuries were sufficient in extent to sustain a much larger sum.
No abstract instructions were given by the court. Appellant calls attention to Kimbrough v. Johnson, 182 Ark. 522, 32 S. W. 2d 154. The court in discussing the instruction in that case said: “We do not think under appellee’s own testimony that this issue should have been submitted to the jury.”
-' In this connection appellants, also, call attention to the case of M. P. Rd. Co. v. Kirby, 152 Ark. 90, 237 S. W. 687. It is true that the court reversed the judgment in that case. There is, however, nothing in that case that sustains the argument of appellants in this case.
It is argued, however, by appellants that there are three theories; two opposing theories by plaintiff’s witnesses. We do not agree with appellants in this contention. It is true that there, was a conflict in the testimony of the witnesses as to which direction Houston was traveling, but it was the duty of the jury to consider all the evidence and determine from that what caused the injury. It is argued that the cause of the injury is unknown. This argument overlooks the positive evidence of .Hill, who said he saw the train strike him, and the fact that he was found immediately after the train passed Avith his skull crushed, and there is no'speculation about these facts.
Appellants requested the court to instruct the jury in effect that if Houston left the gin premises and walked in the direction of the crossing at the gin, turned south on the track and Avas injured by a northbound train with the headlight brightly burning, Houston was guilty of negligence of an equal degree Avith the negligence of the railroad company. It was not the province of the court to pass on the evidence and determine the degree of negligence of each, but it was the province of the jury.
The next instruction that the court refused was to the effect that if Houston Avas injured south of the crossing, the railroad company owed him no duty except not to Avillfully and Avantonly injured him after discovering his peril. This instruction ignores the law that it is their duty to keep a lookout in order to discover, persons and property on the track. . ¡ .
The objection to instruction No. 1’given by the court is that it fails to take into account the testimony of the witnesses that Houston was a trespasser. The instruction, in fact, tells the jury that if he was injured at a public crossing at a time when he himself was in the exercise of due care, he would have a right to recover. Of course, if he was at a public crossing he would not be a trespasser, and there was no error in giving this instruction.
There are some other objections made by appellants to instructions given and refused, but after a careful examination of all the instructions we have reached the conclusion that there was no error committed by the court in giving or refusing to give instructions.
Appellants complain because they say that instructions 2, 3, 6 and 7 are abstract. Instructions 3 and 7 objected to were not mentioned in appellants’ motion for a new trial.
Appellants call attention to the case of St. L.-S. F. Ry. Co. v. Pace, 193 Ark. 484, 101 S. W. 2d 447. There was no evidence in that, case that he was hit by the train.
Appellants call attention to a number, of cases which we do not discuss separately, but attention has been called to no case where there was substantial evidence that the train struck the injured party. There is that evidence in this case. Hill testified positively to seeing the train strike Houston. ..
“It may be said to be the general rule that where an unimpeached witness testifies 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.” Castile v. Yantis-Harper Tire Co., 183 Ark. 475, 36 S. W. 2d 406; Skillern v. Baker, 82 Ark. 86, 100 S. W. 764, 118 Am. St. Rep. 52, 12 Ann. Cas. 243.
In the instant case there is not only no circumstance from which an inference against the testimony of Hill can be drawn, but there is the evidence of several witnesses that he walked to the railroad from the gin, and the circumstance that he was found with his skull crushed, and there is no other .way shown by which this could have been done, except, being struck by the train.
If the jury had-believed appellants’ witnesses, they would necessarily have found for appellants, becausecthe engineer and fireman testified that they were keeping a constant lookout, and had a good headlight and saw no one ahead on or near the track. However, this evidence, as we have said, is contradicted by not only the evidence of Hill and other witnesses, but by all the circumstances in the case, and it is the province of the jury to pass on the credibility of .witnesses and weight of their testimony, and when they have done this and reached a verdict, this court has no right to set such verdict aside if it is sustained by substantial evidence. It cannot be said that the evidence of appellee’s witnesses is not substantial.
The judgment is affirmed.
Smith, Baker and Donham, JJ., dissent. | [
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Holt, J.
In July, 1937, appellees purchased from appellant a policy of insurance under the terms of which appellees, operating as the Northeast Arkansas Bus Lines, were indemnified against loss by reason of any damage to person or property.
March 19, 1938, W. T. Shelton claimed to have been injured while a passenger on appellees’ bus.
September 10, 1938, Shelton filed suit against ap-pellees in the Lawrence circuit court for damages growing out of his alleged injuries and recovered judgment by default for $1,000. Subsequently appellant effected a compromise settlement and paid Shelton $850.
Thereafter the present suit was filed by appellant against appellees seeking to be reimbursed for the money it had paid to Shelton on his judgment against appellees. On a trial before the court sitting as a jury, there was a judgment in favor of appellees. This appeal followed.
Appellant first contends that although the policy was in effect, all premiums having been paid, appellees were not entitled to protection under it for the reason that they had failed to comply with one of the specific provisions of the insurance policy requiring notice of any claim for injury to be given appellant insurance company within five days from the happening thereof, and that this was a condition precedent to recovery. .The insurance policy contains a provision as follows:
“Reporting Accidents, 'Claims, Suits. (A) Upon the occurrence of an accident or an alleged accident, covered under this policy, the assured shall give immediate written notice thereof with the most complete detailed information obtainable at. the time to the company, at its home office in Richmond, Virginia, or to its nearest branch office or to its duly authorized agent; if a claim is made on account of such an accident or if any suit is brought against the assured to enforce such a claim the assured shall forward to the company immediately every written communication, or information as to any verbal communication, and every process, pleading and paper relating to any claim and/or proceeding. The words ‘Immediate’ or ‘Immediately’ as used herein shall be construed to mean not exceeding five days. 9 9
We agree with appellant that it devolved upon ap-pellees to show compliance with the above provision, since it is a condition precedent to recovery. We think, however, that appellees have done this.
While the record reflects that the alleged injury to Shelton occurred in March, 1938, and notice thereof was Hot received by the insurance company until September 15, 1938, appellant would not he relieved of liability on the policy if appellees notified appellant of Shelton’s claim of injury within five days of the date on which appellees first learned of any claim of Shelton for alleged injury.
On this point Herschel Batey, one of the operators of the appellee bus line, testified that only the one claim of Shelton had been presented against appellee, and this claim was handled by Richardson & Richardson, Shelton’s attorneys; that the first notice to appellees, of Shelton’s claim, was received by appellees in the form of a letter from these attorneys on 'September 14, 1938, and that on the same day this letter was received he (Batey) wrote appellant at its office in Memphis, Tennessee, inclosing the letter from Shelton’s attorneys, and within a day or two received the following reply:
“September 15, 1938, . . . Tour letter of Sep- • tember 14th addressed to the Underwriters Service Agency of Memphis, together with letter of attorney S. L. Richardson, dated September 3rd, have been referred to this office.
“The above mentioned correspondence reports an accident which is alleged to have occurred on March 19, 1938. This correspondence is the first report we have had from you concerning this matter.
“Policy PT-22273 issued to you by the American Fidelity & Casualty Company definitely and expressly states that all accidents or claims are to be reported to the company or its agent immediately, the word ‘immediately’ being construed as meaning not more than five days.
“Therefore, in'view of the fact that this accident was not reported to this office until practically six months after it occurred, we are forced to deny coverage under the above numbered policy and we suggest that you handle this matter in any way that best protects your own interests. Yours very truly, F. O. Lanning, Claims Manager. ’ ’
Batey further testified that thereafter he mailed to appellant company copy of summons in the case filed by Shelton against appellees.
Appellant’s witness, F. O. Lanning, admitted receiving Batey’s letter of September 14 with attorney Eich-ardson’s letter inclosed, and having written the above letter to appellees.
Jason Light gave testimony on behalf of appellees tending to corroborate Batey as to the date appellees received notice of Shelton’s claim through Eichardson & Eichardson, Shelton’s attorneys, Shelton’s letter to ap-pellees was written by S. L. Eichardson of the firm of Eichardson & Eichardson. S. L. Eichardson did not testify in the cause.
Appellant lays much stress upon the fact that Eich-ardson ’s letter on behalf of Shelton to appellees appears to have been written September 3rd. It is our view, however, that the testimony of Batey and Light was amply sufficient to warrant the court in finding that the letter conveying the first notice of Shelton’s claim to ap-pellees was not received by appellees until September 14, and that appellant was duly notified of the claim the following day, which was in apt time.
The general rule is that the insured is not required to give notice to the insurer until the insured, itself, has notice of a claim for damages.
The textwriter in 29 American Jurisprudence, 834, § 1111, says: “It is generally held that provisions requiring the insured to give notice or furnish proofs of loss do not apply until the insured has knowledge of the loss. Thus, notice under a liability policy need not be given until after the insured has knowledge that an accident has occurred.” Under this section is cited the annotations in 76 A. L. R. 81 and 123 A. L. R. 966. In the latter citation is found our own case of Home Indemnity Company v. Banfield Bros. Packing Company, Inc., 188 Ark. 683, 67 S. W. 2d 203, wherein this court follows the general rule. We held in that case (quoting headnote No. 5): “In an action on an automobile indemnity policy, an instruction that failure of insured to .give immediate notice of the accident was not a defense if the insured had no knowledge of the personal injury until suit was brought against it held proper.”.
It is next contended by appellant that even though appellees gave proper notice to appellant, still appellees’ failure to take any action or to defend the Shelton suit against them, and their failure to reply to appellant’s letter of September 15, denying liability, have thereby estopped themselves from denying that appellant was relieved of liability under the insurance contract in question. This contention, we think, without merit.
It seems to us that the letter of appellant to appel-lees, supra, and especially the last paragraph thereof, is couched in such plain, unambiguous, and certain terms that there could be no doubt left in appellees ’ minds that appellant denied all possible liability under the insurance contract, and using appellant’s own words, “We suggest that you handle this matter in any way that best protects your own interests.” In other words, appellant meant to convey to appellees the information that insofar as it was concerned, the matter was closed. This letter required no reply. The law does not impose upon appel-lees the doing of a vain and useless thing.
The effect of this notice was to inform appellant that appellees were looking to it to defend the claim of Shelton, as required under the insurance contract. This appellant refused to do in its letter of the 15th set out above.
No error appearing, the judgment is affirmed. | [
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Butler, J.
The cbancery court of Sevier. County, on the petition of the Southwest Arkansas Utilities Corporation, rendered its decree in favor of the petitioner condemning a right-of-way across the orchard lands of the Patterson Orchard Company thirty feet in width, for use as a right-of-way for its lines used in the transmission and supply of electricity for public use, and adjudging to the Patterson Orchard Company for its damage the sum of $1,000. Prom this decree the Patterson Orchard Company appeals to this court, and to that part of the decree adjudging damages the Southwest Arkansas Utilities Corporation has filed its cross-appeal, and has also' asked this court to determine on its cross-appeal the question as to whether a foreign corporation engaged in the business of generating and transmitting electricity for public use, and which has complied with the laws of this State with reference to foreign corporations doing business herein, is authorized to exercise the right of eminent domain.
There are five questions presented to this court for its determination by the appellant, Patterson Orchard Company, which are as follows: (1) Could the appel-lee, a domestic public utilities corporation, clothed with the power of eminent domain, exercise that power for the benefit of a like foreign corporation which had complied with the general laws of the State prescribing upon what terms a foreign corporation might do business therein? (2) Was the purpose for which a right-of-way was sought to be condemned across the appellant’s orchard one to serve a private use and not a public use, and, if the former, was the decree of the chancery court justified by law? (3) Was the right-of-way sought to be condemned necessary in order to enable the appellant or its lessee to perform their functions and duties to the public? (4) Was the chancery court correct in decreeing to appellee a fee simple title in and to the strip of land across the orchard of appellant? (5) Was the damage awarded to appellant adequate?
On its cross-appeal the appellee contends that the damages awarded were not only adequate,, but excessive, and against the preponderance of the testimony. Ap-pellee also has asked this court to pass upon the question as to whether or not a foreign corporation, having complied with the general laws of the State with reference to a foreign corporation doing business therein and engaged in the business of generating and transmitting electricity' for public use, lias the right to exercise the power of eminent domain and condemn a right-of-way for the purpose of its business.
The appellant, in addition to the questions presented and hereinbefore stated, challenges that part of the decree of the court adjudging’ the costs against it.
The testimony in this case as to the amount of damages sustained by the appellant is conflicting, but there is no dispute as to the other facts in the case, which are substantially as follows: The Southwestern Gas ' & Electric Company, a Delaware corporation, after having complied with the statutes of this State, was engaged, among other things, in the transmission of electricity for public use, and prior to the 17th day of March, 1928, owned and operated a transmission line from DeQueen, by way of Horatio-, to Foreman, in Sevier County, Arkansas, the right-of-way of which paralleled the public highway and was adjacent thereto. This transmission line was a 33,000-volt capacity. At and before the date mentioned above, the said company was engaged in rebuilding, relocating and increasing the capacity of its high power electric transmission line running from Shreveport, Louisiana, to DeQueen, Arkansas, and had proceeded with this work until it reached the orchard of the appellant, located about three miles south of De-Queen, and, having been unable to obtain the riglit-of-wajr further across said orchard, filed its suit in the Sevier Circuit Court by which it sought to condemn said right-of-way for its own use, and, having made the deposit in the sum named by the circuit judge, obtained on said day an order permitting it to enter upon the land of the appellant for the purpose of constructing its transmission line, and, ou the same day that the order was obtained, put a large force of men on the work and proceeded with the construction of said line across the appellant’s land. On the same day, and a short time after the order had been procured and the work begun, the appellant, learning of this, filed its petition for a revoca tion of the order, setting up as grounds therefor the fact that the Southwestern Gas & Electric Company was a foreign corporation, and alleging that it was without authority or right to exercise the right of eminent domain or condemn a right-of-way over the appellant’s land. This petition was presented to the judge at about noon on the same day on which the order was made, namely, March 20, and thereupon the judge issued an order holding in abeyance his former order, and setting March 24 for the hearing of the original petition of the Southwestern Gas & Electric Company. A copy of this last order was duly certified by the clerk and served by the sheriff upon the superintendent of the electric company in charge of the work. At that time the electric light poles had been erected across the entire tract, a distance of three-quarters of a mile, and the wires had been unrolled and lay across the orchard and the branches of some of the peach trees, and, after the order revoking the former order was served, the workmen continued to work for about an hour or a.n hour and a half, attaching the wires to the poles, the reason given for this- apparent disobeyance of the order being that the work done after the notice of the revocation of the former order was that the wires might become tangled or damage the trees, and that they might properly be preserved.
On the 21st of March the appellant, Southwest Arkansas Utilities Corporation, was organized with a capital stock of $25,000, divided into 250 shares of the par value of $100 each. The superintendent of the gas and electric company took 248 shares of this stock and two other employees of said electric company took one share each. The purpose for which this company was organized, as stated in its charter, was to generate and transmit electricity for public use. As soon as, or a short time after, its organization and the issuance of its charter, the 248 shares taken by the superintendent of said company were issued to the gas and electric company in exchange for the transmission line extending from the north bank of Little River over the 'orchard of appellant to the substation of the gas and electric company at DeQueen, and the said line was then leased by the appellee to the gas and electric company. On the 24th day of March, the date set for the hearing of the petition of the Southwestern Gas & Electric Company, the appellee filed its intervention, alleging the purchase from the gas and electric company of all its rights in and to the transmission line constructed by it across the orchard of appellant. On the day of the hearing, after a resolution of the stockholders-of the new company had been passed, by which there was adopted for the appellee corporation the route across appellant’s orchard which had previously been selected by the gas and electric company, it filed in the offic e of the circuit clerk of the -county its complaint, which is the original complaint in the case at -bar, and the original suit and intervention were abandoned. A date was set for the hearing of the complaint and petition filed by the appellee, the 11th day of April, and on that day an order was entered authorizing the appellee to go on the lands of the appellant for the purpose of constructing and maintaining a transmission line, and requiring the appellee to make a deposit of $750 to be used in payment of such damages as might be finally assessed against it, which deposit was accordingly made. The appellant filed its answer, and asked that the cause be transferred to equity, and that it have a permanent injunction against the appellee. Upon a hearing, the chancery court entered a decree, to which reference has been heretofore made.
1. It is urged by the appellant that, under the facts disclosed, the creation of the Southwest Arkansas Utilities Corporation was but a subterfuge for acquiring a right-of-way indirectly for the Southwestern Gas & Electric Company, which could not be done directly because of a constitutional prohibition; that the sole purpose behind the organization of the appellee company was to acquire a right-of-way for the gas and electric com pany, and that therefore it had no right to exercise the’ power of eminent domain for such purpose. It cannot be questioned that one of the reasons, if indeed not the principal oner for the formation of the appellee company was the procurement of a right-of-way for the gas and electric company, but there was also testimony to the effect that said company was organized to serve, and has served, as a developing company for the Southwestern Gas & Electric Company, and that it will own the right-of-way over which the new transmission line shall run until such time as it shall see fit to dispose of this property, and that, while at that time it had no funds available to pay out for development purposes, it expected to get funds from the gas and electric company, or from banking firms, bond issues, or otherwise.
The legal existence of the appellee corporation is not questioned, but it is insisted that the State Constitution prohibits a foreign corporation from exercising the power of eminent domain, and that it cannot take the right as lessee of a domestic corporation, or by other means. Especially would that be true in this case, appellant says, under such circumstances surrounding its organization as are set out above, and cites the cases of State v. Scott, 22 Neb. 628, 36 N. W. 121, and Koenig v. Chicago, etc. Ry. Co., 27 Neb. 699, 43 N. W. 423, which cases apparently sustain the appellant in its contention. Appellant also cites the case of Simpson v. Teftler, 176 Ark. 1093, 5 S. W. (2d) 350, but which case can have no application to the state of facts presented in the case at bar. The. weight of authority, however, is contrary to the rules announced in the 26th and 27th Nebraska reports, supra, and sustains the position that, while a foreign corporation might not have authority to exercise the right of eminent domain in the procurement of its rights-of-way, it might cause another company of its own stockholders to be so organized as to have that power, and that, when such subsidiary company has obtained the right-of-way, it may lease its line to the foreign corporation.
In the case of Lower v. C. B. & Q. R. Co., 59 Iowa 563, 13 N. W. 718, the court said:
‘ ‘ The evidence shows that the Chillicothe & Chariton Railroad Company has leased the road in question to the Chicago,' Burlington & Quincy Railroad Company, and we think that the evidence shows that the former company was organized with the design of procuring a right-of-way and building a road to be used by the latter company. It does not, however, follow that the plaintiffs have been defrauded. The land taken has been taken for public use, and just compensation, as we must assume, has been made to the plaintiffs. Their real ground of complaint, so far as their alleged equity is concerned, is that they have not been allowed to hold the key to' the situation in such a way as to enable them to defeat the construction of the road, or obtain more than just compensation. The amount demanded by the plaintiffs was such as to show very clearly that it was graduated without any reference to the real damages sustained, but the supposed exigency of the company. Now, while it sometimes happens that a person can, under the protection of law, practice extortion, it is proper for an intended victim to resort to every legal device to defeat the attempted extortion, and, if he succeeds, his action cannot properly be called fraudulent. The plaintiffs, indeed, do not themselves seem to place much reliance upon the alleged ground of fraud. This appears from the emphasis which they place upon the necessity of construing strictly the powers of a corporation. If we could see that the plaintiffs have been defrauded by the defendants, our way would be very clear. The fact of fraud would entitle the plaintiffs to relief, and it would be of very little consequence what the defendants’ powers are. Now, we apprehend that the real question in this case is not a question of fraud, but of power. The plaintiffs, we think, have no right to relief unless they can maintain the correctness of the following proposition: The Chicago, Burlington & Quincy Railroad Company has no power to condemn the land in question. This being so, no other company can be organized with power to condemn it whose sole object is to aid the Chicago, Burlington & Quincy Railroad Company * * *. If, then, the Chicago, Burlington & Quincy Railroad Company lacks the power to build such road, it is simply because its articles of incorporation do not so provide expressly or by reasonable implication. But the Chillicothe & Chariton Railroad Company can build the road, and that, too, even though it derives all its means from the Chicago, Burlington & Quincy Railroad Company, and builds it with the express design of leasing it to that 'company. ’ ’
In the case of Postal Tel. Cable Co. of Utah v. Oregon S. L. R. Co., 23 Utah 474, 65 Pac. 735, the court said:
“After argument the demurrer was overruled by the lower court, and the appellant answered, denying the incorporation of respondent, and basing its defense principally upon an allegation that the respondent is the agent and under the control of the Postal Telegraph Cable Company of New York, a foreign corporation, which has not the power to exercise the right of eminent domain in this State, and which, through the organization of respondent, is seeking to do 'by indirection that which it cannot accomplish in its own name directly, and that in reality respondent has no separate existence from the Postal Telegraph Cable Company of New York. * * * It is also insisted by the appellant that the respondent is not a corporation either de jure or de faoto. The respondent appeárs to have complied fully with the laws of Utah. * * * Clearly it is a corporation, and, being such, it is a legal entity (citing cases), and it is granted the right to exercise the power of eminent domain. It may be true that the Postal Telegraph Company of New York is interested in respondent, but that fact does not divest from respondent any of the corporate powers with which it is clothed. There is nothing in the letter, spirit, or policy of the law which pro- Mbits the same persons from forming and conducting two or more different corporations. This same question was before the United States. Circuit Court for the District of Idaho. Postal Telegraph Cable Co. v. Ore. S. L. R. Co., 104 Fed. 623, is a case upon all-fours with the one at bar. These views are fully sustained by the following authorities (Citing eases).”
In re N. Y. L. & W. R. Co. v. Union Steamboat Co., 90 N. Y. 12, 1 N. E. 27, contains this declaration: ‘ ‘ The fact that a railroad is leased to another is not fatal to its right to have lands condemned for its benefit, upon a case of necessity shown, even though the lessee road is a corporation foreign to the State.”
In 20 C. J. 543, the rule is stated in this language: “The fact, however, that a foreign corporation is interested in a domestic corporation, or owns the greater part of its stock and controls its management, will not prevent the latter from exercising the power of eminent domain.” See also Idaho Postal Telegraph Cable Co. v. Ore. S. L. R. Co., 104 Fed. 623 (affirmed 111 Fed. 842, 49 C. C. A. 663), 90 Am. St. Rep. 705. “The fact that the condemnation of the land in question is also earnestly desired by a foreign corporation and will inure largely to its benefit, furnishes no reason for denying the relief asked for by the petition, provided it has brought itself within the language of the statute authorizing such proceeding.” In re Application of Staten Island Rapid Transit R. Co. etc., 103 N. Y. 251, 8 N. E. 548; In re N. Y. L. & W. R. Co., 99 N. Y. 21, 1 N. E. 27.
The provision of the Constitution of the State of Nebraska with reference to the rights of foreign corporations exercising the right of domain, as quoted and construed in the case of Koenig v. Chicago, etc., Ry. Co., 27 Neb. 699, 43 N. W. 423, and State v. Scott, 22 Neb. 628, declares that no foreign corporation can exercise the right of eminent domain or acquire a right-of-way or real estate for a depot or other uses, and in the ease of Koenig v. Chicago, etc., Ry. Co., supra, the court, refer ring to a foreign railroad corporation, said: “If it cannot acquire, then it is forbidden to hold what it is prohibited from acquiring, because the effect of the denial of the right of acquisition is to prevent it from taking the property, and, as it cannot do indirectly what it is prohibited from doing directly, it cannot acquire and hold a leased line and thus evade a plain constitutional prohibition.” There is no such prohibition in the Constitution of this State, and it is clear that, when a foreign corporation has complied -with the laws of this State with reference to doing business therein, it is authorized to perform all acts and conduct its business in the manner authorized by its charter, except in the case of a plain constitutional restriction.
Section 11, article 12, of the Constitution of Arkansas is as follows:
“Foreign corporations may be authorized to do business in this State under such limitations and restrictions as may be prescribed by law * * *. They shall be subject to the same regulations, limitations and liabilities as like corporations of this State, and shall exercise no other or greater powers, privileges or franchises than may be exercised by like corporations of this State; nor shall they have power to condemn or appropriate private property.”
It will be seen from this language that it is materially different from that of the Constitution of the State of Nebraska, and the only restriction on the powers of foreign corporations doing business in this State is contained in the last clause, to-wit, “nor shall they have power to condemn or appropriate private property.” Since the power to acquire rights-of-way by purchase, lease, or otherwise, is not excepted from the general powers granted, it follows that a foreign corporation may exercise such power. The privilege granted a foreign corporation to do business in this State would be practically nullified if it were restricted from doing the act which was necessary to the prosecution of that business, and, as it is a necessary incident to the business of com panies engaged in the transmission of electricity for public use to acquire rights-of-way, this authority must be deemed to have been granted under its general powers, unless expressly or by necessary implication prohibited in terms expressed in the Constitution, and which it does not do.
We therefore conclude from the language of § 11, article 12, of the Constitution of Arkansas, supra, that the appellee, the legality of whose corporate existence is not questioned, under the terms of its charter had the power to condemn the right-of-way over the lands of appellant and to lease its rights so acquired to a foreign corporation, and we can see no reason for a denial of this right, although it might have been that it was created, among other things, for the purpose of acquiring that right for the benefit of a foreign corporation doing business in this State. If that corporation scould acquire a right-of-way by purchase, it certainly could do the same by any other method, unless such method was prohibited, and the only method which may appear to be prohibited (but which we do not now decide) is that it might not acquire the right-of-way by the exercise of the power of eminent domain. The conclusion we have reached appears to us to be supported by the authorities hereinbefore cited. We therefore hold that a domestic corporation, the business of which, as expressed in its charter, is'to generate and transmit electricity for public use, may lease the right-of-way secured by it to a foreign corporation engaged in a similar business, which has complied with the laws of this State and is doing business therein. And the act- of such domestic corporation in securing such right-of-way by the exercise of its power of eminent domain cannot be questioned, except for fraud shown, although the principal motive for its incorporation was to secure the right-of-way for such foreign corporation, which had been unable to secure it for itself, even when the incorporators of the domestic corporation were employees of and the greater part of its capital stock immediately transferred to said foreign corporation. There are, perhaps, some unusual circumstances connected 'with this case, but it nowhere appears that the appellant has been defrauded in any way. The Southwestern Gras & Electric Company merely resorted to a proper legal device to obtain the right-of-way which it thought necessary for the conduct of its business and which it had been unable to obtain by any.other method from the appellant.
2. Was the purpose for which the right-of-way was sought, to he condemned across the appellant’s orchard one to serve a private use and not a public use? The learned chancellor, on this proposition, made a specific finding of fact in the decree rendered by him as follows: ‘ ‘ The erection of the transmission line on the right-of-way in controversy will serve a public need and purpose either in the hands of the plaintiff in this suit or the Southwestern Gras & Electric Company.” This is a question of fact which has been determined adversely to the contention of the appellant, and which must be sustained, unless it is shown that it is contrary to the clear preponderance of the testimony. It is conceded by the appellee that the right of eminent domain could not be exercised if it is shown that it is being fraudulently used to take private property for a private use instead of a public use. But it is contended by it, and we think properly, that nowhere in the testimony in this case is there any such showing of fraud intended or practiced. It may be true that the sole use to which the appellee seeks to put the property condemned is for the benefit of the Southwestern Gas & Electric Company, but, as that company is extensively engaged in the generation and transmission of electricity for public use, this, of itself, in our opinion, is sufficient to show that the use intended was a public use, and, while the principal immediate purpose was to serve the Standard Pipe Line Company and the American Cement Company, it is also apparent that the increasing needs of the public made necessary the erection of a high voltage power line, and that the line in controversy is used and operated as a part of the transmission line of the Southwestern Gas & Electric Company, and is serving a large number of the citizens of this State. As before observed, this is a question of fact which has been found by the chancellor, and which we think is not against, but supported by, the preponderance of the testimony, and the cases cited by the appellant are not applicable to' the facts disclosed in this record.
3. Was the right-of-way sought to be condemned necessary in order to enable the appellant, or its lessee, to perform their functions and duties to the public 1 This also is a question of fact upon which the chancellor has passed, and we find no evidence that would warrant us in holding that the decision of the 'chancellor was not correct. It is true the Southwestern Gas & Electric Company owned and operated a line near the point where the lands in question were taken, of the capacity of 33,000 volts, but the mere fact that it was going to a great expense in doubling the capacity of that line is persuasive that that company at least thought that the new construction was necessary. We can see no reason why, in enlarging and relocating its lines, the said Southwestern Gas & Electric Company or its subsidiary corporation, appellee here, should be compelled to follow the old transmission line with its meanderings and angles, when, from the nature of the increase made in the transmission capacity, it was apparent that the old rig’ht-of-way and equipment were insufficient. While the Legislature has said that a right-of-way must be necessary for the exercise of the rights of the corporation taking it, the question of whether or not there was a necessity must necessarily be left largely to the discretion of the corporation itself, and, unless it clearly appears that such discretion has been abused and its actions arbitrary and to the unnecessary damage of property owners, the exercise of that discretion will not be disturbed. In this case, while it might have been, and perhaps was, more convenient for the gas and electric company to make some changes in the route followed, this alone would not be a warrant for holding that its action in condemning the right-of-way in question was an unnecessary use of the power exer cised by appellee corporation for its benefit. It is onr opinion that the decree of the chancellor in this particular was correct.
4. Was the chancier}'' court correct in decreeing to appellee a fee simple title in and to the strip of land across the orchard of appellant? The appellant contends, and the appellee seems to admit, that the chancellor by his decree divested the fee simple title in and to the strip of land taken across the land of appellant from the appellant and vested it in the appellee. We have examined the decree, and are unable to discover that the chancellor has rendered any such decree. In the amendment to the complaint it is alleged by appellee that the only use it has for the right-of-way is that it might have the right of ingress and egress for the men and equipment used in the construction and maintenance of the transmission line, and that it would not be necessary to cut and remove any peach trees, and that the cultivation and use of said land by the appellant need not be interfered with in any manner except in so far as the presence of said poles on said land would interfere with same, and, after the construction of the line, appellee would not have occasion, except in some unforeseen emergency, during the life of the poles (which was estimated to be from fifteen to twenty years), to enter upon the land, other than to send one of its men on foot along the transmission line to inspect same about twice a month; but it alleged that it desired the exclusive use of all appellant’s land if it had to pay the full value of same for damages for the right-of-way acquired.
In the decree the court merely held, in the declarations made preliminary to the decree proper, “that the plaintiff should be granted the right to condemn the right-of-way as prayed for in the complaint, upon paying to the defendant damages in the sum of $1,000 on account of the taking of said right-of-way.” Following that, the right-of-way is described, and then comes the decree proper, which is as follows: ‘ ‘ It is therefore by the court considered, ordered and decreed that the plaintiff be and it is hereby granted the right-of-way as hereinbefore described across the lands of defendant, for the purpose of constructing, maintaining and operating said transmission line, conditioned, however, upon the payment to the defendant by the plaintiff, within thirty days from this date, (of) the sum of $1,000, covering* all damage sustained by the defendant on account of the taking of said right-of-way by the plaintiff.” By this decree an easement only is created, and the appellee is necessarily granted the exclusive possession of the property to the extent that such possession is necessary for the erection, operation and maintenance of its line, and to no other or greater extent. By admissions of the appellee in its amended answer, it is shown that the exclusive possession granted was only necessary for the time during the actual erection of the line, or in the case of some unforeseen emergency, -and that the extent of the possession absolutely necessary would be only for the purpose of occasional trips of inspection by its employees. In no case can the fee simple title in its true sense be vested in the corporation exercising the right of eminent domain, for, at whatever time the purpose for which the right-of-way was taken had been accomplished and its use terminated, the possession and all other incidents of ownership would revert to the original owner. It is true, the necessary uses for a parcel of land condemned may be of such nature as to preclude any possession except that of the party exercising the right to condemn, and to that extent an estate in the nature of a fee would be acquired; as, for instance, a railroad corporation might condemn a plot of ground for á depot. The purpose for which this land would be used would be such that the owner could not exercise any possession over it that would be consistent, and not interfere, with the rights of the railroad company, so that it would necessarily have the exclusive possession for all purposes. But in all other cases, except such as of the same nature of the possession stated just above, the owner would have also the right to the possession, subordinate to the paramount possession of the condemnor, and might exercise any and all rights of ownership, except such as were inconsistent, and an interference, with the easement granted.
In the instant case the appellee has the exclusive possession of the strip of land taken for all purposes necessary to carry into effect and maintain the transmission line, and to no other extent. Therefore the appellant still and does have the right to enter upon the same at all reasonable times and for all reasonable purposes not inconsistent, or in interference, with the rights of the appellee. Appellant may continue to grow his peach trees, cultivate them, and gather the fruit, so long as it does not interfere with the property of the appellee or its employees in the performance of their legitimate duties.
The appellee contends that it should not be charged with the full value of the land actually taken, but it has cited a sufficient answer to that contention, namely, ‘ ‘ the company’s remedy in such cases is to condemn no more than it needs..” Ry. v. Combs, 51 Ark. 324-328, 11 S. W. 418. This court has recognized in a number of cases that, in the acquirement of a right-of-way, nothing is obtained save an easement, and we see no reason to now hold otherwise. See Ry. v. Combs, supra; Baucum v. Ark. Power & Light Co., ante, p. 154.
5. Was the damage awarded the appellant adequate? The appellant insists that the entry made upon land and the erection of the transmission line across it was unlawful, and that the improvement inured to its benefit, and therefore, in awarding the damages, the court should have ascertained the value of the whole line as constructed on appellant’s land, and awarded that amount in addition to the other damages given. We think the position of the appellant is untenable. While the line may have been erected without sufficient authority at that time (which we do not here decide), still, in our opinion, this is a matter, if appellant is entitled to damage on tliat score, in which its rights may be fully protected in a proper proceeding, and it is not entitled in this case to the damages claimed.
The appellee, on its cross-appeal, also complains of the award of damages made by the court, on the theory that the same were excessive, and not warranted by the testimony. There were about three acres of land actually taken in the right-of-way, and, without discussing in detail the testimony as to its value and the consequential damage to the orchard of appellant as a whole, we think it is sufficient to sustain the finding of the chancellor; and, as the appellee is entitled to the full value of the three acres taken and such damage to the remainder of the orchard as might be sustained by reason of the erection of the transmission line across same, we think, under all the circumstances in the case, that the finding of the chancellor is not unreasonable or against the clear preponderance of the testimony.
6. On its cross-appeal the appellee asks us to decide the question as to the right of the Southwestern Gas & Electric Company to condemn the right-of-way in controversy. Inasmuch as the 'Southwestern Gas & Electric Company is no longer a party to this suit, we think that question is not properly presented, and, as its decision is not necessary for the decision of this case, we expressly refrain from passing upon that question.
There remains but one matter of which the appellant complains, namely, that the chancellor abused his discretion in adjudging the costs against it. It is our opinion that § 3999 of Crawford & Moses’ Digest does not limit the discretion of the chancellor, for in that section the deposit is “to pay the owners the amount assessed and such costs as may, in the ^discretion of the court, be adjudged against it.” We think the -statute leaves the discretion just where it found it, and we cannot say that any abuse of that discretion has 'been made in this case. Doubtless the chancellor had complete knowledged of all the circumstances surrounding the facts in the case, and perhaps thought the appellant had been given a liberal amount of damages, and that it would be fair to compel it to pay the costs.
As we view this case and the decree rendered in the court below, we are of the opinion that the decree is in conformity with the conclusions we have reached, and it is therefore in all things affirmed. | [
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Hart, C. J.,
(after stating the facts). The correct-
ness of the decree of the chancery court depends upon the construction to be placed upon that part‘of the deed from Alex Armer and his wife to Claude Armer which is copied in onr statement of facts and which need not be repeated here. That mineral deed was executed on the 23d day of June, 1922. At that time there was a mineral lease on the land in favor of Fred Mellor which had been executed by Alex Armer and his wife on the 17th day of June, 1922. By the terms of that lease it was to run for five years from the date thereof, or as long as oil or gas might be produced or saved from the land. The present suit was commenced on the 21st day of June, 1928. This was more than five years from the date of the execution of the mineral lease to Fred Mellor. The record shows that neither Fred Mellor nor his assignees ever drilled or explored the land for oil and gas. Thus, by the terms of the mineral lease, it expired five years from the date of its execution, which was on June 17, 1927.
It will be noted that the part of the deed under which appellees claim to own an undivided one-half interest in the oil and gas in the forty acres of land in question appears in the granting clause of the deed immediately before the habendum clause. In express terms it provides that, if the Mellor lease shall for any reason become forfeited or terminated, all future lease- interests and rentals on said land for oil, gas and mining privileges shall be owned jointly by Claude Armer and Alex Armer. It expressly provides that Claude Armer is to “own one-half portion of an interest in all oil, gas or other minerals in, under and upon said land, and that may be produced therefrom. ’ ’
It is the settled rule in this State that a deed must be construed according to the intention of the parties, ás manifested by the language -of the whole instrument; and it is our duty to give all parts of the deed such construction, if possible, as that they would stand together. Where there is a repugnancy between the granting and the habendum clauses, the former will control the latter. McDill v. Meyer, 94 Ark. 615, 128 S. W. 364; Dempsey v. Davis, 98 Ark. 570, 136 S. W. 975; Mount Olive Stave Co.v. Handford, 112 Ark. 522, 166 S. W. 532; Georgia State Savings Ass’n. v. Dearing, 128 Ark. 149, 193 S. W. 512; Jackson v. Lady, 140 Ark. 512, 216 S. W. 505; Cummins Brothers v. Subiaco Coal Co., 150 Ark. 187, 233 S. W. 1075; Alexander v. Morris & Co., 168 Ark. 31, 270 S. W. 88; and Pelt v. Dockery, 176 Ark. 418, 3 S. W. (2d) 62.
In the present case there is no conflict between the granting and habendum clauses of the deed, and by the plain terms of the deed itself Claude Armer became entitled to one-half of the oil, gas and other minerals in said land after the lease by Alex Armer and his wife to Fred Mellor had expired on the 17th day of June, 1927. Claude Armer died intestate in Union County, Arkansas, where the land was situated, on the 24th day of September, 1926; and after Ms death his widow, Sallye A. Armer, and the other appellees, who were his children and sole heirs at law, became the owners of the said undivided one-half interest in the oil and gas in the forty acres of land described in the complaint. The conveyance made by Alex Armer to G-eorge M. LeCroy was made on the 18th day of April, 1927. This conveyance in no wise could affect the interests of appellees, which had become vested in them by a prior conveyance. On the 18th day of June, 1928, George M. LeCroy and his wife conveyed the land to the Citizens-’ Investment Company, a corporation. It could only acquire by said deed the rights of its grantor.
It follows that the rights of appellees to an undivided one-half interest in the oil and gas in said forty acres of land had become vested before the execution of the deed by Alex Armer to George M. LeCroy and the subsequent conveyance by George M. LeCroy and wife to the Citizens’ Investment Company. Therefore the decree of the chancery court quieting the title in appellees to an undivided one-half interest in the oil and gas in said forty acres of land was correct, and must be affirmed. | [
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Smith, J.
The residents of common school districts in Hot Spring County known as Magnet Cove, Meadow View and Butterfield filed petitions with the board of education of that county to consolidate these districts into a rural special school district to be known as Bural Special School District No. 8. These petitions were presented to the board of eduoation on July 16, 1928, and an election was ordered to be held on July 26.
Citizens of Meadow View School District gave notice that they would apply for a restraining order to prevent the holding- of this election, and on July 21 another petition was filed by residents of Magnet Cove and Butter-field districts, praying that those districts be consolidated. The prayer of this petition was granted on the day it was filed, and an election was ordered to be held on the - question of the consolidation of these two last-named districts into a rural special school district. This election was held, and, ■ excepting one resident of District No. 4-5, known as the Butterfield District, only electors of District No. 8 — or the Magnet Cove District — ■ voted. A unanimous vote was cast for consolidation.
Certain residents of the Butterfield District brought suit in the circuit court to contest this election, and, as grounds therefor, alleged numerous irregularities in connection with the petition ordering the election and in holding it. The circuit court dismissed this suit upon the ground that the contest had not been filed within fifteen days after the date of the- election, before the board of eduoation, as required by § 8878, C. & M. Digest.
The order dismissing that suit was entered October 1, and on October 6 suit was brought in equity against the persons who had been elected as directors at the election on July 31 to prevent them from discharging the duties of directors of the consolidated rural special school district. The charges of irregularities and fraud were renewed in this complaint, and it was alleged that the order of the board of education calling the election which was held on July 31 was void as being unauthorized by law. This suit was dismissed by the chancellor as being without equity, and an appeal has been prosecuted to reverse that decree.
It may be said that the judgment of the circuit court in dismissing the action pending there, in which the validity of the election was raised, is conclusive of all questions concerning the regularity of this election or of fraud in holding it. The circuit court had jurisdiction to determine these questions, and the judgment of the court, until set aside by its own order or reversed by this court, is final and conclusive. But the action of the circuit court in dismissing the contest as not having been taken in time is not conclusive of the question of the power of the hoard of education to order the election. That question has not been determined.
In the case of Cooper v. McCoy, 116 Ark. 595, 173 S. W. 413, it was said:
“It is well settled that a former judgment in order to be a 'bar must have been a decision of the merits of the cause. In Smith v. McNeal, 109 U. S. 426, (3 S. Ct. 319), the court, quoting from Hughes v. U. S., 4 Wall. 232, said: ‘In order that a judgment may constitute a bar to another suit it must be rendered in a proceeding between the same parties or their privies, and the point of controversy must be the same in both oases, and must be determined on its merits. If the first suit was dismissed for defect in pleadings or parties, or a misconception of the form of the proceeding, or the want of jurisdiction, or was disposed of on any ground which did not go to the merits of the action, the judgment rendered will prove no bar to another suit.’ ” See also Sauls v. Sherrick, 121 Ark. 594, 182 S. W. 269; Quisenberry v. Davis, 136 Ark. 115, 206 S. W. 139; Howard-Sevier Roacl Imp. Dist. v. Hunt, 166 Ark. 62, 265 S. W. 517.
We are of the opinion that the board of education had no power to make the order on July 21 calling the election to be held July 31, for the reason that, at the time the order was made, there was an unrevoked order of the board calling an election to be held, affecting a portion of the same territory, on July 26.
Section 8835, C. & M. Digest, reads as follows: ‘ ‘ When an election has been called under the provisions of this act, no election can be ordered on another petition embracing the same territory or any part thereof until an adverse vote has been bad on tbe first petition, or the time for holding the election first called shall have passed without said election being held.”
The obvious purpose of this section of the statute was to prevent just such confusion as has occurred here. The board of education might, of course, revoke an order calling an election, and if this were done there would be no order calling an election; but, if the order is not revoked or set aside, the power does not exist in the board of education to call another election embracing the same territory, or any part of it, until an adverse vote has been had, or the time for holding the election first called shall have passed. Here the second election was called before there had been an adverse vote on the first petition and before the time for holding the election first called had passed. There was therefore no authority under the law to order the second election when the board made that order, and the election held thereunder was a nullity. In the case of Simpson v. Teftler, 176 Ark. 1087, 5 S. W. (2d) 350, it was said that “any election held without authority is a nullity.”
It was stipulated by opposing counsel that the chairman of the board of education “would'testify that the board at no time made an order revoking the election called upon the- first petition, but that, after the notice for the restraining order had been served upon them and the directors of each district, it was agreed by the board that that election be abandoned and not held. ’ ’
The board can only act when convened as such. There must be a meeting at which all are present, or of which all have notice, and a formal order of the board, such as that of July 16, can only be rescinded or revoked by the vote of a majority of a quorum of the board at a board meeting. No such action was taken, and the election of July 31 was therefore held without authority of law, and was a nullity.
The decree of the court below will therefore be reversed, and the cause will be remanded with directions to the chancery court to enter a decree 'conforming to this opinion. | [
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Johnson, C. J.,
(after stating the facts). In holding the two mortgages void in so far as they affect the interests of the three minor children, the trial court evidently based his findings upon the case of Rose v. W. B. Worthen Company, 184 Ark. 550, 42 S. W. (2d) 1002.
In that case this court had under consideration a mortgage executed by a guardian in behalf of her wards which was duly authorized by the probate court of Pulaski County upon petition therefor, as follows:
“ Petitioners pray that, in order to care for the liens, to keep the heirs in school and prevent them becoming subjects of charity, and to prevent waste and loss of the balance of the estate, that petitioner, as guardian and curator, be authorized and directed to borrow $750 at the best possible rate of interest and to mortgage the interest of her wards in the real estate to secure the payment therefor.”
The probate court of Pulaski County granted the petition of the guardian and authorized the execution of the mortgage. The mortgage was executed in conformity to the probate court order. This court, in disposing of the question there presented, used the following language:
“Under our former statutes no authority was given executors, administrators or guardians to borrow money and mortgage real property of the estate to secure funds for maintenance and education of the minors. But act 195 of 1927 authorizes such executors, administrators and guardians to borrow money for certain purposes and secure the same by mortgage upon the real estate belonging to the estate represented by them. Section 120b, Castle’s Supplement to Crawford & Moses’ Digest, provides the procedure and reads as follows:
“When any administrator, executor or guardian presents to the probate court of the county in which any real property belonging to the estate represented by such administrator, executor or guardian is situated, his petition for permission and authority to mortgage the real property, or any part thereof belonging to said estate, in Arkansas, for the purpose of raising money to pay obligations secured by liens against any real property belonging to the estate represented by such administrator, executor or guardian, wherever situated, such probate court shall examine the same, and hear the evidence, and, if satisfied that it would be to the best interest of such estate, then said court shall grant the petition and authorize such administrator, executor or guardian to borrow money and execute notes for the same, secured by a mortgage or trust deed to be executed by said administrator, executor or guardian on any part of the real estate belonging to such estate, situated in Arkansas. Provided, that the homestead shall not be incumbered by mortgage or trust deed except for the purpose of satisfying existing liens against said homestead.” There is no authority granted by this statute to borrow money and secure the same by a mortgage or deed of trust except for the purposes specified in the act, and it contains no expression authorizing the borrowing of money for the maintenance and education of the minors. The probate court was without power to authorize the borrowing of money and execution of a mortgage by the guardian, etc., for any other purpose than as expressed in the statute, and its order authorizing it, as well as the mortgage executed in pursuance thereof for money to be used for any other purpose, were void, and such mortgage constituted no lien against the lands and cannot be ihforced against them for any money borrowed and expended for any purpose other than as specified in said statute.
After most serious consideration, we have concluded that the doctrine announced in the Bose case, supra, to the effect that no authority of law existed prior to act 195 of 1927 permitting- guardians to mortgage or incumber by deeds of trust their wards ’ interest in real estate in Arkansas for educational purposes is hereby expressly overruled, because:
The Legislature of 1873 passed an act, which is now § 5037 of Crawford & Moses’ Digest, which reads as follows .-
‘ ‘ The probate court shall order the proper education of minors according to their means, and for that purpose may, from time to time, make the necessary appropriations of the money or personal estate of any minor, and, when the personal estate shall be insufficient or not applicable to the object, upon application the court may order the lease or sale of real estate, or so much thereof as may be requisite, or that the same be mortgaged for not less than two-thirds of its real value, to raise the funds necessary to complete the education of such minor.” Act April 22, 1873, p. 185.
This section of the act of 1873 has been brought forward by all the digesters of the statutes of this State since that time and has been treated and considered by every one as a part of the laws of this State. Section 5037, quoted supra, in plain and simple language gives to guardians the right and authority, after application to and approval by the probate court, to execute mortgages on their ward’s lands for the purpose of raising- money for the education of such wards. By the terms of this section of the statute, the ward’s rights and interests are protected by the orders and findings of the probate courts, which courts, by constitutional enactment, are vested with superintending control over all such estates. Article 7, § 34, Constitution of 1874. This section of the Digest further protects the interests of the ward, in that the lands must be appraised by disinterested persons appointed by the probate court. It further protects their interest, in this, that such mortgage cannot be executed until it is determined by the probate court that the personal estate of such ward is insufficient or inapplicable to the object.
We now hold that under the act of April 22, 1873, a part of which is now § 5037 of Crawford & Moses’ Digest, guardians and curators do have authority, after approval of the probate court of the county wherein the lands are situated, to execute valid mortgages and deeds of trust upon the wards’ lands for educational purposes.
It is insisted in the instant case that § 5037 of Crawford & Moses’ Digest has been repealed by act 195 of 1927. Section 2 of act 195 of 1927, which is said to repeal § 5037 of Crawford & Moses’ Digest, reads as follows:
‘ ‘ That when any administrator, executor or guardian presents to the probate court of the county in which any real property belonging to the estate represented by such administrator, executor or guardian is situated, his petition for permission and authority to mortgage the real property, or any part thereof, belonging to said estate, in Arkansas, for the purpose of raising money to pay obligations secured by liens against any real property belonging to the estate represented by such administrator, executor or guardian, wherever situated, such probate court shall examine the same, and hear the evidence, and, if satisfied that it would be to the best interest of such estate, then said court shall grant the petition and authorize such administrator, executor or guardian to borrow money and execute notes for the same, secured by a mortgage or trust deed to be executed by said administrator, executor or guardian on any part of the real estate belonging to such estate, situated in Arkansas. Provided, that the homestead shall not be incumbered by mortgage or trust deed except for the purpose of satisfying existing liens against said homestead.”
If § 5037 of Crawford & Moses’ Digest is repealed by act 195 of 1927, it must be by implication, because no direct repeal is effected by plain terms of the act.
Repeals by implication are not favored in the law. Houck v. State, 166 Ark. 613, 267 S. W. 127; State v. White, 170 Ark. 880, 281 S. W. 678; Mays v. Phillips County, 168 Ark. 826, 272 S. W. 62.
This court held in Babb v. El Dorado, 170 Ark. 10, 278 S. W. 649, that “the repeal of any law merely hy implication is not favored and the repeal will not be allowed unless the implication is clear and irresistible.”
Again, this court held in Gilliland Oil Company v. State ex rel. Attorney General, 171 Ark. 415, 285 S. W. 16, that “the presumption is against repeal of statutes by implication.”
Tested by the rules above announced, it is perfectly evident that act 195 of 1927 does not repeal by implication any part of § 5037 of Crawford & Moses’ Digest other than the homestead rights of the minors, which will be discussed hereafter. In other words, we now conclude that act 195 of 1927 gives to g-uardians the additional right and authority to mortgage their wards ’ lands for the purpose of refunding subsisting liens against the same, and withdraws all authority of such guardians to incumber their wards’ homesteads, except for the purpose of refunding subsisting liens against such homesteads.
It will be noted that the proviso appearing at the end of § 2 of act 195 of 1927 reads as follows:
“That the homestead shall not be incumbered by a moidgage or trust deeds except for the purpose of satisfying existing liens against said homestead.” This proviso has the effect of withdrawing- all authority from guardians to moi'tgage or incumber by deeds of trust the homestead rights of minors for any purpose other than “raising money to pay obligations secured by liens against such homesteads.”
The effect of our holding- is that, under § 5037 of Crawford & Moses’ Digest, guardians and curators had the power and authority, with the approval of the probate courts, to execute mortgages and deeds of trust upon the real estate belonging- to their wards for educational purposes, which necessarily included the right to mortgage the homestead of such minors. This authority existed up to the effectiveness of act 195 of 1927. This act withdrew all authority theretofore in guardians to mortgage the homestead except for the purposes expressly recognized in said act.
The two mortgages in the instant case, having been executed after the effectiveness of act 195 of 1927, their validity must be measured by said act.
It follows from what we have said that the mortgage upon lot 10 in block 426, DuYall’s addition to Little Rock, the same being the homestead of the minors, is void in so far as the minors’ interests are concerned, and the chancellor was correct in so holding. The mortgage, however, covering lot 9 in block 426 is a valid lien against the minors’ interest in said lot, and the chancellor erred in holding otherwise.
For the reasons aforesaid, the case is reversed, and the cause is remanded with directions to.the chancery court to enter a decree in conformity with this opinion. | [
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McHaNey, J.
Appellant and appellee were rival candidates for the office of sheriff of Conway County, before the primary election held on August 14, 1928. According to the returns of said election, as certified by the Democratic County Central Committee,, appellee received 1,302 votes and appellant 1,121 votes, or a majority of 181 votes in favor of the appellee.
Within the time provided-by-law appellant instituted, this contest in the circuit court of said county, by filing a complaint charging that he had received 1,121 legal votes, and that, although appellee was credited with 1,302 votes, 720 theréof “were illegal, should not have been counted,' and that he had therefore been nominated by a majority of 539 legal votes. The complaint further alleged that, of the 720 illegal votes counted for appellee, 250 were illegal because they had not assessed any poll tax prior to the second Monday in September, 1927, either with the assessor or county clerk, and that more than 470 of said number of illegal votes should be rejected because their names did not appear on the certified list of legal voters furnished to the election judges, and that in no instance did the judges require persons whose names were not listed in the printed list of qualified electors to' exhibit a poll-tax receipt or certified copy thereof, or an affidavit showing that any of such persons had attained the age of twenty-one years since the last assessing time, and that the judges wholly failed to make a separate list of the names of such persons voting who were not on the certified list, together with the other evidence of their right to vote, nor was any such record returned to the county central committee with the returns of the election, as required by law. The complaint further alleged in detail the names and numbers of persons so voting whose votes were charged to be illegal in the various townships, and challenged other votes on other grounds.
Appellee answered, denying all the material allegations in plaintiff’s complaint, and filed a cross-complaint, alleging that appellant received many illegal votes for various reasons.
Much testimony was taken by both parties, and many weeks were consumed in the taking of testimony and in the trial of the case, running through a record of more than 1,200 pages. During the course of the proceeding the court appointed a canvassing committee of four persons to recount the ballots, - of which each of the parties named two, and this committee-, after canvassing the votes, made- a report showing that appellee had received 1,275 votes and appellant 1,135, or a majority of 140 votes for appellee. This committee was appointed and made its report -subject to the right of the court to hear the testimony and determine the legality of many votes. At the conclusion of the hearing, the court made the following finding:
“On this day the ease of Fred Brown, contestant, versus Sherman Nisler, oontestee, is submitted to the oourt upon the pleadings and testimony and the argument of counsel; and the court holds that § 3740,0. & M. Digest, was not substantially complied with, and that the printed list purporting to be a list of the poll-tax payers under said section was not made in the manner provided by law, and that it has no legal and binding effect, and that the contestant’s, cause of action fails because of the failure upon the part of the officers to file a proper list of the poll-tax payers in the manner provided by law, and the contestant’s cause of action is therefore dismissed.”
We are first called upon to decide whether the learned trial court was correct in so holding. If this holding of the court is correct, that is, that § 3740 of C. & M. Digest was. not substantially complied with, it necessarily follows that appellant’s contest must fail, because there is no basis for determining the legality of many of the votes challenged by appellant. This section of the Digest reads as follows':
“On the first Monday in July of each year the collector shall file with the county clerk a list containing the correct names, alphabetically arranged (according to political or voting townships, and according to color), of all persons who have, up to.and including that date, paid the poll tax assessed against them respectively. The correctness of this list shall be authenticated by the affidavit of the collector in person. The county clerk shall at once record the said list in a well-bound book to be kept for that purpose, and, on or before the 15th day of July, shall deliver to the county election commissioners, or to the chairman or secretary of the said board, a certified copy thereof. The original shall be kept on file in the office of the said clerk, free to the inspection of any elector of said county, and the clerk shall, on demand, accompanied by the fee prescribed by law for making a copy of any instrument for record, make a copy thereof for any person. The county election commissioners shall cause to be printed a sufficient number of said lists to supply to each judge of election at every general or special election a copy thereof, to be sent to such judge with the ballots and blank poll books now directed to be sent preparatory to holding an election. The said election commissioners are authorized to have said printing done at an expense not to exceed one dollar and fifty cents for each one hundred names on said list. The fees of the county clerk for all services to be rendered by him in filing, recording and furnishing to the election commissioners a certified copy of said list shall be ten cents for each one hundred words contained in said list and the certified copy thereof so furnished to said commissioners.”
The very first requirement of this statute is that the collector shall, on the first Monday in July, file with the county clerk the list of poll-tax payers, and that “the correctness of this, list shall be authenticated by the affidavit of the collector in person.” The statute does not permit a deputy in the collector’s office to authenticate the list, but it must be done by the collector himself, on his own affidavit. When the list is. filed with the clerk, it is made his duty to record it in a well-bound book to be kept for that purpose, and, on or before the 15th of July, he is required to deliver a certified copy thereof to the county board of election commissioners, and shall keep the original as made by the collector in his office for the inspection of any elector. The statute next makes it the duty of the election commissioners to have printed a sufficient number of said lists to supply each judge of election at every general or special election a copy thereof, which shall be sent to the judges of election with the poll books and other election supplies. These are the positive requirements of the statute.
The evidence in this record shows that these provisions were wholly disregarded. The collector did not make such a list, or any list, of the poll-tax payers. No such list was verified by the collector, by his. affidavit, in person, or otherwise. No such list verified by the collector was filed with the clerk, and a certified copy of no such, list was made by the cleric and delivered to the board of election commissioners. What did happen was, that the clerk took the taxbooks and himself made a list of the poll-tax payer®, which he delivered to a printer to be printed. The printer printed the list given him by the clerk, and himself sent one copy thereof to the judg’es of election with the other election supplies for holding’ the primary election. The trial court held that this was not a substantial compliance with the act, and, we think, correctly so. It was no' compliance with the act. True, this, court held in Taaffe v. Sanderson, 173 Ark. 970, 294 S. W. 74, that a substantial compliance with the statute was sufficient, but in that case, while the opinion does not state what was done by way of compliance with the act, the record in that ease, which we have again reviewed, shows that everything was done in compliance with the law except delivering’ the list to the election commissioners by the clerk, to be caused to be printed by them. Instead of doing that, the clerk delivered a certified copy of the list to the printer instead 'of to the election commissioners. The list was made by the collector and delivered to the clerk, as required by law. We do not know what the Legislature had in mind in requiring the list to be prepared, handled and published in the manner required by the statute, unless it was to throw as many safeguards around the preparation and publication of said list as possible, in order that it might import its own truthfulness and verity as other public records and documents. Upon the correctness of this list, in a vast majority of instances, depends the sacred right to vote and to have that vote counted by the judges of election and by the court in any contest growing out of any election. Section 3777, O. & M. Digest, provides:
“No person shall be allowed to vote at any primary election held under the laws of this State who shall not exhibit a poll-tax receipt or other evidence that he has paid his poll tax within the time prescribed by law to entitle him to vote at the succeeding general State election. Such other evidence shall he: (a) A copy of such receipt, duly certified by the clerk of the county court of the county where such tax was paid; (b) or such person’s name shall appear upon the list required to be certified to the judges of election by § 3740; or, if any person offering to vote shall have attained the age of twenty-one years since the time of assessing taxes next preceding such election, which period of assessment is here declared to mean between the second Monday in May and the second Monday in September of each year, and possesses the other necessary qualifications, and shall submit evidence by written affidavit, satisfactory to the judges of election, establishing that fact, he shall be permitted to vote. .All such original and certified copies of poll-tax receipts and written affidavits shall be filed with the judges of election and returned by them with their other returns of election, and the said judges of election shall, in addition to their regular list of voters, make an additional list upon their poll books of all such persons permitted by them to vote, whose names'do not appear upon the certified list of poll-tax payers, and such poll books shall have a separate page for the purpose of recording names of such persons. * * The certified lists required by § 3740 shall contain, in addition to the name of the person paying such poll tax, his color, residence, postoffice address (rural route, town or street address, where by ordinance the numbering of houses is required), the school district and voting precinct, and such list shall be arranged in alphabetical order, according to the respective voting precincts. The county election commissioners shall supply the judges of primary elections with printed copies of such lists. For each error rendering void the poll-tax receipt, in the transcribing, certification or printing of the names, color, residence, postoffice address, school, district, or voting precinct of such persons, the collector,- clerk . or printer making the same shall be assessed the sum of one dollar,which sum or sums shall'be deducted from any sums due such officer or printer from the county when settlements are made with such officer or printer, and the enforcement hereof is made mandatory upon the county court. * * * In any contest arising upon any election held under this act, it shall he a ground of rejection of any ballot cast by an elector whose name (a) does not appear upon the certified list of poll-tax payers; or (b) who has not filed with the judges of election his. original or certified copy of poll-tax receipt, or written affidavit of the attainment of his majority; or (c) if such original or certified copy of such poll-tax receipt or written affidavit has not been returned 'by the judges qf election; or (d) the name of such person listed separately and certified as required by this act.”
It will be noticed in the above section of the statute that a penalty is provided against the collector, printer or clerk, whoever may make the error, of $1 for each error, the object being to have printed as nearly an absolutely correct list as possible. If the voter’s name does not appear upon the printed list, his vote cannot be counted in any contest, unless the other evidence required by law is returned by the judges, on a separate list with such other evidence. So it will be seen that the correctness and truthfulness of the list is made the basis for determining fundamental rights, not only of the candidates themselves, but of the citizen’s right of franchise. The election judges in this particular case in Conway County did not require any other evidence of a person’s right to vote, or, if so, they did not make and return a separate list of electors whose names did not appear on the printed list, with such other evidence of their right to vote. Therefore,' treating the list as the basis for determining this contest as a legal list, the court would have been under the necessity of refusing to count any person’s vote whose name did not appear on the printed list, as no other evidence was returned by the judges of the election.
The effect of not substantially complying with the law with regard to the preparation and publication of the printed list of voters was to nullify the list and leave the same condition as if no list had been printed at all. As was held by this court in McLain v. Fish, 159 Ark. 199, 251 S. W. 686, the provisions of the statute, § 8777, C. & M. Digest, are mandatory. And in Storey v. Looney, 166 Ark. 455, 265 S. W. 51, it was said:
“'We decided in the case of McLain v. Fish, 159 Ark. 199, 251 S. W. 686, that the provisions of the statute quoted above (§ 3777, C. & M. Digest), are mandatory, and that, in the contest of an election, where a list was published as required by statute, the qualifications, of voters not on the list must be proved in accordance with the statute, or be excluded.”
In Storey v. Looney, supra, there was no published list of persons who paid their poll tax furnished to the election officers, and none of the persons voting at the election furnished the judges of election other evidence of their right to vote. Appellant there contended that the election was. totally void; that there was no legal nomination made. The court said:
“The question necessarily presents itself in the beginning, whether or not appellant is in an attitude to contest the certificate of nomination awarded to appellee. Appellant’s contention being that there was no valid nomination at all, he is not a claimant himself for the nomination, and all that can be done by the court is to cancel the certificate of nomination awarded to appellee. This is therefore not really a contest for nomination as contemplated and authorized by the statute. In order to make a contest for the nomination, appellant must show that he is entitled to the nomination himself, which he fails to do.”
Tn the case before us, appellant contends that he is the rightful nominee. He is contesting appellee’s right to the nomination, and claims that he received a majority of the legal votes, but he bases his contest almost entirely on the printed list, and since, as we have already shown, the printed list was invalid, not having been compiled in substantial compliance with the provisions of the statute, his contest must necessarily fail, and the circuit court was correct in dismissing his complaint.
Judgment, affirmed.
Smith and Kirby, JJ., dissent. | [
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McHaney, J.
This is the second appeal of this case. The facts are stated in the opinion in the former case, North Arkansas Highway Improvement District No. 2 v. Home Telephone Co., 176 Ark. 553, 3 S. W. (2d) 307. To repeat briefly, appellant sued the Davis Construction Company in the Fulton Circuit Court to recover for damages done to its telephone line in building the highway being constructed in the district. The Davis Construction Company answered, and prayed that appellee be made a party defendant, and that, if a judgment be obtained against it, it have judgment against the district for a like sum. The court made an order making the district a defendant, and some land of service was had upon the district, and judgment was entered by default against it, and in favor of the Davis Construction Company. When it discovered that a judgment had been entered against it, it filed a motion to quash such judgment on the ground that it had not been properly served in the action, and that it could not be sued in Fulton County, by reason of the provisions of § 4, act 473, Acts of 1917, page 2181.
Appellant interposed a demurrer to the motion to quash, which the court sustained, and the district appealed to this court, which resulted in a reversal, and the case was remanded, with directions to overrule the demurrer, and for further proceedings in accordance with law and not inconsistent with the opinion.
Mandate was taken out and filed in the lower court, and appellant thereupon filed a response to the motion to quash, to which the appellee interposed, and the court sustained, a demurrer. On the former appeal, the court said: ‘ ‘ The court was without jurisdiction to bring the highway district into court in Fulton County, its domicile, being fixed by law in Izard County, and service being required to be had in all suits against it by service had on the commissioner of that county. Section 4, act 473 of the Acts of 1917.”
Upon an examination of the response in connection with the opinion of this court in the former appeal, we think the demurrer to the response was properly sustained. This court expressly held that the Pulton Circuit Court was without jurisdiction to bring the highway district into its court, under the authority of the act creating the district, and there is no showing that the commissioners voluntarily entered the appearance of the district in the action so as to give the Pulton Circuit Court jurisdiction, even though it be conceded that they could do so. Moreover, appellant is in no position to complain at the action of the court in quashing the judgment against the district in favor of the Davis Construction Company. True, it has garnished the district on its judgment against Davis, but that would not authorize appellant to resist a motion to quash a judgment obtained by the Davis Construction Company against the district.
We find no error, and the judgment is affirmed. | [
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Mehaffy, J.
Appellee, Marvin Tilghmon, brought suit in the Drew Circuit Court against the appellant for damages for personal injuries alleged to have been caused by the negligence of the appellant, Ottie Dellinger. Ottie Dellinger owns and operates the Dellinger Truck Line, and is a public carrier of freight for hire over the highway between Monticello and Little Rock, Arkansas, and intermediate points, using a one ton Chevrolet truck with trailer.
On September 25, 1931, appellee was riding on one of appellant’s trucks which was operated and controlled by Travis Blacldedge, who was alleged to have been the agent, employee, foreman and vice-principal of Ottie Dellinger. It was alleged that on said day Blaekledge carelessly and negligently drove said truck off of the highway into a deep ditch, and against a high embankment or side of said ditch; that appellee was thrown from his seat out of said truck, on the ground, and was run over by the truck; that the freight and merchandise in said truck were thrown upon appellee, and his right leg was crushed and broken above the ankle; that the leg had to be amputated; that his body was otherwise bruised; and that he was seriously and permanently injured, both internally and externally.
Appellant filed answer, denying all the material allegations of the complaint, and alleging that appellee and Blacldedge were fellow-servants, which precluded appellee from a recovery for the negligence of the fellow-servant. The case was tried, and resulted in a verdict and judgment in favor of appellee, and the case is here on appeal.
It is first contended by the appellant that the court erred in refusing to direct a verdict for the appellant. There is no dispute about the injury to appellee, and the evidence was ample to submit the questions to the jury.
If appellee and Blaekledge were fellow-servants, then no recovery could be had because of the negligence of Blaekledge. If, on the other hand, Blaekledge was a vice-principal, or if appellee was a passenger, then in either event he would be entitled to recover. The case will have to be tried again, and it is unnecessary to set out the evidence. But it is sufficient to say that we all agree that the evidence was sufficient to submit the questions to the jury.
It is next contended that the court erred in giving' appellee’s instruction O. It reads as follows: “If you find from a preponderance of the evidence that the defendant, Ottie Dellinger, doing business as Dellinger Truck Line, agreed that the plaintiff, Marvin Tilghmon, might ride from Monticello to Little Bock and return for the consideration of services rendered and to be rendered by the said Marvin Tilghmon in loading and unloading freight, and that while so riding the truck in which he was riding was carelessly and negligently driven off the highway, if you find that this was due to negligence, and that plaintiff, Marvin Tilghmon, was injured as the result of negligence in the driving of said truck off the highway, your verdict should be for the plaintiff.”
A majority of the court agree that this instruction should not have been given. Instructions were given at the request of the appellant, submitting the question whether appellee and Blackledge were fellow-servants, and instruction C, quoted above, authorized the jury to find for the appellee if they found that Blackledge was negligent, and the appellee was injured as a result of that negligence.
A majority of the court are of the opinion that, whether Blackledge was a fellow-servant or vice-principal, and also whether appellee was a passenger, are questions that should have been submitted to the jury, and, for that reason the majority holds that instruction C should not have been given.
If appellee was a passenger in the exercise of ordinary care and injured by the negligence of appellant’s servant, he is entitled to recover. If Blackledge was a vice-principal, and not a fellow-servant, appellee is entitled to recover. If, on the other hand, Blackledge and appellee were fellow-servants, appellee could not recover for the negligence of Blackledge.
A majority of this court is of the opinion that these questions should be submitted to the jury under proper instructions.
For the error in giving instruction C, the judgment is reversed, and the cause remanded for a new trial. | [
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McHaney, J.
Appellant was indicted in three counts jointly with.Clifford and Gene Harhack for the murder of Dolph Guthrie. In the first count they were charged with said murder in that they conspired to and did rob the First National Bank of Paris, and in doing so did kill and murder said Guthrie, a teller in said bank, by shooting him. In other words, all were charged with shooting Guthrie. The second count charges them with the same offense in the same way, except the actual shooting of Guthrie is charged to Clifford Harback, and that appellant and Gene Harback were accessories before the fact. The third count, after alleging the conspiracy to rob and the actual robbing of said bank as in the first and second counts, further charged that the offense was committed as follows: “the said John Wilson, Clifford Harback and Gene Harback, in carrying out said intentions and common purpose of robbing said bank and effecting their escape, and while, executing the purpose of said conspiracy aforesaid, feloniously, wilfully and of their malice aforethought and for their own protection from arrest and attack by officers or other persons from arresting them, the said John Wilson, Clifford Harback and Gene Harback, or either of them, compelled and forced Dolph Guthrie, against his will and consent, to accompany them out of said bank from a place of safety to a place known by said John Wilson, Clifford Harback and Gene Harback to be a place of great danger and exposed the said Dolph Guthrie to said danger from said attack upon them, the said John Wilson, Clifford Harback and Gene Harback by officers or other citizens in arresting them and preventing their escape, it was apparent to the said John Wilson, Clifford Harback and Gene Harback that the said Dolph Guthrie would naturally and necessarily be exposed to death and likely to lose Ms life, compelled the said Dolph Guthrie to accompany them from said place of safety to said place of danger as a shield from said attack from said officers or other persons and Andy Connoughton, the city marshal of the city of Paris, while attempting to arrest them, the said John Wilson, Clifford Harback and Gene Harback, and preventing- their escape, and intending to shoot the said John Wilson, Clifford Harback and Gene Harback, the said Andy Connoughton accidentally, innocently and with no intention to injure the said Dolph Guthrie, he the said Andy Connoughton did shoot at them, the said John Wilson, Clifford Harback and Gene Harback, but did shoot, accidentally and unintentionally, the said Dolph Guthrie in and upon the head and body, from the effect of said wounds so inflicted, he, the said Dolph Guthrie, died on the 30th day of May, 1933, against the peace and dignity of the State of Arkansas.”
Appellant was convicted under said indictment and sentenced to life imprisonment.
For a reversal of the judgment against him, appellant first says the court erred in refusing him a continuance or postponement from Monday to Wednesday. No formal motion was filed and no attempt was made to comply with § 1270, Crawford & Moses’ Digest. The case was set for trial on August 24 for September 11, and, while it is true appellant was confined in the penitentiary, it is also true he was represented by counsel on August 24, and thereafter up to and during the trial. He had ample time to prepare his case for trial. Continuances and postponements of trials in criminal cases rest in the sound discretion of the trial court, and this court does not reverse for failure to grant them unless an abuse of discretion is shown. No abuse of discretion' is shown in this case.
Appellant next says the court erred in not requiring the State to elect upon which count of the indictment it would go to trial. We cannot agree. Counts one and three charged appellant with murder in the first degree for the killing of Guthrie in different ways. Count two charged him with accessory before the fact to the murder of Guthrie. The statute, § 3015, Crawford & Moses’ Digest, provides that: “An indictment except in cases mentioned in the next section, must charge but one offense, but, if it may have been committed by different modes and by different means, the indictment may allege the modes and means in the alternative. ’ ’ The next section referred to gives a number of offenses that may be joined in one indictment. This court has frequently held that an indictment for murder may charge the killing in different ways in separate counts. See Owens v. State, 159 Ark. 505, 252 S. W. 25, where a number of cases are collected to the same effect. It is also the holding of this court and generally that it is permissible to charge one as principal and as accessory before the fact to murder in the same indictment, since they are only different modes of charging the same offense. Lay v. State, 42 Ark. 105; Gill v. State, 59 Ark. 422, 27 S. W. 598; 2 Bish. Cr. Pr., § 7. Therefore the court did not err in refusing to require the State to elect.
The final and most interesting assignment of error relates to count three of the indictment, to which a demurrer was interposed, and to an instruction based thereon. While there is some evidence tending to show that Guthrie may have been killed by one of the robbers, we prefer to base this decision on the assumption that he was accidentally killed by the town marshal. While the robbers were engaged in robbing the bank, the marshal, Ancty Connoughton, thinking something was wrong, walked to the front door of the bank, shook the door and looked in. He met Mr. Wayne Cook and told him to get a gun. The robbers knew they had been discovered and hastened to leave the bank with their loot. One of them with a drawn pistol forced Guthrie to go with them. When they emerged from the bank the marshal ordered them to halt and fired at appellant, who returned the fire, wounding the marshal, who fired another shot after he fell. One, perhaps the first, of the shots by the marshal, killed Guthrie.
The question raised by the demurrer and the exception to the instruction is a new one to this jurisdiction, for we have never before, so far as the diligence of counsel and our own investigation discloses, had the precise point presented for determination. Other jurisdictions have. Appellant cites and relies upon the cases of Commonwealth v. Moore, 121 Ky. 97, 88 S. W. 1085, 2 L. R. A. (N. S.) 719, 123 Am. St. Rep. 189; Commonwealth v. Campbell, 89 Mass. 540, 83 Am. Dec. 705, and Butler v. Illinois, 125 Ill. 641, 18 N. E. 338, 1 L. R. A. 211, 8 Am. St. Rep. 423; the two last cited being cited in the Kentucky case. The principle in all three is the same, and is this: A attempts to rob B. B, while resisting the attempted robbery, shoots at A and accidentally kills 0 who is an innocent third party. A cannot be convicted of the murder of C. The reason for the rule in such a case is stated in the Kentucky case as follows: “In order that one may be guilty of a homicide, the act must be done by him actually or constructively, and that cannot be unless the crime be committed by his own hands or by the hands of some one acting in concert with him, or in furtherance of a common object or purpose.” We agree entirely with the principle announced in these cases, but cannot agree that the same principle is involved in this case. The facts are different. Here the robbers compelled Guthrie, over his objections and against his will to accompany them from a place of safety, so far as outsiders were concerned, to a place known by them to be a place of danger from those on the outside. They knew they had been discovered and apprehended danger from the outside, else they would not have taken Guthrie with them. They wished to use him as a breastwork, as it were, or they thought perhaps the outsiders would not shoot at them for fear of killing Guthrie. In doing this, they committed another crime, kidnapping, and caused Guthrie’s death. “A person,” says 29 C. J. 1077, “may be responsible for a homicide and guilty of murder, or manslaughter, according to the circumstances, in -whatever manner or whatever means the death was caused, provided it was caused by his unlawful act or omission.” Further on in the same section (54) it is said: “Defendant’s act or omission need not be the immediate cause of the death; he is responsible if the direct cause results naturally from his conduct.” Examples: exposing a helpless child to inclement weather ; forcing a sick and weak sailor to go aloft; causing one to jump from a moving train. Note 29 C. J. 1079. Directing a blind man in a direction so that he walks off a precipice.
The case most nearly in point that has been called to our attention is Taylor v. State, 11 Tex. Cr. Rep. 564, 55 S. W. 961. There, the robbers stopped a train to rob the express car. They forced one of the trainmen, the fireman, to take a stand in a place of danger, where he was accidentally shot by a passenger who appeared on the platform of another car and began firing at the robbers. The court held “that, since the death of the fireman was directly caused by accused and the other robbers in placing him in a dangerous place, accused was liable, whether the shot was actually fired by him or the passenger. ’ ’ This holding was followed in the later ease of Keaton v. State, 41 Tex. Cr. R. 621, 57 S. W. 1125, where Keaton, one of the trio of robbers with Taylor, was convicted of the same murder, which case was affirmed. The reasoning in these cases appears to us to be sound and unanswerable. The only difference between this case and those is that in this the robbers were using Guthrie as a breastwork in an attempt to escape, after having robbed the bank, whereas in the Texas cases they were using the fireman during the attempted robbery. This can make no difference, for the conspiracy to rob the bank had not been completed until they had made their escape. Clark v. State, 169 Ark. 717, 276 S. W. 849; Maxwell v. State, ante p. 111. Having forced Guthrie to accompany them in an attempt to escape, another felonious act, and having compelled him to take a known place of danger, as they had already been discovered by the marshal and others, they must abide the consequences of their unlawful act, although the result was not intended. As stated in Ringer v. State, 74 Ark. 262, 85 S. W. 410: “If the act he intended to do was criminal, then the law holds him responsible for what he did, even though such result was not intended.” In line with this is Gilmore v. State, 92 Ark. 205, 122 S. W. 493, where it was held that if “defendant struck deceased blows which caused him to fall from a wagon in which he was riding, so that a wheel of the wagon passed over his body and killed him, the jury were justified in finding that the blows were the cause of his death.” While these cases are not directly in point, they are persuasive, in the application of the principle here involved. Section 2339, Crawford & Moses ’ Digest, provides: ‘ ‘ The maimer of the killing is not material, further than it may show the disposition of mind, or the intent with which the act was contmitted. ’ ’ Appellant’s action in forcing Guthrie to a place which was known by him to be perilous was just as much the cause of his death as if he had himself fired the fatal shot. This action was murder at common law and is murder under the above statute.
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Smith, J.
' Appellant was convicted under an information charging Mm with having stolen 1,800 pounds of seed cotton from Mrs. I. B. Stewart on September 15,1939. The larceny was committed on the night of that date.
There were certain incriminating circumstances indicating that appellant had stolen the cotton. Explanations exculpating appellant were offered, which might have been accepted but for the testimony of Rogers Jack Joplin, who testified that he saw appellant loading the cotton in his truck. If this testimony is true, there can be no question but that appellant was the thief who stole the cotton.
In his defense appellant had attempted to prove an alibi, and in support of that defense offered testimony which, if true, would have made it impossible for him to have committed the larceny, as he was not in St. Francis county, where the crime was committed, at the time of its commission.
Appellant filed a motion for a new trial upon the ground of newly-discovered evidence. This motion was supported .by the affidavits of five witnesses which were attached to the motion, as required by the rule stated in the case of Rynes v. State, 99 Ark. 121, 137 S. W. 800, and alleged that appellant did not know of the existence of this testimony in time to have presented it at the trial, and that the testimony could not have been ascertained and obtained by reasonable diligence. The motion was accompanied also by the affidavit of appellant’s attorneys, showing affirmatively that they knew nothing of this newly-discovered evidence and could not, by any diligence, have discovered it. This newly-discovered evidence impeaches the testimony of Joplin, by showing’ that Joplin could not have seen appellant steal the cotton, for the reason that Joplin was.with affiants in Forrest City at the time when he said he saw appellant loading the cotton in his truck. In overruling the motion, the court found “that the newly-discovered evidence brought forward at this time is cumulative, and could have been ascertained by the defendant prior to his trial by the exercise of reasonable diligence.”
The practice to be pursued by trial courts in disposing of motions for new trials upon the ground of newly-discovered evidence lias been defined in numerous decisions of this court, and was re-stated in -the, recent case of Clements v. State, 199 Ark. 69, 133 S. W. 2d 844, and will not again be repeated.
It is thoroughly well settled that a new trial will not be awarded for newly-discovered evidence which is merely cumulative of other evidence offered at the trial. It follows, therefore, that the newly-discovered evidence of the five affiants would not suffice to require a new trial if their evidence tended only to sustain appellant’s plea of an alibi. In that event it would be cumulative of other testimony to that effect offered at the trial. But the evidence of these affiants is not of that character. There was no testimony, except that of Joplin alone, to the effect that, at the time when he saw appellant loading the cotton in the truck, he (Joplin) was at á place where he could have seen the larceny committed. Appellant had, at the time of his trial, no knowledge of the fact that at the time the larceny was committed Joplin was in Forrest City,- and .could not have seen what he testified he saw. Proof of the fact that Joplin was then in Forrest City is not cumulative of any testimony offered at the trial. Nor do we understand how, by reasonable diligence, this newly-discovered evidence could have been discovered before the trial. The larceny occurred in a populous community, and Forrest City is a thriving city of the second-class. Inquiry of every person appellant or his attorneys met, or had an opportunity to interview, might not have disclosed this newly-discovered evidence as to where — - not appellant, but Joplin — was at the time he (Joplin) claims to have seen the larceny committed.. And if it be true that appellant did not steal the cotton, he could not, by any possibility, have known the time when Joplin would testify that he saw the crime committed.
The testimony shows a long-standing and deep-seated enmity between appellant and Joplin; but proof of that fact would not be newly-discovered evidence. This was a fact which was known, and could have been, and, in fact, was proved, at the trial. But the testimony of the five affiants relates to a matter of newly-discov ered evidence which, no reasonable diligence could have discovered before the trial.
"We conclude, therefore, that a new trial should have been granted on account of this newly-discovered evidence; and for the error committed in refusing to grant that motion the judgment will he reversed and a new trial ordered. | [
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Humphreys, J.
On April 20, 1934, appellant herein recovered a judgment against Guy A. Thompson, trustee of the Missouri Pacific Railroad Company of $22,500 for his client, appellee herein, on account of personal injuries to his client, in the United States district court of the western district of Arkansas, El Dorado division.
Under a reorganization proceeding against said railroad company in the United States district court for the eastern judicial district for Missouri this judgment or claim, filed in said court was given priority as operating expenses of the trustee, and he, as trustee of said railroad company, was directed to pay said claim or judgment to H. C. Siratt, appellee herein, which then amounted to $27,900 including interest plus $200.05 cost.
Appellant herein was claiming an interest in said judgment and lien thereon and parties to whom he had assigned certain interests in the judgments were claiming interests therein, and parties to whom appellee herein had assigned certain interests in the judgment were claiming interests therein, and certain physicians were claiming liens thereon, so Guy A. Thompson, trustee for the Missouri Pacific Railroad Company, debtor, filed a hill of interpleader in the chancery court of Pulaski county making all the claimants to interests in the .judgment parties defendant and depositing the amount of the judgment, interest and cost in the registry of the court, alleging that he, as trustee, was unable to determine the amount, if any, due each claimant out of the judgment, and praying that said defendant be required to answer and establish their respective claims.
Various interventions and responses were filed and among them interventions of appellant and appellee herein were filed together with the responses to each others ’ intervention.
All interventions were adjudicated and settled except the issues joined between appellant and appellee herein growing out of their respective interventions and responses which were later heard and determined by the trial court, resulting in a finding and decree in favor of appellant, to the effect that appellee OAved appellant $912.50 for one-half of all the expenses appellant had paid and incurred in prosecuting appellee’s suit for damages against said trustee for said railroad company, and for $700 appellant loaned appellee during the pendency and trial of the damage suit. The interventions of appellant and appellee and their responses filed by each joined issue between them as to whether appellant loaned appellee $2,641.50 or only $700 during the pendency and trial of the damage suit, and Avhether, under the contract of employment, appellee owed appellant $912.50 or any part thereof for one-half of the cost including witness fees of experts who testified in the trial of the case for appellee.
The testimony introduced responsive to these issues is very voluminous and in sharp conflict. The court in the trial de novo of the case on appeal has carefully read and analyzed the evidence and have concluded that the finding of the chancery court on each issue is not contrary to a clear preponderance of the evidence. It could serve no useful purpose as a precedent to set out herein the substance of the testimony of each witness and to do so would extend this opinion to an unusual length.
It may be said in passing that no receipts, except perhaps one or two, and nó canceled checks were introduced by appellant showing loans made by him to ap-pellee. Appellant testified that he took no receipts for actual money except one or two, and appellee and his wife testified that they never received any money unless they receipted for it.
After the testimony was closed, and on the following morning before the case was submitted appellant introduced six or seven sheets taken from a book he said he kept himself showing the amounts he loaned appel-lee, and the dates thereof, over the objection of appellee, but the book out of AVhich the sheets were taken was not introduced. Tie book itself would have been tie best evidence as to original entries and should have been introduced if relied upon as original entries of tie items claimed to have been loaned. Tie sheets were nothing more than memoranda which appellant might have used to refresh his memory in testifying, and could not have been used as original entries either as original testimony or testimony in corroboration of the statements of appellant. The transactions testified to covered a long-period of time, some six or seven years, and without the aid of a book showing original entries of the amounts loaned and the dates thereof, and without the aid of canceled checks or receipts the record discloses nothing more than the recollection or memory of appellant and appel-lee as to the various amounts loaned. In this condition of the record, as stated above, a majority of the court have concluded that the finding and decree of the chancellor is not contrary to the weight of the evidence.
Mr. Justice Mehaffy and the writer are of opinion that a preponderance of the testimony reflects that appellant loaned appellee $2,641.50.
No error appearing the judgment is affirmed on appeal and cross-appeal. | [
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Griffin Smith, C. J.
Lands belonging to H. E. Cockerham, J. W. 'Brown, and A. J. Gregory were condemned for highway purposes August 5, 1940, by order of the Ashley county court. The state highway commission was petitioner. Other lands not involved in this controversy were included in the judgment of condemnation.
October 24, 1940, Cockerham, Brown, and Gregory presented separate claims for compensation. The county court order in each case is: “Disallowed for reason of insufficient funds from any and all sources with which to pay said claims.”
Claimants applied to chancery court. Injunctions were issued November 18. Prayers of the complaints were that Ashley county “or any person” be restrained from entering the property.
The highway commission has asked this court to prohibit the chancery court from issuing any order interfering with the rights it claims to have under the county court judgment.
Three propositions are presented. First, it is insisted the decree is void because the highway commission, being (as it is alleged) a necessary party, was not served with process. Second. It is urged that the county court judgment is not subject to review by the chancery court. Third. It is urged that the decree is in response to a collateral attack on the judgment of the county court, and since error does not appear on the face of the record, the chancellor was without power to enjoin.
First. — We do not think act 147, approved February 17, 1859, is applicable. In Sloan v. Lawrence County, 134 Ark. 121, 203 S. W. 260, it was held that act 422 of 1911 was constitutional; that the power of eminent domain may be exercised by the state without notice to the interested landowner, and that in condemning property for highway purposes a hearing upon the question of necessity is not essential. The holding was reaffirmed in Crawford County v. Simmons, 175 Ark. 1051, 1 S. W. 2d 561. Effect of these opinions is to say that the action to condemn is a proceeding in rem. In this view of the case the chancery court of the county in which the property was had jurisdiction to restrain all persons from trespassing upon or appropriating it.
Second. — Petitioner concedes that the chancery court had jurisdiction of the subject-matter, but thinks that in the absence of error on the face of the record in county court remedy of the landowners was by appeal to circuit court, and that in the special circumstances shown the chancery court was without power to issue the order. This was decided adversely to petitioner’s contentions in Independence County v. Lester, 173 Ark. 796, 293 S. W. 743.
Third. — It is finally argued that the injunction is predicated upon a collateral attack on the judgment of the county court. We do not agree that it was. We think, however, that the decree goes beyond what the court intended. Apparently it holds that the county court judgment was void. This case is distinguishable from Independence County v. Lester. There it was said:
“Under the facts of the record it appears that the county court has condemned appellee’s land and is proceeding to appropriate same for a state highway without providing any compensation to' appellee for damages, and it appears that the county court claims that it has no authority to make such compensation [because revenues were exhausted]. If so, as already stated, it had no power to condemn, and its order to that effect is absolutely void. Therefore it is obvious that the county court and all those who claim to be acting under authority of such order, in appropriating and using appellee’s land for a highway, are doing so without any right whatever. ’ ’
In the statement of facts it is said: “The county court, according to the pleadings and the agreed statement of facts in the record, had condemned, and the county judge was proceeding to use, appellee’s land for a highway, and, at the same time refused to allow ap-pellee’s claim for compensation on the ground that the court was without authority to allow the claim because the fiscal year had expired and the revenues were exhausted. ’ ’
It will be observed that the opinion states there was condemnation when the facts showed that “at the same time”, there was refusal to pay.. Certainly the court had no right to condemn and at the same time disallow compensation for the reason stated.
The petition will be treated as an appeal and the order will be that the court’s action in granting the in junctions is affirmed, but the construction (given the finding of the chancery court that the county court judgment was void) will be that under the decree those enjoined can not take the land until appellees have been compensated.
Section 55 of act 65, approved February 28, 1929, and act 422, approved May 31, 1911, as amended by act 611, approved March 23, 1923. Pope’s Digest, §§ 6905 and 6968.
Pope’s Digest, § 8194, provides: “All judgments, orders, sentences, and decrees made, rendered or pronounced by any of the courts of the state against any one without notice, actual or constructive, and all proceedings had under such judgments, orders, sentences or decrees, shall be absolutely null and void.”
Section 55 of act 65 of 1929, copied from § 69 of act 5, approved October 10, 1923 (Pope’s Digest, § 6905), directs how the highway commission shall proceed in changing or widening any state highway. There is reference to § 5249 of Crawford & Moses’ Digest. (The Crawford & Moses’ section is act 422, approved May 31, 1911, p. 364.) Act 422 of 1911 was amended by act 611, approved March 23, 1923. Forty-six counties were excluded from its provisions. In Casey v. Douglas, 173 Ark. 641, 296 S. W. 705, the amendment of 1923 is referred to as follows: “The amending statute included all that part of the old statute that was to become the law under the amendment, but from its provisions were expressly excepted Benton and other counties of the state, which necessarily had effect, according to the majority opinion, to leave the law, so far as relates to Benton and the other counties excepted from the terms of the amending statute as provided in § 5249, and as though no amendment to said section had been made, since it is expressly provided that such ■ amendment shall not relate to the excepted counties.” [Ashley county was not excepted.]
Italics supplied. | [
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GrieeiN Smith, C. J.
In consequence of embezzle-ments aggregating more than twenty thousand dollars which occurred in the office of Sheriff and Collector L. B. Branch, Edgar Collins and Charles McNutt, deputies, were indicted. Collins was convicted on five counts. On appeal the judgments were affirmed. Collins v. State, 200 Ark. 1027, 143 S. W. 2d 1. McNutt was convicted on three counts and sentenced on each to serve five years in the penitentiary, the sentences to run concurrently.
The appeal questions sufficiency of the evidence. It also alleges that reversible error was committed in denying the defendant the right to examine an audit report compiled by Joe Bond, certified public accountant. This is the same report that featured in the Collins Case. It was there said that the court was mistaken when it ruled that the report was not a public document ; but it was further held that the error was waived.
In the case at bar there was no waiver, and appellant should have had access to the report. However, there is this stipulation:
“At the commencement of the trial all books and records of the sheriff and collector’s office are present and exhibited in open court for the inspection of the defendant and his counsel.”
Prior to the trial the Bond audit report had been in possession of the prosecuting attorney for some time, and the defendant unsuccessfully moved to require its surrender for inspection purposes.
In response to defendant’s motion the state filed a hill of particulars.
While in this case, as in the Collins Case, we are of the opinion that the court erred in not permitting the defendant to have access to the audit report when the accountant was being cross-examined, it is difficult to see how prejudice resulted, in view of the fact that all original records from which the audit was compiled were before the court, accessible alike to the state and to the defendant. There are hundreds of exhibits in the hill of exceptions, including cancelled checks, bank deposit slips, bank statements, departmental reports, the original claim filed with the county by Collins for $144.05 in favor of the sheriff covering' “expense of returning prisoners, as per receipts attached,” and other primary matters — all of which constituted a part of the original record. That use was made of them is attested by their presence in the record. They substantiate the state’s contention. This being true, the defendant was not prejudiced.
We think the evidence was substantial, and therefore the question whether appellant was guilty was for the jury.
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Kirby, J.,
(after stating the facts). There are numerous assignments of error, a few of which only are insisted upon here, and fewer still necessary to he considered under our determination of the matters in question.
The undisputed testimony shows that the replevin suits were brought for the property in an attempt to foreclose the mortgage thereon, under the terms of which was still due the appellant from Thompson, the mortgagor, $15,858.74. The jury found the issue in favor of Thompson, the mortgagor, fixing the value of the property replevined at the amount for which it was sold by the mortgagee, $5,298.30, and allowed $1,000 damages for the detention thereof. This was evidently done under its finding" that appellant had breached his agreement to lease his plantation to Thompson for the year 1928 and extend the time for the payment of the balance due under the mortgage accordingly, and, as already said, there is some substantial testimony in support of this finding, which cannot therefore be disturbed, without regard to the weight of the testimony thereon.
There is no merit in appellant’s contention that the court erred in refusing to give his requested instruction No. 1, relative to the alleged oral contract for the rent of the place for the year 1928 being within the statute of frauds. It is true such oral contract was made in December, 1927, before, but it was for the lease of the place for the year 1928. An oral contract for the lease of lands for one year, to commence at a date subsequent to the making thereof, is not within the statute of frauds. Alexander-Amberg Co. v. Hollis, 115 Ark. 589, 171 S. W. 915.
Neither could the entry into an entirely new contract by the parties for the lease of the lands for another year be regarded as without consideration, under the circumstances, even though appellee made payment of $2,800 of an indebtedness which he was. already bound for in consideration thereof. If appellant derived no profit from the agreement, it would suffice if appellee, to whom the promise was made, suffered some detriment or disadvantage on account of it, which appears to have been the case. Morgan v. Shackleford, 174 Ark. 341, 295 S. W. 46; Nothwang v. Harrison, 126 Ark. 548, 191 S. W. 2; Green v. Hollingshead, 172 Ark. 578, 290 S. W. 51; Engleman v. Brisco, 172 Ark. 1088, 291 S. W. 795.
The court erred, however, in disregarding the undisputed testimony in the case and appellant’s, prayer for a judgment for the balance conceded to be due under his mortgage, which he was entitled to recover under the pleadings and prayer therefor, less any amount to which appellee could have shown himself entitled, under his claim to the right of possession of the property and damages for the detention thereof. The jury has found such amount to be as already set out, and the court should have entered judgment for appellant for the amount of the balance of the appellee’s indebtedness to him under the mortgage, less the amount found to be due appellee for the value- of the property replevined and the damages for its unlawful detention. Brunswick-Balke-Collender v. Culberson, 178 Ark. 957, 12 S. W. (2d) 903.
The judgment must accordingly be reversed, and, the case having been fully developed, judgment will be rendered here in appellant’s favor for said balance due, in accordance with this opinion. It is so ordered.
In the case against appellee Farnsworth-Evans Company, as already stated, there was substantial testimony supporting the jury’s finding that Thompson was author ized to make the sale of the cotton. Neither is there any merit in appellant’s contention that the court erred in giving appellee’s requested instruction No. 8, as follows:
“You are instructed that, in arriving at whether or not plaintiff authorized or consented for Thompson to sell the cotton from plaintiff’s farm, you may take into consideration all the facts and circumstances in evidence, including the conduct, acts and statements of the parties had and made in reference thereto. ’ ’
In Beekman Lumber Company v. Kittrell, 80 Ark. 228, 96 S. W. 988, the court said:
“It is true that, in an action against principal, the declarations or admissions, of the agent are not competent to prove the agency; hut this rule does not refer to the testimony of the agent, hut to his unsworn declarations. An agency may he established by the testimony of an agent, as well as that of any other witness who has knowledge of the facts.”
See also Ayer-Lord Tie Company v. Young, 90 Ark. 106, 117 S. W. 1080; Concordia Ins. Co. v. Mitchell, 122 Ark. 357, 183 S. W. 770; Pine Bluf Heading Co. v. Bock, 163 Ark. 237, 259 S. W. 408; Oil City Iron Works v. Bradley, 171 Ark. 45, 283 S. W. 362; Southern Bauxite Co. v. Brown-Pearson Co., 172 Ark. 117, 288 S. W. 377; General Motors v. Salter, 172 Ark. 691, 290 S. W. 584.
Neither was error committed in striking out of appellant’s requested instruction No. 1 the words “and received the proceeds from such sale,” the instruction having told the jury that the value of the cotton may be recovered by. the plaintiff, unless he authorized Thompson to sell the same and received the proceeds from such sale. The court told the jury, in appellee’s requested instruction No. 1, that if they found from a preponderance of the evidence that the plaintiff “authorized and consented for the defendant Thompson to market and collect for the cotton, they would find for the defendant. ’ ’ This instruction is not in conflict with the instructions complained of, given as amended, and, if so, could not have been prejudicial to appellant.
If Thompson had the authority to sell the cotton of which he was in possession, as the jury found he had, it necessarily included the right to receive the sale price, regardless of his appropriation thereof. There is no question here of the indorsement ¡by Thompson of a check drawn in favor of appellant, given in payment for the cotton, and the authorities relied upon in such case are not in point.
We find no reversible error in the record in this case, and the judgment will he affirmed. It is. so ordered. | [
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• Griffin Smith, C. J.
J. W. Myers Commission Company shipped from Van Burén, Arkansas, to appellee, Grace Cox, at Waterloo, Iowa, a mixed car of cabbage and beans, billed at $460. Mrs. Cox protested that, as to the cabbage,-quality was deficient, and she declined to pay the agreed price of $1 per hundred pounds. When the bill of lading was .not honored, the railroad company sold the shipment for $186 and applied proceeds as credit on freight charges of $225. An advance payment of $50 had been made to appellant in June, 1937, at the time the contract of purchase and sale was consummated.
December 28, 1937, the' commission company filed suit in Crawford circuit court. Service was had by attaching a truck and 100 sacks of potatoes then in possession of Walter Williams. Williams intervened, claiming the potatoes. He asked damage compensation of $150. There was an agreement February 12,1938, that the truck belonged to R. & S. Motor Sales Company. It was released. March 5 Mrs. Cox filed an answer and cross-complaint, alleging damages of $150 for breach of the sales contract, $800 for wrongful attachment, and asked that the initial payment of $50 be refunded.
March 25, 1938, the commission company amended its complaint by alleging that Mrs. Cox and Williams were partners. The following day Mrs. Cox and Williams were awarded judgments for $75 and $110, respectively, in consequence of jury verdicts. The commission company has appealed.
In its motion for a new trial appellant alleges: (1) That the court erred in permitting Mrs. Cox to testify that “the reasonable usable value of the truck was $10 per day for 36 days.” (2) That error was committed in permitting Mrs. Cox to testify that she lost six days of time and was compelled to spend $i0 in coming to Van Burén to attend trial. (3) That the court erred in giving certain instructions. (4) That it was error to permit Mrs. Cox to testify thát she lost three days' time, with her truck, valued at $10 per day, at Waterloo, Iowa, on account of appellant’s action in shipping the below-quality produce. (5) That the court erred in permitting Mrs. Cox to testify that “if the car of cabbage and beans had arrived at Waterloo, la., in good condition and of No. 1 grade as per sales contract [with the plaintiff], she could have sold the same for a profit of $200.”
June 7 appellant wired Mrs. Cox at Waterloo' that shipment had been made the previous day. Mrs. Cox. telegraphed on the 8th, complaining of quality and condition. She closed her telegram by offering to ‘ ‘ accept at seventy-five cwt,” and requested answer by Western Union immediately. Appellant replied on the 8th, saying the shipment had been loaded under government supervision, and added: “If you will not accept ‘as is,’ we will call on department of agriculture to investigate.” On the 9th Mrs. Cox replied: “Cabbage terrible. Cannot accept. Go ahead with investigation. Reply Western Union.” On the 9th appellant wired: “Reducing draft to confirm your wire yesterday seventy-five cents hundred. ” A telegram from Mrs. Cox to appellant dated the 9th reads: “Cabbage deteriorating fast. Only inspector here WWIB. Get your inspector; I am through. ’ ’
Piling time of the telegrams — that is, the hour of day — is not shown. On cross-examination Mrs. Cox testified that after making an inspection she wired the commission company offering to accept the cabbage at seventy-five cents per hundred pounds. The transcript shows :• [Mrs: Cox] “admitted that she received a wire from the plaintiff on June 9, agreeing, to reduce the draft to 75 cents per cWt, but by that time [I] had mtide up [my] mind not to have anything further to do with’it, and refused to handle beans or cabbage at any price. ’ ’
First. The appellee, Cox, failed to show that appellant’s telegram consenting to a reduction in price was not received while her offer was outstanding; nor did she show that appellant’s acceptance, which she requested by telegraph, was not sent within a reasonable time. Her offer to waive alleged deficiencies in quality, and deterioration, was transmitted June 8. It'is true appellant’s first message was not an acceptánce, but it did contain a .proposal to have the department of agriculture make an investigation. Mrs. Cox sent another message on the 8th (presumably later in the day), making a seventy-five cents per hundred offer. On the 9th the offer was accepted. Mrs. Cox’ telegram of the 9th is not free from ambiguity. She said: ‘‘Only inspector here WWIP. Gret your inspector; I am through.” Whether she meant to say her offer of seventy-five cents was -withdrawn, or whether the expression “I am through” had reference to procurement by her of an inspector, there is some doubt.
In view of the relationship of the parties and the advantage Mrs. Cox had in being where she could personally inspect the shipment,’ we conclude that even if she intended her telegram of the 9th to be a withdrawal of the seventy-five cent offer, it was ineffective because of appellant’s reasonable promptness in wiring an acceptance. At the time Mrs. Cox made her offer, the' freight charges had accrued, and she knew or should have known what they were. The shipment was made f. o. b. Van Burén, and any deterioration occurring during transit would constitute a claim to be pressed by Mrs. Cox.
Since construction of the contract (which is a question of law) determines liability or non-liability of Mrs. Cox, we conclude that the court erred in submitting this question to the jury. The judgment for $75 in favor of Mrs. Cox is reversed. Testimony of appellant that the balance due was $285, after allowing for initial payment of $50, credit of approximately $136 on freight as a consequence of distress sale of the produce, etc., is not contradicted. Therefore, judgment is given here for $285 against Mrs. Cox and in favor of appellant.
Second'. There was substantial evidence from which the jury could find that Williams, in purchasing the potatoes, acted' in his own behalf. While it is improbable that this is true, nevertheless we cannot say that such finding was not supported by the quantum of testimony essential to a determination of that question.
Because of the perishable nature of the potatoes, appellant petitioned the court for authority to sell them. The record.does not show what action the court took with reference to the petition, but the attached property was delivered to appellant, and it is presumed the potatoes were disposed of in due course.
Instruction No. 3, given at the request of Williams, was erroneous, and prejudicial. If Williams owned the potatoes, the only damages recoverable by him was the market value, there being no evidence that they were purchased for a special purpose known to the appellant. The first sentence of the instruction is correct, but it was improper to add, “Also he is entitled to such damages as he has sustained because of such attachment.” The only evidence tending to show additional damages was Williams’ testimony that he ivas compelled to make several trips to Van Burén, and that ho had lost lots of time.
In Goodbar et al. v. Lindsley, 51 Ark. 380, 11 S. W. 577, 14 Am. St. Rep. 54, this court said: “Expenses incurred by a defendant in attachment in prosecuting his own suit for damages must be borne by himself, the same as expenses are borne by others who become actors in the court to right their wrongs.”
If Williams owned the potatoes (and the jury found that he did), it was incumbent upon him, in alleging damages additional to the market price of the potatoes, to show what these damages were. By adding to the instruction the ivord “also,” and the sentence of which it was a. part, the jury was permitted to speculate as to matters not established by proof. Because of this error the judgment in favor of Williams is reversed, and the cause is remanded for a new trial.
Mrs. C'ox was in Van Burén the night the potatoes and truck were attached. She had been in company with Williams and two other men. Williams testified that when they got to the garage after the writ of attachment had been served, Mrs. Cox claimed the potatoes. He also testified that he had been in the Imperial Valley [of California] where he bought tomatoes and other perishable commodities. He admitted that Mrs. Cox brought such produce to Joplin in her truck, where he (Williams) sold it, and “with the money [I] obtained therefor, and with some money that [I] had saved, [I] bought the potatoes in question from M. L. Miller, and paid for them with [my] own money. Grace Cox had nothing- to do with the purchase or paying- for the potatoes, [and] had no interest in them whatever.”
Instruction No. 3 reads as follows: “If you find for the inter-vener, then you should find the market value of the potatoes when attached and your verdict should reflect that sum in favor of the in-tervener. Also he is entitled to such damages as he has sustained because of such attachment, if it was wrongfully sued out, and his property so taken, if any.” | [
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GrPJpuiN Smith, C. J.
Judgments aggregating $12,125 to compensate personal injuries sustained by Adeline Phillips, Kathleen Williams, and Fitzhugh Brunson, were returned on jury verdicts against Arthur Moore, Allen King, and Chicago Mill & Lumber Company, the latter a corporation.
It is alleged that Moore and King were .employees of the corporation; that in April, 1937, the three’ plaintiffs, mentioned supra, were in an automobile driven by Brunson; that a truck belonging to Moore and driven by King, with whom Moore was riding, collided with the Brunson car; that the three plaintiffs were severely and permanently injured, and that at the time the accident occurred Moore and King were engaged in a mission for Chicago Mill & Lumber Company.
There is a great deal of testimony explaining how the accident occurred, much of which is in conflict. There were questions of fact for the jury’s consideration, presented under proper instructions as to Moore and King, and the judgments against them are affirmed.
As to the Chicago Mill & Lumber Company, the situation is different. In 1934 Arthur Moore, who had previously lived at Vicksburg, Mississippi, moved to a. farm near "West Helena, Arkansas. For many years he had been engaged in the timber business, principally as a logging contractor. After going to West Helena, he executed various contracts with Howe Brothers Lumber Company and Shannon Lumber Company, under which he cut and delivered tiipber from lands owned by the corporations. There is no evidence contradicting his testimony that in the execution of such. contracts. ho owned and furnished the material and equipment and employed the necessary labor. Prior to execution of the contract here involved, he had performed for the Company under only one contract in 1934, later moving some 25,000 feet for the Company, but under verbal agreement. He was also engaged in the business of buying timber and selling logs to various mills.
February 20, 1937, the Company purchased from Mrs. Sallie M. Erwin the standing timber on 340 acres of land in Drew county, the time for removal thereof being restricted to two years. April 3, 1937, the Company and Moore entered into a written contract under which, for a compensation of $10 per thousand feet, Moore agreed to cut, transport and deliver the standing timber to the right-of-way of the Missouri Pacific Rail road at Monticello. There is no evidence tending to question execution of the contract, or good faith of the parties. To the contrary, it is shown that from April 3 to April 23, Moore was engaged in executing the work contemplated by the contract. Original ledger sheets, showing the account of Moore with the Company from March 1, 1937, to April 3, 1937, as well as other original records and entries thereon — all of which were made prior to April 23 — were introduced in evidence.
These records reflected ^ that on April 9 settlement was had between Moore and the Company, in accord with terms of the contract, for 6,783 feet of logs. April 23 á like settlement, covering 22,035 feet of logs, was had. The record further shows that Moore lived on a farm containing 60 acres, which was “clear,” some five miles distant from the plant of the Company in West Helena; that he was the owner of a truck and trailer, and a tractor, although the Company had advanced him some money and had taken a mortgage; that he owned log wagons, mules, and various other camp property, and that he transported this equipment to the lands and established a camp thereon. He took with him laborers then regularly in his employ, and at a later date hired log laborers, some of whom were employed by him to cut timber “by the thousand.” He also employed persons owning trucks to transport the timber to Monticello. Settlements were made with his labor at bi-weekly periods, and up to June, 1937, payments were made by Moore from his own funds. Thereafter, laborers were paid by the “woods foreman”. of the Company, Cox, but on payrolls made out by Moore, and at his direction, and receipts taken from ,:each employee were introduced in evidence, showing performance of labor on “Arthur Moore’s job.”
Moore customarily returned to his home near West Helena on Friday preceding alternate Saturdays, to procure settlement with the Company for the amount due him under the contract. The bases for such settlements were “scale sheets” forwarded the Company by Cox.
In the execution of his contract, and in going to and from the land, Moore used a pick-up Ford truck, the . state license to which, was in his name. April 23, 1937, he left camp in this truck, accompanied by one of his employees, Allen King, a tractor driver. He started from Monticello for West Helena to effect settlement for logs hauled during the preceding bi-weekly period. While on his way home the accident complained of occurred. Allegations that Moore and King were servants of the Company were met with the answer that Moore was an independent contractor; that neither Moore nor King was, or ever had been, employees of the Company. The contract between Moore and the Company was filed as an exhibit to the answer. There was no substantial proof to show that the contract was colorable, nor were there any allegations or proof that it was not bona fide. Plaintiffs contended only that phraseology of the contract, by reason of provisions relating to control and direction of operations, created the relation of master and servant, rather than owner and contractor; and that the Company had by conduct subsequent to the execution of the contract destroyed the relation of owner and contractor, if the contract did in law create such relation, and thereby created the relation of master and servant.
The case may be disposed of by a determination of two principal questions: (1) Does the contract between Moore and the Company, standing* alone, create the relationship of owner and contractor? (2) If it be held that the contract did make Moore an independent contractor, is the evidence adduced by plaintiffs sufficient to show that the parties, by subsequent conduct, abandoned this contractual relation and substituted in lieu thereof the relation of master and servant?
If the first question be affirmatively answered, and the second one be answered in the negative, it necessarily follows that the Company would not be under any liability to plaintiffs. Correct determination of the first question necessarily involves consideration of the contract.
Preliminary to the contractual terms, it is first stated that the Company and the ‘ ‘ contractor ’ ’ have ‘ ‘ reached an agreement for the cutting, hauling and delivery of the timber.” Tbe land on which it is situate is described; point of delivery is fixed; and the contractor was obligated to “actively begin work . . . within ten days . . . and continuously and diligently prosecute the work so as to complete the delivery of all the timber by the first day of July, 1937.”
Section 1 provided that the contractor “. . . has or will provide at his own expense all the teams, logging equipment, labor, etc., necessary to reasonably guarantee .the prompt and faithful cutting, hauling and delivery of all or any part of the timber and logs, within the time provided; and keep the timber and logs free from all. liens or claims for labor or otherwise; and the corporation may require the contractor to reasonably satisfy it in that behalf before making any payment to him as herein provided.”
Section 2 required the contractor to confine operations to such subdivisions as the corporation should direct. It further required him to cut arid remove the timber from such subdivision most remote from delivery point. The particular subdivision on which the contractor “shall begin operations” was to be “as directed” by the Company.
Under Section 3 the corporation retained the power to “direct” as to the species to be cut and removed.
Section 4 provided that the timber should be cut in a careful and workmanlike manner, “as may be directed and changed in writing from time to time by the corporation,” and that the full product of the tree should be obtained and logs cut to the best advantage in standard lengths.
Section 5 required delivery of the logs in a reasonable time and fixes a penalty on the contractor for default in this respect.
Section 6 required delivery of the logs within fifty feet of the loading equipment on track at Monticello; and the dumping grounds were to be prepared by contractor “at his own expense.” If logs were lost or damaged, the contractor is held liable thereof.
Section 7 provided for measurement of logs delivered and bi-weekly statements therefor, on inspection and measurement by an agent of the Company. Contractor was to be furnished with a duplicate tally of logs scaled, which, without objection, was made final basis of settlement.
Section 8 covered the price per thousand feet to be paid contractor “for all logs delivered,” but 10 per cent, of the contract price was to be retained until the contract was completely performed, and upon breach by the contractor, the amount retained was to be held by the corporation as liquidated damages. This section further provided: “In addition to the 10 per cent, retention to guarantee the performance of this contract by the contractor, the corporation shall also retain and deduct any amount which the contractor may owe it on any account whatever, including all amounts due it on account of the failure of the contractor, or his employees, to properly cut and log up the timber, or to promptly haul and deliver the same.”
Under Section 9 the parties agreed that the Company mig’ht either permanently discontinue, or temporarily suspend, cutting and delivery of the timber.
By a long line of decisions this court is committed to the universal rule, that where the contractor is to produce a certain result, according to specific and definite contractual directions, agreed upon and made a part of the contract, and the duty of the contractor is to produce the net result by means and methods of his own choice, and the owner is not concerned with the physical conduct of either the contractor or his employees, then the contract does not create the relation of master, and servant. This court has consistently accepted and stated the settled rule that even though control and direction be retained by the owner, the relation of master and servant is not thereby created unless such control and direction relate to the physical conduct of the.contractor in the performance of the work with respect to the de: tails thereof. St. Louis, I. M. & S. Ry. v. Gillihan, 77 Ark. 551, 92 S. W. 793; Moore Lumber Co. v. Starrett, 170 Ark. 92, 279 S. W. 4.
In the Grillihan Case, Mr. Justice Hart said: “In general, it may be said that the liability of the company depends upon whether or not it has retained control and direction of the work. But neither the reservation of the power to terminate the contract when in the discretion of the engineer the work is not progressing satisfactorily, the right to exercise general supervision and inspect the work as it progresses, nor the right to enforce forfeitures, will chang'e the relations so as to render the company liable.”
In the Starrett Case, Mr. Justice Wood defined an independent contractor as “One who contracts to do a piece of work according to his own method and without being subject to the control of his employer, except as to the result of the work.”
Again, having under' consideration a contract strikingly similar to the one here involved, as well as evidence also strikingly similar to that with which we are dealing, it was further said: “Now, under the above definition, according to the plain provisions of the written contract, the relation as between the company and Fleetwood at the time of the injury to appellee, was that of independent contractor rather than that of master and servant.” . ' j .
There is nothing in the contract showing an intent upon the part of the Company to retain control or direction, of Moore in the exercise of the means or method by which he should perform the contract. There is no direction relating to the physical conduct of Moore, or his employees, in the execution of such contract. True it is there are certain directions to be observed by the contractor in the cutting of the timber, especially as to place and dimension; but these are specific and definite and are similar to plans and specifications so often found in contracts covering the performance of labor of similar character. Their design is to produce a given result. There are many decisions of this court holding to this effect. The governing distinction is that if control of the work reserved by the employer is control not only of the result, but also of the means and manner of the performance, then the relation of master and servant necessarily follows. On the other hand, if control of the means he lacking, and the owner does not undertake to direct the man,ner in which the employee shall work in the discharge of his duties, then the relation of independent contractor exists. St. L., I. M. & S. Ry. v. Cooper, 111 Ark. 91, 163 S. W. 160; Ark. Land & Lbr. Co. v. Secrist, 118 Ark. 561, 177 S. W. 37; Harger v. Harger, 144 Ark. 375, 222 S. W. 736; Harkins v. National Handle Co., 159 Ark. 15, 250 S. W. 900.
In the Harkins Case it was árgued that because the Company reserved the right to control the kind, quality and quantity of the output, according to specifications and prices submitted, and because the right to cancel the lease and take possession of the property was reserved, and because the Company advanced money to meet pay rolls, which were made out on the Company’s pay roll forms, the relation of master and servant was established. The opinion says: “None of the reservations by the lessor in the lease, . . . and none of the circumstances proven outside of the contract are inconsistent with the relationship of lessor and lessee. . . . Rodgers (the contractor) employed his own labor, bought his own material* and conducted the business according to his own methods. The handle company had no interest save in the output which it had purchased. ’ ’
Our latest decision involving questions similar to those here presented is Farmer Stave & Heading Co. v. Whorton, 193 Ark. 708, 102 S. W. 2d 79. The opinion was written in 1937 by Mr. Justice Butler. The contract, under which it was alleged that Whorton became an independent contractor, rather than a servant of Parmer, was an oral one. The jury and trial court had found and held the evidence adduced sufficient to show that Whorton was a servant rather than, an independent contractor.
The supervision and control proven in the Whorton Case were stated by Mr. Justice .'Butler in the following language: “Parmer furnished Whorton a mill and money to operate and gave him a certain price for the heading delivered on board cars; that he, or someone else for the company, would go out to the mill occasionally to see how Whorton was getting along and to see that the heading was manufactured properly; that his company did not directly or indirectly exercise any control or supervision over Whorton further than to see that the heading was sawed according to specifications.”
No vital distinction can he drawn between the control and supervision in the cited case and that reserved by the Company under the contract involved in the instant case.
There are countless decisions of appellate courts construing stipulations in contracts, such as here involved, relating to the right of the owner “to give directions”— “orders” and “instructions” regarding the work as it progresses; and phrases such as “in accordance with instructions” — “as directed” — “in such manner as shall be directed” — “under supervision of owner’s agent, as he may direct” — and “under the direction and supervision.” In all of the cases examined, some of which are cited, it is held that such phrases do not relate to the method or manner and do not govern the details or the physical means by which the work is to be performed. The Supreme Court of the United States has so held in two cases directly in point. Casement v. Brown, 148 U. S. 615, 13 S. Ct. 672, 37 L. Ed. 582; U. S. v. Driscoll, 96 U. S. 421, 24 L. Ed. 847.
In the Brown Case the contract provided that the work should be done in the most thorough, substantial and workmanlike manner “under the direction and supervision of .the engineer of the company, who will- give such- directions from time to time during the construction of the work as may appear to him necessary and proper to make the work complete in all respects. ’ ’ Mr. Justice Brewer said: “The will of the company was represented only in the result of the work, and not in the means by which it was accomplished. This gave to the defendants the status of independent contractors, and that status was not affected by the fact that, instead of waiting until the close of the work for acceptance by the engineer, the contract provided for daily supervision and approval of both material and work. . . . This constant right of supervision, and this continuing duty of satisfying the judgment of the engineer, do not alter the fact that it was a contract to do particular work, and in accordance with plans and specifications already prepared. They did not agree to enter generally into the service of the company, and do whatever their employers called upon them to do, but they contracted for only a specific work.”
In the Driscoll Case the contractor was required “to furnish all labor, tools and machinery necessary to cut, dress and box certain granite, in such manner as should be directed.” The contract provided that the United States should keep present at all times a superintendent and clerk — “to see that everything was done according to the contract.”" It was held that the relation of independent contractor existed.
Gay v. Roanoke R. & Lbr. Co., 148 N. C. 336, 62 S. E. 436, involved a contract for the cutting and transportation' of logs, similar to the one in the case at bar. The logs were to be cut and loaded on railroad .cars, “in a proper manner, the logs being secured to stand transportation, and the loading to be done according to directions given. ’ ’ There was a further provision that the contractor should “cut the timber in proper and workmanlike manner, and as' close as the employer may direct, and to cut all and every suitable tree into log's before leaving any one location. ’ ’ The court held that neither of these provisions negatived the relation of owner and contractor.
In Stricker v. Industrial Commission, 55 Utah 603, 188 Pac. 849, 19 A. L. R. 1159, the contract required that the ‘ ‘ rock should be quarried from such portions of the' company’s rock quarry as the company might from time' to time direct, hauled and delivered to such place or places as the company or its representatives may designate or direct. ’ ’ Regardless of these provisions, the court held that the relation of owner and contractor existed.
In Goode v. Johnson, 38 Colo. 440, 88 Pac. 439, 8 L. R. A., N. S., 896, the Supreme Court of Colorado had for construction a contract which provided that the work was to be performed under the direction and supervision of an engineer, who was given authority to discharge any employee of the contractor if the interest of the owner demanded. He was empowered to increase the force to further the progress of the work; and the right was reserved to enter upon, take possession, relet or perform if deemed expedient to do so. • The right of temporary suspension or permanent discontinuance was reserved. The engineer had the power to direct application of forces to any portion of the work, as his judgment required; and the right was reserved to directly pay laborers to avoid liens for work done. The court said: “In the light of these considerations, and from the language of these particular clauses, interpreted in the light of the entire contract, including the plans and specifications which are a part thereof, let us proceed to examination of these provisions which plaintiff says give rise to the relation of master and servant. In our judgment, neither of these clauses, nor all combined, have the effect which plaintiff contends for them as the reviewing of some of the leading authorities will disclose.”
Numerous decisions are then cited, and the court further said: “The fact that the company pays the employees of the contractor-directly in order to protect itself against liens, does not destroy the independent character of such employment. Clauses similar to those in the present contract, and still other provisions relating to supervision which the owner retained over the work, some of which go much further than any reservation herein contained, have been construed by courts, and almost universally held not to make the relation thereunder that of master and servant. On the contrary, such employment is ruled to be an independent one exempting the owner from the negligence of the contractor. ”■
The Supreme Court of Mississippi has had, in recent years, numerous occasions to construe contracts similar to the one here involved. In Hutchinson-Moore Lumber Co. v. Pittman, 154 Miss. 1, 122 So. 191, the contractor agreed to fell and saw certain standing timber into logs. He agreed to fell the trees, “within 12 inches of the ground, and cnt into lots of such lengths, as may be. designated from time to time by the company.” It further provided that the contractor should be “governed at all times by instructions from the company as to where timber shall be cut and the sequence in which governmental subdivisions shall be entered.” The company reserved the right to “authorize and direct the temporary abandonment of any particular part of the timber and direct operations to be conducted at some other point.” The court held that the contract did not create the relation of master and servant; that the method and manner of bringing about the results were left with the contractor, and that under the plain provisions thereof-the relation of independent contractor existed.
In Louis Werner Sawmill Co. v. Northcutt, 160 Miss. 441, 134 So. 156, it was expressly held that the employer might reserve the right to require laborers to perform their work according to certain prescribed rules; and, by so doing, the relation of owner and independent contractor would not be affected.
In McDonald v. Hall-Neely Lumber Co., 165 Miss. 143, 147 So. 315, Gray contracted with the lumber company to haul logs from a tract of timber to its mill. The court says: “Appellee contracted with Gray for a certain net result, namely, the placing on appellee’s mill yard of certain logs, the manner and means, - and the expense of doing the work being left entirely to him. The relation of master and servant does not exist, unless the master has some sort of substantial control over the means and methods of carrying out the contract. What logs Gray should haul and where he should place them did not constitute such control by appellee.”
The most recent decision by the Mississippi court is Cook v. Wright, 177 Miss. 644, 171 So. 686. The court said-: “This question has, within the last few years, often been before this court. From all the cases and the text, we see that the ultimate question for decision is whether the physical conduct of the contractor in the performance of his duties is controlled, or is subject to the right of control, by the owner or employer in respect to the details, of the work; and we can further say, with a sufficiently approximate accuracy, as to the claims of cases such as the one. now before us, that where the subject of the contract is to produce a certain net result, according to plans and specifications, reasonably specific and definite in their end, already agreed upon and made a part of the contract, and the contractor’s obligation is to produce that net result by means and methods over which, in the performance, so far as concerns the details of the management of the means and of the physical conduct of himself and his employees thereinabout, has and is obliged to have, his own control, the contract is one for service, not of service, and the relation of master and servant does not exist.” •
In all of the cases cited from other jurisdictions, the court reviewed at length innumerable cases and then stated and applied the accepted rule. This court, in the Secrist Case, 118 Ark. 561, 177 S. W. 37, said: “Reservation or exercise of control does not fix liability unless the owner undertakes to direct the manner in which the employee shall work in the discharge of his duties.”
In Harkins v. National Handle Company, supra, it was contended that because appellee reserved the right to “control the kind, quality and quantity of the output, according to specifications” and “the right to cancel the lease and take possession of the property” and because “it advanced money to meet payrolls,” the relation of master and servant was established. It was held that such reservations, and none of the circumstances proven outside of the contract, were inconsistent with the relation of lessor and lessee.
In Pine Woods Lumber Co. v. Cheatham, 186 Ark. 1060, 57 S. W. 2d 813, there was a verbal contract under which one Deckard agreed to cut and haul timber from certain lands to a named delivery point. Deckard was to furnish teams, equipment and laborers necessary to do the work. The trees were cut and sawed into logs of lengths “as directed by the woods foreman.” The own er’s bookkeeper made out the payrolls, paid the laborers in cash, and charged the contractor’s account. Settlements were made' on scale sheets and advances for fee bills were deducted. This court said: ‘ ‘ The testimony,. in all essential parts, reflected, without substantial dispute, that Deckard was an independent contractor.”
It is our view that the contract here involved created the relation of owner and contractor, rather than that of master and servant. Under its express terms, Moore was employed to carry on an independent piece of work; to act pursuant to the agreement in the manner outlined, and to remove and transport the timber from a definite area and within a fixed time, lie was obligated to perform on specified terms, in a particular manner and for a fixed compensation. The Company was interested only in the result to be obtained, and the method or manner of accomplishment ivas left - solely with Moore. Contractual provisions similar in every respect to those found in this .contract have been generally construed as we herein .hold.
[2] Is plaintiffs’ evidence sufficient to show that the Company, by subsequent conduct, abandoned the relation of owner and contractor and created that of master and servant?
Only three witnesses testified in this respect. Deal, a merchant at Monticello, ivhose deposition ivas taken, stated that on May 17 — after the accident April 23— Moore and Cox applied to him for a line of credit for Moore. During May, June and July he sold Moore 'cer-iain merchandise, the invoices therefor being given to Cox, and checks in payment were received from the Company’s office in West Helena. The books of the Company reflected that these invoices were regularly charged to Moore’s account.
Henry Lee Shelton testified that he began working on the Moore job about the last of June or first of July, cutting timber for Moore by the thousand. Moore showed him the timber and put him to work. Cox, the woods foreman, was not there when witness went to work. On his direct examination, after having stated that he cut logs, and in answer to the question, “'Who directed you where to cut them?”, he replied, “Mr. Moore.” He then stated that Cox was “on the job” only twice while he was there, and then in answer to the question if at any time he took orders from Mr. Cox, he answered, “Yes, sir.” There was this further testimony :
“Q. What orders did Mr. Cox give you? A. Well, 'he just told us to keep the stumps down pretty low.”
On cross-examination the following questions and answers appear in the record:
“Q. On your direct examination you stated that all he ever told you was to cut the stumps low? A. Yes, sir. Q. Is that correct? A. Yes, sir. Q. When you spoke then of him giving you orders, that was the only order he ever gave you? A. Yes, sir. Q. That is the only time he ever attempted to direct you in any manner whatsoever? A. Yes, sir. Q. All he told you was to cut the stumps low? A. Yes, sir. Q. Did Mr. Cox at any time, or during the time you were cutting there, complain as to the manner or method of cutting the logs? A. Not that I remember.”
Luke Moore, witness for plaintiffs, testified that he was employed by Arthur Moore; that he first talked to Arthur Moore about a job; that Moore told him he had a contract with Chicago Mill. He then talked to Cox, for the purpose of finding out whether he would be paid, and Cox said, “It will be all right to go ahead and go to work.” Cox told him not to worry about it. “He never said he would see that I got the money. He said there was a good company behind it, and not to worry about being paid.”
Witness then went to Moore, agreed with him to cut timber for $1.25 per thousand feet, and “that was the way he made the agreement with Moore to cut the timber.” Moore showed him the timber and put him to work. In answer to the direct question, “Do you know who had charge of the hauling* of that timber,” witness stated: “Mr. Moore had the contract to get it out of the woods.”
As to orders or directions given by Cox, witness stated that Cox came into the woods once or twice a week, told the cutters what lengths to cut logs — some 10, 12, 14, and 16 feet; that he wanted the timber cut down low, no rough timber cut, and the logs "butted off.” In answer to the question, "Did Mr. Moore at any time state to you who he was working under out there, his immediate superior or boss,” witness answered, "No, sir, he had a contract to cut the timber.”
■ On cross-examination this witness stated that the instructions referred to in his direct examination on the part of Cox were given to Moore, in the presence of the cutters.
"Q. He was talking to Mr. Moore about it in your presence? A. Yes, sir. Q. Mr. Cox did not complain to you, he was complaining to Mr. Moore about it in your presence? A. Yes, sir. Q. And Mr. Cox told Mr. Moore that the logs would have to be cut different, or else? A. Yes, sir.”
, ■ Witness further testified that Moore personally made two or three pay rolls. After the accident, the laborers were paid by Cox, on pay rolls made, out in Moore’s handwriting, in the presence of Moore, and at his direction. Receipts taken from, each of the laborers for work done after the accident were introduced in evidence and 'showed payment for "labor done on A. Moore’s job.”
The testimony quoted is, in substance, all of the evidence introduced on behalf of plaintiffs tending to show such control or direction on the part of the Company.
All of the evidence introduced by the Company was. to the effect that Cox, its woods foreman, was supervising execution of this particular contract, as well as various others in which it was contemporaneously interested in the immediate vicinity; and that Cox did not exercise such degree of control or direction over the means and method by which Moore performed this particular contract as would have the effect of altering the legal status of the parties.
Moore Lumber Co. v. Starrett, 170 Ark. 92, 279 S. W. 4, is directly in point. A written contract was involved. The timber was to be cut according to specifications. The contractor was to save tlie company “harmless against all claims for labor, maintenance, etc.” Instructions were given as to “the manner in which the lumber shall be cut.” At times' the company paid the laborers and charged the account of the contractor. The owner directed the contractor regarding dimensions into which the lumber was to be cut. The testimony showed that on occasions the owner would go through the mill, give orders and directions if he saw anything of which he did not approve, and caution laborers as to the manner in which the work should be done. In the opinion, Mr. Justice Wood said: “In the absence of any proof tending to show that the written contract was a mere camouflage to cover up the real relation between the company and Fleetwood, and that such relation was in fact merely' that of employer and employee, or master and servant, the court should not have ignored the plain and unambiguous terms of the written contract, and should have declared as a matter of law that the relation of master and servant did not exist, as requested by appellant.”-
Decisions of the Supreme Court of Mississippi, cited supra, each of which involves contracts essentially similar to the case at bar, and in which the evidence.was strikingly similar to that in the instant case, are directly in point, and the holdings are in accord with decisions from courts of other' jurisdictions — that is, that such evidence is without probative value.
The Supreme Court of Wisconsin, in Medford Lumber Co. v. Mahner, 197 Wis. 35, 221 N. W. 390, in a case similar in point of fact to the one at bar, said: “It is further claimed that, the lumber company did actually control the details of the work. It is unnecessary to refer to the evidence which it is claimed sustains this conclusion. We have given such evidence our consideration. It consists of admissions of the general manager that he went through the woods occasionally, about once a week, and talked with Mahner about the job, and the superintendent would go to the job occasionally, look around through the woods, talk to Mahner, and talk about how the work was going. ‘They said it was either going all right, — otherwise, if it wasn’t, they told him. He walked through the woods, looked around, and seen the logs being cut. If they were cut too short, he would tell them to cut them longer. He said that to the fellows who were sawing;’ There is no evidence that the company exercised the right to hire or discharge men, or to exercise any authority over the manner of performing the work. The contract required the logs to be cut in a certain length. This was the ultimate result sought to be accomplished by the contract. Logs cut too short might work a serious loss to the comT pany and it was its privilege and its duty to see that they were cut the proper length. Even though this was spoken of to men in the woods when logs were' seen to be cut too short, it was no evidence of an attempt on its part to control the details of the work. We discover no coif-' duct on the part of the company amounting to a practical construction of the contract inconsistent with the natural meaning of the language employed therein.
“Some contention is made that the fact that the lumber company paid the men employed by Mahner upon the presentation of a time order justifies the conclusion that the men working under Mahner were really employees of the company. Advancements are customarily made under such contracts as the work progresses. The company was interested in seeing that the men who worked for Mahner received their pay, this to free its timber of log liens. Advances made in this way protected the company and constituted the proper and businesslike method of handling the situation. The method pursued cannot give rise to an inference in view of the written contract that the employees of Mahner were really the employees of the company. ’ ’
The following cases from other jurisdictions, cited in the brief of the appellant company, are found to involve contracts in phraseology similar to the contract here questioned. They sustain the view that supervision for the purpose of determining whether the work is being done in accordance with the contract, and exercise of that right, do not affect independence. McBride v. Madden Shingle Co., 173 Mich. 248, 138 N. W. 1077; Davis v. Came-Wyman Lumber Co., 126 Tenn. 576, 150 S. W. 545; Keech v. Roper Lumber Co., 166 N. C. 503, 82 S. E. 836; Scales v. First State Bank, 88 Ore. 490, 172 Pac. 499; Gay v. Roanoke R. & Lumber Co., 148 N. C. 366, 62 S. E. 436; Hopper v. Ordway & Sons, 157 N. C. 125, 72 S. E. 839; Clark v. Tall Timber Co., 140 La. 380, 73 So. 239; Chicago, etc., Ry. Co. v. Bond, 240 U. S. 449, 36 S. Ct. 403, 60 L. Ed. 735; Salmon v. Kansas City, 241 Mo. 14, 145 S. W. 16; Prest-O-Lite Co. v. Skeel, 182 Ind. 593, 106 N. E. 365, Ann. Cas. 1917A, 474; Montain v. Fargo, 38 N. Dak. 432, 166 N. W. 416; L. R. A. 1918C, 600; Ann. Cas. 1918D, 826.
As to the contention by counsel for appellees that the contractual provision reserving to the Company the power to permanently discontinue operations under the contract does, in and of itself, create the relation of master and servant, -but little need be said. It is urged that this provision is in reality a “power to discharge,” and cases are cited which hold that the unrestricted right of discharge is a very important circumstance tending to-disprove the relation of independent contractor. These decisions are not unsound law when applied to facts actually involved, but they are not applicable to the situation here presented. The parties to this contract agreed that work might be temporarily suspended or totally rescinded. They were competent to make such an agreement and, as such,-it is distinguishable from an “unrestricted right of discharge,” a condition which usually arises where the work to be done is general and indefinite, rather than definite and specific, in character. That such is true is shown by the decision of the Supreme Court of South Dakota in Cockran v. Rice, 26 S. Dak. 393, 128 N. W. 583, Ann. Cas. 1913 B, 570, relied on by counsel for appellees. Therein, the defendant merely employed Stevens to plow on a 40-acre tract of land at an agreed compensation of $1.25 per acre. The court recognizes that a contract' of independent employment is one which contemplates a definite beginning, continuance and ending. It is said that “the unrestricted right of the employer to end the particular service” is of great bearing on the relation created. But, in the case then under consideration, there was no contract to plow a specified number of acres, and Stevens could have plowed or quit as and when he chose.' As said by that court, the contract was merely to pay for such plowing as might be done at a given rate per acre and did not make Stevens an independent contractor. We have carefully examined the remaining decisions cited by counsel for appellee, on this particular phase, and find them without bearing on the facts here presented. Moreover, the great weight of authority is to the effect that the reservation of the right to terminate the contract does not affect the independence. The following cases expressly so hold: Good v. Johnson, 38 Colo. 440, 88 Pac. 439, 8 L. R. A., N. S. 896; Odle v. Charcoal Iron Co., 217 Mich. 469, 187 N. W. 243; Ellis & Lewis, Inc., v. Trimble, 177 Okla. 5, 57 Pac. 2d 244; Moore v. Roberts, (Tex.) 92 S. W. 2d 236; Gogoff v. Industrial Commission, 77 Utah 355, 296 Pac. 229; Leech v. Sultan Ry., 161 Wash. 426, 297 Pac. 203; Beck v. Dubach Lumber Co., 171 La. 423, 131 So. 196; Arthur v. Marble Rock School Dist., 209 Ia. 280, 228 N. W. 70, 66 A. L. R. 718; Nelson Bros. & Co. v. Industrial Commission, 330 Ill. 27, 161 N. E. 113; Strong’s Case, 277 Mass. 243, 178 N. E. 637.
In Schroer v. Brooks, 204 Mo. App. 567, 224 S. W. 53, a Missouri case, the Supreme Court of that state held that one who had contracted to cut logs “by the thousand, ’ ’ who determined his own hours of labor, used such appliances as he saw fit, and employed his own laborers, was not a servant, even though the contract under which he worked was terminable at will by the owner. The court said: “Had the defendant sought to terminate the cutting of logs and ties, he would not have discharged Britts’ from his employ; he would merely have terminated the contract, which was reciprocal, in that Britts could likewise terminate-the contract at any time.”
There seems, therefore, to be unanirnity of opinion that under contracts similar to the one here involved, Moore would be an independent contractor and not a servant of the Company. The evidence is insufficient to show that the Company committed any act which would convert such relation into that of master and servant. Therefore, the Company is not liable to the plaintiffs in this action under the doctrine of respondeat superior.
According to statement of counsel for appellees in their brief, all available witnesses have appeared, and the case has been fully developed. The judgments in favor of the several plaintiffs against the Chicago Mill & Lumber Company are reversed, and the several causes of action are hereby dismissed.
Mr. Justice Humphreys and Mr. Justice Mehafey dissent, as to that part of the decision which reverses the judgments against Chicago Mill & Lumber Company, but in other respects concur. | [
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McHan'ey, J.
Appellant is the administratrix of the estate of her deceased husband, D. F. S. Galloway, who died intestate on June 30, 1936. She brought this action against appellees, J. L. Davis and Ella M. Davis, his wife, and W. A. G. Woodward and Mary Davis Woodward, his "wife, to recover judgment on ten promissory notes, executed and delivered by appellees to D. F. S. Galloway on July 25, 1928, each for the. sum of $2,700, due and payable July 25,1933; with interest at 7 per cent, per annum, payable semi-annually, from date until paid, and secured by a second mortgage on four certain lots at 7th and Scott streets in the city of Little Rock, which said notes are now lost or destroyed. The answer was a general denial. Trial resulted in a finding by the court that the decedent, payee in said notes, destroyed same in his lifetime, sometime between the due date and the date of his death, thus canceling the debt, and. in a decree dismissing the complaint for want of equity.
The facts out of which this litigation arises are substantially as follows: On and prior to July 21, 1928, D. F. S. Galloway was the owner of lots 7, 8, 9 and 10, block 7, Little Rock, located at the corner of 7th and Scott streets. This property was encumbered by two mortgages, one for $22,500, dated July 21, 1926, to the New York Life Ins. Co. and the other for $29,500, dated July 25, 1927, to the Union Trust Company of Little Rock, and both were due and demand had been made for payment. He also owned a farm of about 700 acres and it was heavily mortgaged to secure other indebtedness. He was unable to pay or to refinance the indebtedness on his Scott street property. His nephew, appellee W. A. G. Woodward, is a son-in-law of appellee, J. L. Davis, and ' he, Woodward, undertook to help his uncle refinance his indebtedness on the Scott street property and secured Mr. J. L. Davis to assist him in so doing. Accordingly, on July 21, 1928, said Galloway and his wife, the appellant, conveyed by warranty deed said lots to Davis and Woodward reciting a cash consideration of $125,000. It is undisputed that no such consideration was paid. On July 23,1928, Davis and Woodward borrowed from Federal Bank & Trust Company of Little Rock $65,000 for which they executed their note, secured by a mortgage on said lots, and on July 25, 1928, they executed and delivered the notes in suit and gave a second mortgage on said lots as security for same. From the proceeds of this $65,000 mortgage, they paid off the indebtedness to the New York Life Ins. Co. and to Union Trust Company, and had a balance in their hands of $11,774.14 which they immediately paid to Mr. Galloway. They took charge of said property and tried to sell it, first offering it at $125,000 and finally for $97,000, but were unable to sell it. In 1931, the indebtedness to Federal Bank & Trust Company being due and unpaid, suit to foreclose was filed, in which Mr. Galloway was made a defendant. He filed an answer by his attorney, Judge G. W. Hendricks, in which he admitted the validity and priority of the bank’s indebtedness, set up the fact that he had a second mortgage securing the ten notes here in suit, and prayed that he be paid any surplus that a sale of the property might bring over and above the first mortgage debt. No relief was prayed against appellees. At no time did Mr. Galloway try to enforce collection of these notes. Judge Hendricks testified that lie had the notes in his possession at the time he filed the answer in the foreclosure proceeding, hut that he does not now have them, nor does he know what became of them. Mr. McNeal, lessee of the Galloway farm, testified that Mr. Galloway told him that he gave Woodward a deed to the Scott street property so that he could refinance it. He also testified that Galloway filed a petition in bankruptcy and talked to him about some indebtedness witness owed Galloway. “I asked him if he couldn’t use the notes Davis and Woodward owed him, and he said no, he had destroyed them and that Walter Woodw.ard would not see those notes again.” “Q. That he had destroyed them? A. Yes,'that he had destroyed them.” Mr. Galloway did file a petition in bankruptcy and in Schedule B, containing-a list of assets of the bankrupt, he failed to mention this $27,-000 worth of notes, although he did later amend his schedule to show an indebtedness of Mr. McNeal which had been omitted. Claude L. Holland testified that Woodward and Davis, in the presence of Galloway, procured him to attend the foreclosure sale of said lots and to bid enough to prevent a judgment over against them and that Mr. Galloway said he wanted the property to bring enough to protect them; that something was said about the notes Mr. Galloway held against them and he said he didn’t expect anything from them.
This is the evidence on which the court found that the notes had been destroyed by Mr. Galloway and we are unwilling to say the finding is against the preponderance of the evidence. This leaves out of consideration the testimony of both Davis and Woodward, most of which was incompetent under Schedule 2 to the Constitution or § 5154, Pope’s Digest, as the court correctly held. These notes were unconditional and were absolute promises to pay, and it would not be competent to show by parol testimony that the consideration expressed therein was to be paid out of a re-sale of the property only. Abbott v. Kennedy, 133 Ark. 105, 201 S. W. 830; Randall v. Overland Texarkana Co., 182 Ark. 877, 32 S. W. 2d 1064, 75 A. L. R. 1516. The fact that the consideration of $125,000 expressed in the deed was not the true consideration, the fact that two large mortgages were immediately placed on the property, one for $65,000 .and the other for $27,000, and that these lots were placed on the market at a price of $125,000 are strong circumstances that the second mortgage debt was not to be collected, except from a re-sale, and that these amounts would tend to boost the price on a re-sale. However, we prefer to base our decision, as did the court below, on the fact of intentional destruction of the notes by the payee, and that it was never his intention to collect them as against appellees. The evidence hereinbefore recited supports this finding and we are unwilling to say that the facts and circumstances to the contrary, and there are •some, are sufficient to overturn this finding. "We think it would serve no useful purpose to set out these facts and circumstances again and comment on them separately, but here are a few of them: 1, Payment to. G-alloway of the $11,774.14; 2, failure to ask for more in the foreclosure suit than the surplus; 3, failure then, or at any other time to enforce payment; 4, disappearance of the notes; 5, failure to list these notes as an asset in bankruptcy; and 6, the testimony of several witnesses, one that he had' destroyed them and, two, that he did not intend to collect them.
We find no error, so the decree is affirmed. | [
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COURTNEY HUDSON GOODSON, Associate Justice
11 Appellants, the Arkansas Department of- Correction and Wendy Kelley, in her official capacity as Director of the Arkansas Department of Correction (“ADC”), appeal from the Pulaski County Circuit Court’s order requiring the ADC to provide appellee Steven Shults with the pharmaceutical package inserts and labels for its supply of midazolam, one of the drugs in the State’s execution protocol. For reversal, the ADC argues that, the lethal-drug information requested by Shults is confidential and not subject to disclosure under the Method of Execution Act (“MEA”), Arkansas Code Annotated section 5-4-617 (Supp. 2015). In the alternar tive, the ADC contends that, even if the information is not. confidential under the MEA, it is still required to redact.certain information from the drug labels to protect the confidentiality of sellers and suppliers in the chain of distribution. We affirm in part and reverse and remand in part.
UShults, an Arkansas resident and attorney, filed a complaint against the ADC on September 7,12017, after it refused to provide him with public records pertaining to the State’s supply of midazolam pursuant to his Arkansas Freedom of Information Act (“AFOIA”) request. According to the allegations in the complaint, Shults submitted an AFOIA request to the ADC on August 21, 2017, seeking, in part, documents and records held by the agency after May 1, 2017, containing “the name of chemicals or substances intended or considered for use in lethal injection executions, manufacturer/compounder,' concentration, expiration date(s) and/or lot numbers of all chemicals or substances intended or considered for use in executions currently in the possession of the. ADC.” On August 24, 2017, the ADC responded to the request by providing records revealing that on August 4, 2017, Kelley had acquired 4 vials of midazolam, a drug listed in its execution protocol. The ADC refused, however, to disclose, the package inserts or labels for the newly acquired supply of midazolam because, it stated,, these documents could be used to identify the sellers* ,or suppliers of the drug in violation of the MEA. Shults alleged that the ADC’s interpretation of the MEA was in violation of the clear language of the statute and of his rights under the AF-. OIA, that the ADC was not substantially justified in its refusal to provide the requested records, and that he was entitled to unredacted copies of the drug labels and package inserts.
On September 18, 2017, the ADC filed a motion to dismiss the complaint under Arkansas Rules of Civil Procedure. 12(b)(1), 12(b)(6), and 12(b)(8) or, alternatively, for a stay of the proceedings pending the final resolution of a related case filed by Shults. The ADC argued that Shults had failed to state an AFOIA claim because the records he. sought Iswere specifically exempted from public disclosure by the MEA. According to the ADC, the lethal-drug labels and package inserts readily identify the drug .manufacturers, who are also, sellers and suppliers that are protected by the confidentiality provisions in the MEA. The ADC further argued that interpreting these provisions to include manufacturers comports with both legislative intent and public policy. In the alternative, the ADC asserted that, even if the circuit court concluded that Shults had stated a cognizable AFOIA claim, the court should order information such as lot and batch numbers to be redacted from the drug, labels because it could lead to the identification of downstream sellers and suppliers.
In support of its motion, the ADC attached the affidavit of Rory Griffin, the deputy director of Health and Correctional Programs with the ADC. Griffin stated that the ADC had attempted to comply with both the disclosure and confidentiality provisions of the MEA in response to past AFOIA requests; however, even when the ADC had provided redacted copies of lethal-drug labels and package inserts, some recipients had been able to determine the identity of the drug manufacturers by comparing the redacted labels and inserts to publicly available information. Griffin indicated that this is because each manufacturer’s labels , and package inserts are unique-with respect to format, style, diction, font, organization, grammar, spelling, size, shape, coloring, and appearance. Given the unique character of drug labels and package inserts, Griffin stated that the only way for the ADC to comply with, the confidentiality provisions of the MEA is to decline disclosure of these records entirely. In addition to the fact that the labels and inserts reveal the identity of the manufacturer, Griffin' asserted that the lot and batch numbers on the drug labels can be used to trace the drug through the distribution and supply chain all the way to the end user, |4which in this case is the ADC. Thus, Griffin averred that the MEA absolutely prohibits the ADC from disclosing this information when responding to AF-OLA requests.
A hearing was held on Shults’s complaint on September 19, 2017, and on September 22, 2017, the circuit court entered an order denying the ADC’s motion to dismiss and granting Shults’s request that he be provided with the unredacted mi-dazolam labels and package inserts. The court disagreed with the ADC’s interpretation of section 5-4-617 of the MEA, finding that the General Assembly did not intend to protect the identity of manufacturers of drugs used in the ADC’s lethal-injection protocol. The ADC filed a notice of appeal the same day, and on September 27, 2017, this court granted its request for an emergency stay of the order pending appeal. We also granted Shults’s motion to expedite the appeal.
The ADC argues that the circuit court erred by ordering it to provide Shults with copies of the midazolam labels and package inserts because these records are not subject to disclosure under the MEA’s confidentiality provisions. Thus, the issue presented on appeal is strictly one of statutory interpretation.
We review issues of statutory interpretation de novo, as it is for this court to determine the meaning of a statute. Dep’t of Ark State Police v. Keech Law Firm, P.A., 2017 Ark. 143, 516 S.W.3d 265. However, in the absence of a showing that the circuit court erred, its interpretation ■will be accepted as correct on appeal. Hendrix v. Alcoa, Inc., 2016 Ark. 453, 506 S.W.3d 230.
The primary rule of statutory interpretation is to give effect to the intent of the legislature. Keep Our Dollars in Independence Cnty. v. Mitchell, 2017 Ark. 154, 518 S.W.3d 64. We first construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. Statutory language is ambiguous if it is open to two or more constructions, or if it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. Dickinson v. SunTrust Nat’l Mortg. Inc., 2014 Ark. 513, 451 S.W.3d 576. When a statute is ambiguous, we must interpret it according to legislative intent, and our review becomes an examination of the whole act. Id. In conducting this review, we reconcile statutory provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. Id.
The MEA’s confidentiality provisions relied upon by the ADC are contained in Arkansas Code Annotated section 5-4-617(i) and (j):
(1)(l) The procedures under subdivision (g)(1) of this section, the implementation of the procedures under subdivision (g)(1) of this section, and the identities of .the entities and persons who participate in the execution process or administer the lethal injection are not subject to disclosure under the Freedom of Information Act of 1967, § 25-19-101 et seq.
(2) The department shall keep confidential all information that may identify or lead to the identification of:
(A) The entities and persons who participate in the execution process or administer the lethal injection; and
(B) The entities and persons who compound, test, sell, or supply the drug or drugs described in subsection (c) of this section, medical supplies, or medical equipment for the execution process.
(3) The department shall not disclose the information covered under this subsection in litigation without first applying to the court for a protective order regarding the information under this subsection.
(j) The department shall make available to the public any of the following information upon request, so long as the information that may be used to identify the compounding pharmacy, testing laboratory, seller, or supplier is redacted and maintained as confidential:
(1) Package inserts and labels, if the drug or drugs described in subsection (c) of this section have been made by a manufacturer approved by the United States Pood and Drug Administration;
(2) Reports obtained from an independent testing laboratory; and
|b(3) The department’s procedure for administering the drug or drugs described in subsection (c) of this section, including the contents of the lethal-injection drug box.
The ADC contends that the drug labels and package inserts at issue here could not be disclosed under the confidentiality provisions in subsections (i) and (j) because they could lead to the identification of lethal-drug sellers and suppliers. More specifically, the ADC argues that lethal-drug manufacturers are protected by the plain language of these confidentiality provisions because they “sell” or “supply” lethal-injection drugs—such as midazolam— to distributors and place the drugs into the stream of commerce. The ADC therefore asserts that, because it presented evidence to show that even redacted copies of these records could lead to the identification of the midazolam’s manufacturer, it was justified in refusing to provide the records to Shults.
As the ADC argues, the definitions of both “seller” and “supplier” could be interpreted to include a manufacturer. See, e.g., Black’s Law Dictionary (10th ed. 2014) (defining a “seller” as “someone who sells or contracts to sell goods” and a supplier as a “business engaged, directly or indirectly, in making a product available to consumers). However, the term “manufacturer” also has its own distinct meaning and is defined as “[a] person or entity engaged in producing or assembling new products.” Id. Thus, it is unclear from the plain language in the confidentiality provisions of the statute whether the legislature intended for drug manufacturers to be included within the terms “seller” or “supplier.”
A review of the entire statute, however, reveals that the legislature explicitly referred to a “manufacturer” of lethal drugs in two different subsections. See Ark. Code Ann. § 5—4—617(d)(1) & (j)(l). As the circuit court found, this demonstrates that the legislature was aware of the differences between the terms “manufacturer,” “seller,” and “supplier” and 17that it could have easily included “manufacturer” among the entities whose identity was confidential for purposes of the MEA had it intended to do so. We have repeatedly held that we will not read into a statute language that was not included by the legislature. E.g., Mitchell, supra; Scoggins v. Medlock, 2011 Ark. 194, 381 S.W.3d 781; Potter v. City of Tontitown, 371 Ark. 200, 264 S.W.3d 473 (2007).
Furthermore, we agree with the circuit court that, under the ADC’s interpretation of the statute, subsection (j)(l) would be rendered meaningless. This subsection expressly states that “so long as the information that may be used to identify the compounding pharmacy, testing laboratory, seller, or supplier is redacted and maintained as confidential,” the ADC “shall make available to the public ... [p]ackage inserts and labels, if the drug or drugs ... have been made by a manufacturer approved by the United States Food and Drug Administration.” If the ADC’s argument is correct that manufacturers are included within the terms “seller” or “supplier” and that disclosure of even redacted labels and inserts would lead to the identification of those manufacturers, then these records would never be disclosed to the public despite the express mandate to the contrary in this subsection. In addition, this interpretation would defeat the purpose of section 5-^4—617(d)(1), which requires that the ADC use drugs that are made by an FDA-approved manufacturer. As the circuit court noted, the public has no way to verify whether the ADC is complying with that requirement if drug manufacturers are protected by the confidentiality provisions in the statute. Thus, the ADC’s position would violate our rule of construction that we interpret a statute in such a way as to give effect to every provision. Dickinson, supra.
|sThe ADC’s argument that protecting the identity of manufacturers supports the State’s interest in carrying out death sentences is also unpersuasive. As the ADC asserts, the General Assembly adopted the confidentiality provisions of the MEA “to address the problem of drug shortages.” Act of April 6, 2015, No. 1096, § 1(b), 2015 Ark. Acts 4932. However, the evidence presented in this case demonstrated that many manufacturers of lethal-injection drugs already prohibit the use of these drugs in executions and that these manufacturers often have contracts in place with their distributors that prevent the downstream sale of the drugs to prison officials. It is therefore the confidentiality of the sellers and suppliers of these drugs to the ADC that the confidentiality provisions were intended to protect.
We interpret AFOIA liberally to promote free access to public information. Keech Law Firm, supra. In addition, we interpret any exemptions to AFOIA narrowly and in favor of disclosure. Id.; Ark. State Police v. Wren, 2016 Ark. 188, 491 S.W.3d 124. Based on the foregoing principles, we conclude that the circuit court was correct in determining that the identity of drug manufacturers is not protected under the confidentiality provisions of section 5-4-617, and we affirm this ruling.
The ADC also argues, however, that even if we agree with the circuit court that the confidentiality of manufacturers is not protected under the statute, it is still required to redact certain information such as lot, batch, and/or control numbers that could lead to the identification of other sellers and suppliers in the chain of distribution. We agree.
Pursuant to section 5—4—617(j), if package inserts and drug labels are made available to the public, any information that could be used to identify the seller or supplier must be | redacted and maintained as confidential. The ADC presented evidence through Griffin’s affidavit that drug labels contain unique identifying information in the form of lot and/or batch numbers that can be used by the manufacturer to trace the drug through the distribution and supply chain, all the way to the end user. The ADC’s argument is also supported by FDA regulations, which require that drug labels contain information revealing “the complete history of the manufacture, processing, packing, holding, and distribution of a batch or lot of drug product!.]” 21 C.F.R. § 210.3(b)(ll) (2011).
While Shults disputes the ADC’s claim, he has provided no evidence to refute it. At the hearing, the circuit court agreed with the ADC that Griffin’s testimony with regard to the lot, batch, and/or control numbers was unrebutted, and the court, further indicated that it believed that Griffin’s testimony was correct. Despite this discussion, the circuit court then stated in its order.that there were no facts before it to indicate that the package inserts and.labels would identify the' sellers and suppliers. This finding is clearly contrary to the unrefuted evidence presented by the ADC.
Accordingly, because disclosure of information such as lot, control, and/or batch numbers could lead to the identification of the seller and/or supplier of the midazo-lam, the ADC is correct that it is required to redact and maintain this information as confidential under section 5—4—617(j). We therefore reverse that portion of the circuit court’s order requiring disclosure of the unredacted records and remand for the court to determine, based on the evidence presented by the parties, which information must be redacted on the midazolam labels and/or package inserts at issue. Due to the expedited status of this appeal, we order the mandate to issue within three days of this opinion unless a petition for |,prehearing is filed. If a petition for rehearing is filed, any response will be due on. an expedited basis to, be set by the clerk. . : . .
Affirmed in part; "reversed and remanded in part.
Kemp, C.J., and Wood, Wynne, and Womack, JJ., concur in part and dissent in part. | [
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Holt, J.
A scaffold on which appellee, John Bogey, was standing while repairing the roof of appellant’s lumber shed fell and he sued jointly, appellant, Barton-Mansfield Company, a corporation, and Calvin Carter, an employee, to recover damages in the sum of $8,000 to compensate for injuries alleged to have been sustained by him.
The negligence of appellant lumber company and Carter, its employee, alleged in appellee’s complaint was that Calvin Carter stacked against the scaffold upon which appellee vras standing more than “three times” the amount of lumber necessary to complete the repair of the roof upon which appellee was engaged thereby causing the scaffold to collapse and seriously injure appellee.
It was further alleged “that at the time the scaffold collapsed, and prior thereto, the plaintiff was standing near the north end, and in a position from which he could see neither the defendant, Calvin Carter, nor the amount of lumber that had been piled against said scaffold.”
The lumber company and Carter filed separate answers denying every material allegation in the complaint, and specifically pleading assumption of risk and contributory negligence and that appellee was an independent contractor.
Upon a trial to a jury there was a verdict in favor of defendant, Calvin Carter, and a separate verdict against appellant, lumber company, in the sum of $3,000. From the judgment against it, the Barton-Mansfield Company has appealed.
Stating the testimony in its most favorable light to appellee, as we must do, the record reflects that John Bogey, appellee, 56 years of age and a carpenter and contractor of some 18 years’ experience was employed September 4, 1939, by appellant through its manager, C. D. Miller, for the special service of repairing the roof of appellant’s lumber shed. For this work he was to receive 50c per hour, or $5 per day, and was to select a helper at 20c per hour, or $2 per day. Appellee selected “Bubba” Durain as helper and his services were paid for by appellant through a check payable to appellee, who in turn paid Durain.
Before beginning the work on the roof, appellee and his helper, Durain, for their convenience, built the scaffold in question from lumber which they selected from appellant’s stock. This scaffold was approximately 35 feet in length, seven feet high and'about three feet from the roof. It was divided into three sections, with only the extreme left section cross-braced, the center and right sections having a line brace for their support. Appellant had nothing to do with the construction of this scaffold.
Calvin Carter and Aubrey Bogey (appellee’s son) were employees of appellant stacking and arranging lumber and doing other odd jobs about the yard.
During the progress of the repair work on the roof, appellee directed his son Aubrey and Carter to bring him some 10 or 12 pieces of shiplap boards about 14 feet in length. This they proceeded to do with the aid of a truck. They brought, however, 30 or 35 pieces of lumber. After Aubrey Bogey had placed 10 or 12 pieces of this lumber leaning 'against the end of the scaffold at an angle of about 45 degrees, Calvin Carter unloaded the remaining pieces from the truck, placing them against the end of the scaffold with the boards that Aiibrey Bogey had unloaded. About five minutes after these boards bad been left leaning against tbe end of the scaffold, the scaffold collapsed injuring appellee.
On the question of procuring and delivering these pieces of lumber, appellee testified that he said to his son, Aubrey, and Calvin Carter, “Boys get me some lumber,” and that he told them it would take 10 or 12 pieces; that his son brought the lumber in a truck and “He stacked it on this 2x6. Q. You- could see him taking it from the truck, but could you see the lumber? A. Not unless I would have got down on my knees. Q. I mean, did you see the lumber? A. No. That is the only way I could have seen it. Q. Did you see Calvin Carter take any of the lumber from this truck? A. Yes, sir. Q. Could you hear the lumber being stacked against there? A. No, sir, I couldn’t. I don’t know where he put the lumber. I know he finished unloading. I saw him unload the lumber. ... A. I was working on that board. I was on right there — on this end when it collapsed. . . . That scaffold went out from under me like a streak of lightning, I guess. Before I thought to catch on anything, we were on the ground. It just went down awfully quick. I had no warning whatever.”
Quoting further from appellee’s testimony: “Q. Mr. Bogey, what kind of scaffold was that? Was that a substantial scaffold? A. Just as substantial as I ever built, I considered it. . . . Q. Did you see the stack of lumber they had up there? A. I didn’t see it until after it hit my feet.: Q. How large a stack of lumber was it that fell down, a portion of which hit your feet? A. I presume there was 30 or 35 boards. Q. Was it more lumber than a scaffold of that kind should be used for? A. In my judgment, yes, sir. I wouldn’t have let them put it up there if I could have seen what they were doing. I didn’t observe it. I certainly didn’t. . . . Q. Was there anything said between .you and Mr. Miller about the help so far as getting the material to you, or how you were to get that? A. Yes. He says the boys that are out there were going to get me the material I needed. . . . They (meaning Aubrey Bogey and Cal vin Carter) bad nothing to do with the building of the scaffold or the repairing of the shed, but they were to bring me the material.”
On cross-examination appellee testified: “I saw them come back, back with the truck. Q. 1 You saw some of the lumber placed out there? A. I saw some of the lumber placed out there, yes, because I pulled up one or two boards afterwards, yes, sir. Q. When did this scaffold fall? A. This scaffold — we got along there and put on four or five of them boards I think— Q. Just let me ask you, where did you get those boards? A. I got them off down here. ... Q. You knew there was lumber there? A. Yes, sir, I knew — I saw him put — I had been drawing up some from there. . . . Q.' Mr. John,'did Mr. Miller assign Aubrey Bogey and Calvin Carter anything to do in connection with the repairing of the roof? A. In that way, no. . . . Q. Mr. John, you are really your own boss, are you not? A. Well, invariable.”
Eugene Durain, appellee’s helper, testified on behalf of appellee (and here we quote a summary of his testimony from appellee’s brief) that “he heard Bogey tell Calvin Carter and Aubrey Bogey to get some lumber; that he and John Bogey were standing on the walk board at the time that the lumber was stacked against the end of the scaffold. He testified that John Bogey stood between him and the north end of the scaffold ; that he did see some of the lumber that was stacked against the end of the scaffold, that is, the first boards towards the middle; that he could not have seen all of the lumber stacked there; that the roof would have obstructed their view in seeing more than the first boards that had been placed against the end of the scaffold; that at the time the scaffold fell he and Mr. Bogey were working on the north end; that the reason that the scaffold fell was that the nail in the purline board had pulled out; that the horizontal board upon which the lumber was stacked pulled loose from the post; that the weight of the lumber forced out the nail that held the purline board causing it to collapse; that after the shed collapsed, at the direction of Mr. Miller, the witness returned and finished the job; and that Mr. Miller paid him.”
Aubrey Bogey testified that his father (appellee) told him and Calvin Carter to get 10 or 12 pieces of 14-foot lumber, but that they got 30 or more pieces because he thought it would be needed; that he stood about 12 boards against the end of the scaffold and that Calvin Carter unloaded the remainder of the boards placing them against the end of the scaffold. He further testified that the scaffold collapsed within five minutes after the last lumber had been stacked against it.
Many errors are assigned. The first is that the trial court erred in refusing appellant’s request for an instructed verdict in its favor at the close of all the testimony. Having reached the conclusion that this contention of appellant must be sustained, it becomes unnecessary to consider the other assignments.
The record reflects that appellee, an experienced carpenter and contractor, was employed for the special service of repairing the roof of appellant’s lumber shed. While performing this work, he was to receive $5 per day and have an assistant of his own choosing at $2 per day. Materials for the work were furnished by appellant, and appellee had the permission of appellant to call upon two of its employees, Aubrey Bogey (appellee’s son) and Calvin Carter, to deliver materials needed in the work. With appellant’s consent, appellee, for his own convenience in prosecuting the work, constructed •the scaffold which collapsed and injured him. This scaffold was constructed by appellee and his helper under appellee’s sole supervision and without any suggestion or interference on the part of appellant. Appellant knew nothing about the strength or weakness of this scaffold. The material that went into it was selected by appellee. Appellant knew nothing about the time when the ship-lap boards were delivered to appellee, nor the number that would be necessary for appellee’s use. When ap-pellee directed his son and Carter to bring the boards to him, they were under his direct supervision and control in respect of the particular transaction. Where they should place this lumber for the convenience of appellee was under his absolute control, as was the number of pieces required.
According to this record, appellant had no immediate supervision of the actions of these two employees in executing the order of appellee to procure and deliver this lumber to him while appellee was in the performance of the special service for which he was employed by appellant. The lumber was stacked against the scaffold where appellee could and should have seen it, and he used pieces from this stack before the scaffold fell. Ap-pellee knew that his son and Carter were placing lumber in a leaning position against the end of the scaffold and if thfey placed more pieces against the scaffold than were necessary, or than it was able to withstand, it was not the fault of appellant, but the fault of appellee who was in charge and who supervised their action.
The general rule applicable to the facts before us is clearly stated in St. Louis, I. M. & S. Ry. Co. v. Yates, 111 Ark. 486, 165 S. W. 282, where this' court said:
“The fact that the party, to whose wrongful or negligent act an injury may be traced, was at the time in the general emplojunent and pay of another person does not necessárily make the latter the master and responsible for his acts. The master is the person in whose business he'is engaged, at the time, and who has the right to control and direct his conduct. The rule on this subject is well stated by a learned author on the law of negligence as follows: ‘He is to be deemed the master who has the supreme choice, control and direction of the servant, and whose will the servant represents, not merely in the ultimate result of his work, but in all its details. The payment of an employee by the day, or the control and supervision of the work by the employer, though important considerations, are not in themselves decisive of the fact that the two are master and servant. . . . ’ Shearman & Redfield on Negligence (4 ed.) 269. . . .
“It is well settled that one who is the general servant of another, may be lent or hired by his master to another for some special service, so as to become, as to that servant, the servant of such third party. The test is whether, •in the particular service which he is engaged to perform, he continues liable to the direction and control of his master or becomes subject to that of the party to whom he is lent or hired. ’ ’
We think whatever negligence, if any, may be attributable to Calvin Carter was assumed by appellee under whose direct supervision and control and for whose special benefit Carter was acting at the time.
For the error indicated, the judgment is reversed, and since the cause seems to have been fully developed, it is dismissed. | [
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Mehaffy, J.
Sewer Improvement District No. 1 of Bentonville, Arkansas, entered into a written contract with Carl C. Silver, doing business as the Silver Construction Company, for furnishing all materials and labor in the construction of a sanitary sewer system in the city of Bentonville. The plans' and specifications were attached to the contract, and said plans and specifications with the proposal are, by the terms of the said contract, to become the specific agreement and contract between the 'parties in all matters and things set forth and described.
The price or sum for which the contractor agreed to do the work was $87,090.58. The contract provides for the manner of payment. Thereafter the contractor, as principal, and the National Surety Company of New York, as surety, entered into a bond and bound themselves to the State of Arkansas and the board of improvement of Sewer Improvement District No. 1 of Benton-ville, Arkansas, in the sum of $174,181.16, double the amount of the contract'price, to secure the payment of all the indebtedness for labor and materials furnished in the construction and making said public improvements, and to perform each and every one of the covenants, conditions and agreements set out in said contract.
The appellant brought suit in the Benton Circuit Court against the appellee, National Surety Company of New York, alleging the execution of the bond, which was conditioned as follows: “Now if the principal shall pay all indebtedness for labor and materials furnished in the construction and making of said public improvements and shall well and truly perform each and every one of the conditions, covenants and agreements set out in the contract above referred to, on his part to be performed, this obligation shall be void, otherwise in full force and effect. ’ ’
It was alleged that said bond was never filed in the office of the clerk of the circuit court of Benton County nor approved by the clerk as a statutory bond.
The appellant alleged that it had sold lime, cement and other necessary material, aggregating the sum of $4,116.43, all of which was used in the construction of the said system of sewers and said disposal plant; that Silver had paid on the account $3,414.61, leaving a balance of $701.82, for which appellant has asked judgment. There was no dispute about.the amount of the indebtedness.
The appellee answered, alleging that the appellant had given to' the contractor a receipt and release in full of the amount sued on, and that thereafter the moneys due and owing to said contractor upon said final estimate were paid in his behalf and satisfaction of his indebtedness to the First National Bank and the Benton County National Bank, in the city of Bentonville; that said payments were made in reliance upon said receipt and release given by appellant, and after appellant had represented to the board that the amount had been paid in-full; that appellant is estopped to assert any claim upon said account, and is not entitled to recover from appellee. It alleged that, if appellant was entitled to recover, ap-pellee was entitled to judgment against said banks for the amount of such recovery.
Appellee further alleged that a bond was required and executed pursuant to the said provisions ef the contract and in compliance with the laws and statutes of Arkansas, and said bond was and became a statutory bond. It also alleged that suit had not been brought within six months, and for that reason the cause of action was barred.
The cause was transferred to chancery court by agreement. The case was tried by the chancery court on oral testimony. The court held that the bond executed was a statutory bond, and the liability of the defendant surety company must be determined by §§ 6913 and 6914 of C. & M. Digest of the Statutes of Arkansas; that said bond was never approved by the clerk of the circuit court of Benton County, Arkansas, or filed in his office, as provided by said sections, and that appellant’s action on the bond was filed within five years from the completion of said improvement, but that the cause of action on the bond was barred because not brought within sis months after the completion of the improvement, as provided by said § 6914, and the court dismissed appellant’s complaint.
This appeal is prosecuted reverse said decree.
If the chancery court was correct in holding that the bond was a statutory bond, it was correct in dismissing the case.
Section 6913 of C. & M. Digest reads as follows: “Whenever any public officer shall, under the laws of this State, enter into a contract in any sum exceeding one hundred dollars, with any person or persons, for the purpose of making any public improvements, or constructing any public building, or making any repairs on the same, such officer shall take from the party contracted with a bond with good and sufficient sureties to the State of Arkansas, in a sum not less than double the sum total of the contract, whose qualifications shall be verified, and such sureties shall be approved by the clerk of the circuit court in the county in which the property is situated, conditioned that such contractor or contractors shall pay all indebtedness for labor and material furnished in the construction of said public building, or in making said public improvements.”
Section 6914 provides: “Such bond shall be filed in the office of the clerk of the circuit court in the county in which said public improvement is to be made or such public building is to be erected, and any person to whom there is due any sum for labor or material furnished, or his assigns, may bring an action on said bond for the recovery of said indebtedness; provided, that no action shall be brought on said bond after six months from the completion of said public improvement or buildings.”
The appellant states that it may not he necessary to have the approval of the clerk as to the sufficiency of the security, but it does not admit that this is true, and calls attention to certain authorities. Section 6913 provides that sureties shall be approved by the clerk of the circuit court in the county in which the property is situated. This provision is manifestly intended for the benefit of persons who might have a cause of action on the bond and to protect their interests, and a provision for examining into the sufficiency of the bond and its approval by the clerk was enacted. The surety on the bond in the instant case, however, is a surety company, and, under the law authorizing such companies to do business in this State, it is provided that no such company shall do business in this State unless such company is possessed of $250,000 capital, fully paid in cash, and unless such capital and surplus holdings of said company to the extent of $50,000 is invested in bonds created by the laws of this State or of the United States, or other securities the value of which at the time of said deposit shall be at or above par; which investments are deposited with the Insurance Commissioner and State Fire Marshal, to be held in trust, or are deposited elsewhere for the benefit of all obligees of such company, the surety before mentioned, to which two officers of the company shall certify, and which certificates shall embrace the items of security so held, and shall state that they are satisfied that such securities are worth $50,000. The section further provides that any guaranty or surety companies may execute a bond signed by any other guaranty or surety company authorized to do business in this State, for the benefit of its obligees, in the sum of $50,000, to be approved by the Insurance Commissioner and State Fire Marshal, and filed in his.office, instead of depositing the bonds as herein provided (See 6134, C. & M. Digest). No guaranty or surety company can do business in the State of Arkansas without complying with the laws of the State of Arkansas, and this would seem to be ample protection and make it unnec essary to have the surety examined and approved by the clerk of the county where the improvement is made. The contract itself clearly shows that it was the intention of the parties to execute the bond provided by statute.
In this case the parties entered into the contract which provided, among other things, that the contractor should give a bond as required by the statutes of Arkansas. The statutes of Arkansas require the bond mentioned in § 6913. That section provides that the bond shall be conditioned that such contractor or contractors shall pay all indebtedness for labor and material furnished in the construction of said public building or in making said public improvements. This character of bond was given, a bond provided by the statutes, and it is conceded by the appellant that the bond was made to the State of Arkansas, that it was made in double the amount of the contract price, and conditioned that the contractor shall pay all indebtedness for labor and materials furnished in the construction of the improvement. The only other things required by the statute that was not done was to file the bond in the office of the clerk of the circuit court, as required by § 6914 of C. & M. Digest.
The appellant calls attention to the case of Fidelity & Deposit Company of Maryland v. Crane, 178 Ark. 670, 12 S. W. (2d) 872. The court, however, in that case said, in referring to the case of Rieff v. Redfield School Board, 126 Ark. 474, 119 S. W. 16: “In that case the court held that in the case of a bond given by a contractor to secure school directors, who were held to be public officers, the bond' was executed pursuant to the statute and in obedience to it, and with the intention of complying with its terms, it was a statutory bond, although it did not strictly follow the provisions of the statute. ’ ’
The court in the above case held that the statute did not prohibit sureties from executing a bond expressly limiting its liability to the obligee of the bond, where the bond does not contain any covenant showing that it was intended to be executed in obedience to the provisions of the statute, but, on the other hand, expressly negatives that idea. The court further held that, if there was a covenant showing that it was intended to be executed in obedience to the provisions of the statute, it would be a statutory bond. If the bond was made in an attempt to comply with the statute, and the intention of the parties was to make a bond in accordance with the laws of Arkansas, as they recited in the contract, then the law is a part of the bond.
“The law at the time of the execution of the bond is a part of it; if it gives to the bond a certain legal effect, it is as much a part of the bond as if in terms incorporated therein. Where a bond is given under the authority of a statute in force when it is executed, in the absence of anything appearing to show a different intention, it will be presumed that the intention of the parties was to execute such a bond as the law required, and such statute constitutes a part of the bond as if incorporated in it, and the bond must be construed in connection with the statute and the construction given to the statute.by the courts. Such a bond must be given the effect which, in reason, must have been intended by the statute. Whatever is included in the bond, and is not required by law, must be read out of it, and whatever is not expressed, and ought to have been incorporated, must be read as if inserted into it. Although the terms of the bond may bear a -broader construction, the liability of the parties will be confined to the measure of liability as contemplated by the law requiring the bond; but it will not be assumed that the legislative enactment intended to import to an instrument an effect different from that intended by the parties.” (9 C. J. page 34).
We think it clearly appears that the parties intended a statutory bond, and it was executed in all respects as required by the statute, except it was not approved by the clerk. Section 6914 does not provide for the making of the bond, but provides that, after the bond is made, such a bond shall be filed. If the bond was made by the parties in compliance with the statute, then the mere fact that they failed to file it with the clerk would not prevent it from being a statutory bond.
.All persons furnishing labor or material or doing work, who are intended to be protected by such statutory bonds, can, before performing labor or furnishing materials, ascertain whether a bond has been given by applying to the owner as easily as by applying to the clerk.
We do not deem it necessary to review the decisions cited and relied on by the parties in this case, because the only question is whether or not the bond in this case is a statutory bond. If it is, of course suit must be brought within six months from the completion of the improvement, and in this case suit was not brought within that time. We think it unnecessary to set out the testimony or te> decide the other questions raised and discussed by counsel. The conclusion reached that the cause of action was barred because not begun within six months makes a decision of the other questions unnecessary.
The decision of the chancery court is correct, and the decree is therefore affirmed. | [
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Smith, J.
The Jonesboro Trust Company, a hank-ing corporation under the laws of this State, sued W. S. Ellis to recover the sum of $1,875, with accrued interest, alleged to be due upon a promissory note payable to the order of the trust company, dated May 10, 1927, and maturing October 10, 1927.
The material facts in the case are covered by a stipulation of opposing counsel, from which it appears that in 1922 the State Bank Commissioner found and declared that the capital stock of the trust company had become impaired, and he ordered the bank to make a voluntary assessment of fifty per cent, on its shares of stock, failing which he advised that he would require a compulsory assessment of that amount. Pursuant to this requirement, the directors of the trust company passed a resolution reciting the necessity for the assessment and the opinion that it would be voluntarily paid “without the technical procedure required by law for the purpose of making and enforcing such assessments. ’ ’
It was resolved by the board of directors that a voluntary assessment of fifty per cent, be made, to be paid as follows: “(1) In cash, or (2) by the'execution of a note by the shareholders to the company for the full amount of said assessment, said note to be dated June 1, 1922, to mature June 1, 1923, and to bear interest at six per-centum from date until paid.”
The resolution of the directors further provided that, if shareholders owning seventy-five per cent, of the entire capital stock shall have complied with the terms of the voluntary assessment on or before June 1, 1922, then the cash or notes delivered thereunder should become the property of the trust company, to be used and employed by it as any other property it may own; otherwise they should not be used by the trust company until, through the making of a compulsory assessment as required by law, stockholders holding in the aggregate seventy-five per .cent. iof the capital stock (including in said computation cash and notes so delivered voluntarily) shall have met such assessment. It ■was further recited that, in case voluntary assessments on seventy-five per cent, of the capital stock shall have been complied with on or before June 1, 1922, the trust company should have until July 1, 1922, to procure the remaining stockholders to comply with the voluntary assessment; “and if, at the last mentioned date, any shareholder shall not have met said voluntary assessment, then a compulsory assessment shall he made in accordance with the laws of this State in such cases made and provided. ’ ’
Some of the stockholders paid the amount of their assessment in cash, while others, including Ellis, gave notes, instead of paying money. Ellis renewed his note at a higher rate of interest than that 'borne by the original note, hut default was made in the payment of both the principal and the interest on the renewal note, and this suit was brought to enforce its payment.
After making the voluntary assessment in 1922, it became apparent in 19'27 that the trust company was again insolvent, and it sold such of its assets to the American Trust Company, another banking institution, as the latter company would buy. Under the terms of this sale the American Trust Company paid all the depositors of the Jonesboro Trust Company in full, and it was agreed that the Jonesboro Trust Company should be indebted to the American Trust Company for a sum representing the difference between the agreed value of its assets actually taken over by the American Trust Company and the total of the debts assumed. This agreement left the Jonesboro Trust Company with a number of notes, which it is seeking to collect and apply to its debt to the American Trust Company, and the note of Ellis is among this number. The proceeds of the collection 'of the note will be turned over to the American Trust Company to apply on the debt of the Jonesboro Trust Company to it, so that, while the suit was brought by the Jonesboro Trust Company, it is for the benefit of the American Trust Company.
Ellis filed an answer, denying liability on the note, and alleged that the note was taken to satisfy the Bank Commissioner, and was not intended to be paid; but there appears to have been no attempt to establish this allegation. It was further alleged that the note had not been executed pursuant to an assessment under the statute; and that the note was without consideration. It was also alleged that the note was void under § 8 of article 12 of the Constitution and the decisions of this court construing this section of the Constitution. A decree was rendered granting the relief prayed, which included the setting aside of a deed conveying certain lands from Ellis to his sons. There appears to be no question that the deed was properly set aside if Ellis is, in fact, liable on the note.
It is true that the assessment in satisfaction :of which the original note of Ellis was given was voluntary in the sense that it was not made under the authority of the statute (§ 733, C. & M. Digest), as it might have been; but it does not follow from this that the note was without consideration. A condition existed which would have authorized the statutory assessment, and the voluntary assessment forestalled the statutory assessment. The payment of money and the execution of notes by other shareholders were in the nature of mutual promises, to the advantage of all parties concerned. Farmers’ Equity Coop. Assn. v. Tice, 122 Kan. 127, 251 Pac. 421; Farmers’ State Bank v. Fisher, 204 Iowa 1049, 216 N. W. 709; Bohning v. Caldwell, 10 Fed. (2d) 298; Union Bank of Brooklyn v. Sullivan, 214 N. Y. 332, 108 N. E. 558; Stern v. McDonald, 47 Col. App. 79, 190 Pac. 221; Farmers’ Coop. Union v. Reynolds, 127 Kan. 16, 272 Pac. 108. The note is therefore not without consideration. It appears that all the, notes have been paid except the one here sued on and a small balance on another note.
We are also of the opinion that the note is not void under § 8 of article 12 of the Constitution, which reads as follows:
“No private corporation shall issue stocks'or bonds, except for money or property actually received or labor done, and all fictitious increase of stock or indebtedness shall be void; nor shall the stock or bonded indebtedness of any private corporation be increased, except in pur suance of general- laws, nor until the consent of the persons holding the larger amount in value of stock shall be obtained at a meeting held after notice given for a period not less than sixty days, in pursuance of law.”
In construing this section of the Constitution it has been several times held by this court that a note given to a private corporation for the purchase price of corporate stock is neither money nor property actually received within the meaning of the Constitution, and that such a note is void, except in the hands of an innocent purchaser, as having been executed in violation of the Constitution. Bank of Commerce v. Goolsby, 129 Ark. 416, 196 S. W. 803; Bank of Dermott v. Measel, 172 Ark. 193, 287 S. W. 1017; Bank of Manila v. Wallace, 177 Ark. 190, 5 S. W. (2d) 937; Park v. Bank of Lockesburg, 178 Ark. 669, 11 S. W. (2d) 483. We have also held that a renewal note, as well as the original note, is subject to the same defense, for the reason that “both notes were given for the same illegal consideration. The renewal note is not a payment of the'original note, but is merely an extension of the time of payment of such prior note.” Bank of Dermott v. Measel, supra.
But the cases cited have no application here. In the first of these cases — that of Bank of Commerce v. Goolsby, supra — it was pointed out that: “The above plain provision of our Constitution is for the protection of .stockholders, as well as creditors and all who are interested in the financial affairs of private corporations. This wholesome provision of our Constitution is a guaranty to all who are financially interested in private business corporations, against the issuance of what is termed ‘watered stock,’ that is, ‘stock which purports to be paid in full but which, in fact, has not been paid for. ’ ’ ’
There was here no issue ¡or increase of stock or of indebtedness of the corporation in connection with the execution of the note. Ellis received no stock. His stock had been previously issued to Mm and had been paid for by him, and, instead of “watering the stock,” his note was intended to give it a value which it would not otherwise have had. Since the constitutional prohibition is directed against the issuance of “watered stock,” it cannot be construed to prohibit a stock assessment note executed to give value to stock already issued, paid for, and outstanding.
Section 8 of article 12 of the Constitution of Missouri is substantially identical with § 8 of article 12 of our own, and in the case of Scott v. Abbott, 160 Fed. 573, the Circuit Court of Appeals of the Eighth Circuit had occasion to construe the words “issue” and “fictitious” appearing in this section of the Missouri Constitution. It was there said:
“The word ‘issue’ here employed is obviously used in its ordinary commercial or financial sense, meaning ‘to emit,’ ‘put into circulation,’ or ‘dispose of securities’ already authorized and prepared for disposition. Black’s Law Dictionary; Century Dictionary; Folks v. Yost, 54 Mo. App. 55, 59. The word ‘fictitious’ employed in the Constitution is found in immediate connection with the prior provision relating to the issue of stock, and, by the most natural and familiar rule of construction, ought to be construed in connection with it; and as so construed it means, in our ¡opinion, that all increases of capital stock which are not issued for money paid, labor done, or property actually received, are fictitious and void. The record discloses that the shoe company disposed of or put into circulation much, if not all, of its increased stock. Such disposition, in our opinion, amounted to the issue of the stock within the contemplation of the constitutional provision.”
This definition of the word “issue” accords with our own definition of that word in the case of Stranahan v. Van Buren County, 175 Ark. 678, 300 S. W. 382, where we construed the constitutional amendment authorizing counties to “issue bonds.”
There was therefore no issue of stock to Ellis or fictitious increase of stock or indebtedness, and the con stitution-al inhibition has no application. Neither do the above-cited oases which have construed this section of the Constitution apply.
The decree of the court is correct, and it is therefore affirmed. | [
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Smith, J.
A decree was rendered December 18, 1936, on personal service, foreclosing a mortgage executed by W. B. Clarke, and Carrie L., Ms wife, to The Federal Land Bank of St. Louis. The mortgaged lands were sold, pursuant to this decree, by the commissioner appointed for that purpose, on February 6, 1937, to the land bank, and the report of this sale was duly made and filed May 25, 1937, and was approved and confirmed on the same day. Thereafter, and on the same day, the commissioner, in open court, acknowledged the execution of a deed to the bank for the lands which he had sold. The deed was approved, and it was ordered that the deed be filed for record, and it was duly recorded May 27,1937. Later, on a date not disclosed by the record before us, the bank sold and conveyed the lands purchased at the foreclosure sale to Leland Bunch.
On April 11th 'Clarke and wife filed ‘ ‘ Motion to cancel and set aside sale of lands, cancel and set aside deed made and executed to plaintiffs by commissioner.” This relief was asked on the ground that the commissioner’s “sale was not had and held in the manner and form required under the terms of the decree of foreclosure granted by this court on the 18th day of December, 1936. ’ ’
The foreclosure decree directed the commissioner to advertise the time, terms and place of sale for a period of not less than twenty days next before the day of sale, by at least three weekly insertions of the notice of sale in some newspaper published in Jackson county, in the chancery court of which county the decree had been rendered. It is contended that the notice of sale was published only twice, the first publication being made on January 14, 1937, and the second on January 21, 1937, and the proof of this publication was not verified as required by § 8784, Pope’s Digest.
The sale should, of course, have been advertised for the time specified in the decree of foreclosure, and the proof of publication of the notice of sale should have been verified. Had these objections, or either of them, been called to the attention of the court before confirming the sale, the court would, no doubt, have required proof that the notice of sale had been published for the time and in the manner required by the decree of foreclosure, and that proof of the publication be verified as required-by law. But no such objection was made before the confirmation of the commissioner’s report. Indeed, the objection was not made until after an intervening term of the court had been held and had adjourned. We conclude, therefore, that the objections now made have not been made in apt time. The defendant in the foreclosure suit had the right to interpose the objections he now makes against the confirmation of the sale; but he'shows no reason why these objections were not made prior to the confirmation of the commissioner’s report. The purpose and effect of the confirmation of the commissioner’s report of sale is to ascertain and adjudge whether the sale had been held in conformity with.the provisions of the decree of foreclosure and of the law relating to sales thereunder. The decree of confirmation imports a finding that the terms of the decree and the provisions of the statute were complied with, and objections made thereafter, which offer no reason why they were not made before confirmation, come too late.
The purported proof of publication appearing in the record shows that the first'publication of the notice appeared more than twenty days prior to the sale. It does not appear that there was no other evidence as to publication. Other proof as to the publication of the notice may have been offered upon considering the confirmation of the commissioner’s report. Such testimony would have been competent. Whitford v. Whitford, 100 Ark. 63, 139 S. W. 653; Allen v. Allen, 126 Ark. 164, 189 S. W. 841; Mahan v. Wilson, 169 Ark. 117, 273 S. W. 383; Straughan v. Bennett, 153 Ark. 254, 240 S. W. 30.
It is true also, as a general proposition, that a decree of confirmation cures any irregularities in the conduct of a sale, if the court, in the first instance, might have authorized the sale to be held in the manner in which it was in fact conducted. Section 394, Chapter Mortgages, 19 R. C. L., page 581. Moreover, “It has been decided by this court that a confirmation of a judicial sale is a final decree from which an appeal may be prosecuted.”. De Yampert v. Manley, 127 Ark. 153, 191 S. W. 905. There was no appeal from this decree, and the motion to vacate it ivas not filed until nearly a year after its rendition.
The court dismissed the motion to vacate as being without equity, and as that decree appears to be correct it is affirmed. | [
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N. MARK KLAPPENBACH, Judge
hTegan Dowdy appeals the Crawford County Circuit Court order' terminating her parental rights to her three children. Dowdy argues that the circuit court clearly erred in finding sufficient proof of grounds for termination and in finding that termination was in the children’s.best interest. We affirm.
Four-year-old JW, three-year-old AD, and nine-day-old TA were taken into custody by the Department of Human Services (DHS) in December 2015. A protective-services case had been opened in June 2015 after it had been determined that Dowdy’s boyfriend had caused marks on AD’s. legs. Both Dowdy and her boyfriend tested positive for THC and were offered services, but they did not participate. In October 2015, there was a report that Dowdy had slapped JW in the face, leaving a handprint. Prior to TA’s birth, Dowdy had been evicted from her home and was staying with friends. The home she brought TA to from the hospital was inappropriate due to dog feces around the house and the lack of a crib. | ¡JW and AD had been living with Dowdy’s father and his wife since June 2015, but Dowdy had threatened to take them and DHS believed she would flee. .
The children were adjudicated dependent-neglected in January 2016 due to parental unfitness and neglect. The court specifically noted Dowdy’s use of illegal drugs and thé hazárdous home environment, and it found that Dowdy had physically abused JW. Dowdy was ordered to complete certain services and to obtain appropriate housing, employment, and transportation. After an April 2016 review hearing, the court found that Dowdy had completed a drug-and-alcohol assessment and a psychological evaluation, but she had attended only seven out, of twenty-six parenting-without-violence classes. The court found that she remained in the same inappropriate living situation and lacked adequate income and transportation. Following a second review hearing three months later, the court found, that Dowdy had made no further progress on her case plan. At that point, she was living with friends in Oklahoma. The circuit court changed the goal of the case to adoption following a November 2016 permanency-planning hearing in which the court found that Dowdy had not complied with the case plan or court orders.
• The termination hearing1 was held in February 2017. The evidence established that-Dowdy was homeless, jobless, and incarcerated. Dowdy testified that-she was incarcerated in the county1 jail-after having been arrested oh three failure-to-appear warrants stemming from driving tickets, including driving with a suspended license. She said that she had given up her car due to these legal troubles and planned to get a bus pass for transportation. She ^testified that she had contacted someone about working at. the chicken plant and had made plans to apply for an income- based apartment but was arrested before she could do so.
Dowdy had completed a psychological evaluation and a drug-and-alcohol assessment but had not completed the recommended treatment. The drug-treatment facility would not accept Dowdy while she was taking a benzodiazepine. Dowdy said that she was prescribed this medication to treat depression, and she declined to quit taking it because it was the only medication that had helped her after having tried several others. Dowdy said that she had recently made a down payment to start classes at a treatment facility in Oklahoma, but she then decided to return to Arkansas. She testified that she had completed parenting-without-violence classes and turned in a certificate to DHS, but the caseworker, K.C. Oliver, testified that she never received the certificate. Dowdy denied having slapped JW in the face and said that she could not name offhand anything she had learned from the classes.
Dowdy testified that she could “have everything together” and be in a position to take custody of the children if the court would give her four weeks from the time she is released from jail. When asked what had changed to allow her to accomplish these things now when she had failed to act over the course of the past year, Dowdy said that she had stopped listening to family and friends who thought they knew what was better for her. Oliver testified that all of the children were happy and healthy and had no barriers to adoption. TA’s foster parents wanted to adopt her.
|4The circuit court announced from the bench that it was terminating Dowdy’s parental rights, stating that any plan for rehabilitation that would enable reunification within a reasonable time was not viable or believable based on Dowdy’s current circumstances. In its order, the court found that four statutory grounds for termination had been proved. TA’s father executed a consent to the termination of his parental rights, but the court denied DHS’s petition to terminate the parental rights of Zachary Wright, JW and AD’s father.
The standard of review in appeals of termination-of-parental-rights cases is de novo, but we reverse a circuit court’s decision to terminate parental rights only when it is clearly erroneous. Hernandez v. Ark. Dep’t of Human Servs., 2016 Ark. App. 250, 492 S.W.3d 119. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a distinct and firm conviction that a mistake was made. Id. In deciding whether a finding of the circuit court is clearly erroneous, we give great deference to the superior opportunity of the circuit court to observe the parties and to judge the credibility of witnesses. Wafford v. Ark. Dep’t of Human Servs., 2016 Ark. App. 299, 495 S.W.3d 96.
The circuit court must find by clear and convincing evidence the existence of one or more statutory grounds for termination and that termination is in the best interest of the children. Id. Dowdy contends that the evidence is insufficient to support any of the four statutory grounds found by the circuit court. We disagree and affirm on the “subsequent factors” ground. This ground is proved when other factors or issues arose subsequent to the | ^filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevent the placement of the juvenile in the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) (Repl. 2015). Dowdy argues that the issues of drug use and housing instability cannot be considered “subsequent factors” to prove this ground and that DHS failed to offer appropriate family services to assist her with these issues.
The condition of the home Dowdy was living in with her infant, her drug use, and her physical abuse of a child were all factors that led to the removal of the children from her custody. Subsequent to the filing of the petition for dependency-neglect, Dowdy was ordered to have appropriate housing for the children, employment to support the children, and transportation. At the termination hearing, the evidence established that Dowdy was homeless, jobless, lacked transportation, and was incarcerated. There was testimony that Dowdy had been staying at a day-treatment center, and she had given up her car due to legal troubles. Although Dowdy testified that she had recently started making plans to obtain a job, transportation, and. an apartment, her testimony indicated that there had been nothing that stopped her from acting sooner. She was first ordered to accomplish these tasks more than one year earlier and again in each subsequent order. Her failure to act to secure appropriate housing and stable employment and her indifference to remedying the situation |fiare contrary to the children’s health, safety, and well-being and support termination of her parental rights. See Spencer v. Ark Dep’t of Human Servs., 2013 Ark. App. 96, 426 S.W.3d 494. The circuit court found in prior hearings that DHS had made reasonable efforts to provide services, and Dowdy fails to indicate which services could have prompted her to apply for a job and an apartment at an earlier date. See Martin v. Ark Dep’t of Human Servs., 2017 Ark. 115, 515 S.W.3d 599 (affirming where appellant did not indicate which particular services DHS could have offered him that would have prevented him from choosing his children’s abuser over his- children).- From our de novo review, - we 'hold that the court’s finding on this ground is not clearly erroneous.
In addition to at least one ground supporting termination, Arkansas Code Annotated section 9-27-341(b)(3)(A) requires a finding by clear and convincing evidence that termination is in the best interest of the juveniles, including consideration of the likelihood that they will be adopted and the potential harm caused by returning custody of them to the parent. Our appellate review }s limited to whether the circuit court’s best-interest finding was clearly erroneous. Hernandez, supra. Dowdy argues that termination was not in the children’s best interest because JW and AD were placed with their grandparents at the time of the termination hearing, and the rights of their father had not been terminated. She complains that the best-interest analysis failed to consider the effect £he termination decision would have on the relationship between the maternal grandparents and the children. Dowdy also argues that TA should be placed with the other children and that granting her more time 17would have provided an opportunity to reunify all three children.
After the permanency-planning hearing and before the termination hearing, JW and AD were placed in the temporary custody of Dowdy’s father and his wife, with whom they had previously lived for several months. At the conclusion of the termination hearing, however, DHS argued to the court that custody should be removed from them immediately based on evidence that Dowdy’s father had previ ously pleaded guilty to the sexual assault of a minor in his home. The matter was not immediately resolved. ■
Dowdy cites Caldwell v. Arkansas Department of Human Services, 2010 Ark. App. 102, in which we held that the termination of the father’s rights endangered the child’s relationship with her paternal grandmother, which the circuit court found to be the most stable influence on the child. Here, however, the children’s future relationship with their grandparents was uncertain based on the evidence submitted by DHS. Furthermore, in Caldwell, the child had already been returned to the custody of .her mother. Here, although the court found that DHS had failed.to present sufficient proof to terminate the rights of JW and AD’s father, the children were not placed with him. In fact, he testified that he had not seen the children in four and a half years. Unlike in Caldwell, the circumstances here do not demonstrate that the best-interest finding was clearly erroneous. The ■ children’s need for permanency and stability overrides a parent’s request for additional time to improve, circumstances, and courts will not enforce parental rights to the detriment of the well-being of the child. Fuls v. Ark. Dep’t of Human Servs., 2017 Ark. App. 46, 510 S.W.3d 815. |sDowdy’s argument regarding placement of TA was not preserved. See Ware v. Ark. Dep’t of Human Servs., 2016 Ark. App. 480, 503 S.W.3d 874.
Affirmed.
Gladwin and Harrison, JJ., agree. | [
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Baker, J.
This suit originated in the chancery court when the Home Insurance Company of New York filed an action to cancel a policy of insurance issued to appellant, covering property in the town of Gravette, Arkansas.
The defendant, Newt Garmon, answered plaintiff’s complaint and filed a cross-complaint, alleging destruction of property by fire and asking for recovery of the amount of insurance. The. insurance company filed an answer to the cross-complaint. Upon trial of the case the trial court dismissed both the complaint and cross-complaint and decreed that the cross-complainant, Gar-mon, take nothing by the suit and adjudged costs against each of the parties, that is to say, that each should pay costs that had accrued by reason of his own. action in the suit. The. plaintiff did not appeal from this decree of the court, but the defendant, Newt Garmon, has prayed an appeal.
It is insisted by appellant that since the complaint was dismissed the only question that remains in the case is the one arising out of the charge by the insurance company that Garmon, appellant, burned his own house. While we do not agree to this statement, it is perhaps not vitally essential that we discuss any other particular matter on this appeal.
As a defense to the cross-complaint it was pleaded, first, that the agent writing the insurance acted without authority; second, that the policy was fraudulently obtained; and, third, that the insured burned the property and, therefore, had no right to recover.
There is a serious question, arising out of the manner in which this policy was issued as disclosed by evidence in relation to the authority of the agent of the insurance company, and.this testimony is restated here, not solely for the purpose of determining the particular power or authority .of the agent to issue the policy, but rather as a part of the facts and circumstances offered as proof tending to establish the fraudulent procurement.of the policy and the wrongful destruction of the property. ■
The property was an old frame two-story building in the town of Gravette, somewhat removed from the center of active business. We are told that when it was-first built it was intended for use as a private school. We do not know, and it makes no particular difference, whether it was to be used as a school or dormitory, for that was so long ago that it was no longer recognized as a school building, but was, at the time of its destruction, known as the “Old Opera House.” It seems to have gotten that name by reason of the fact that after it had ceased to be used for a school property it became a show-house or theatre building for the local community. Its usefulness in that respect, however, had long since ceased, and at the time of the fire a part of one of the larg-e downstairs rooms had been cut off, or partitioned, one side of which was used as a station for the delivery of cream. The tenant payed five or six dollars a month rental therefor. In another small corner room there was a small barber shop in which two barber chairs had been placed. The tenant of this portion paid $5 per month for his rental. The upstairs portion was occupied only by the policyholder. He was unmarried, had some photographic paraphernalia and materials located therein. He had one or two heating stoves, a cook stove and some clothes there. A part of the ground floor had been fixed for use as a garage, but was no longer so occupied; however, appellant had stored therein an old Star car, which he says was of the approximate value of $25.
The evidence seems, or at least tends, to establish the fact that appellant was crippled so that he could not get about very well; that he was sometimes in poor health and although he claimed this property as his actual home or place of residence, he frequently went to the home of his sister .at Decatur about nine miles away where.he might have her nursing on account of his incapacity to wait upon and care for himself.
Mr. Garmon was at the home of his sister the night this property was burned. There is not much dispute about the fact that he left the property, which he claimed as his home, between five and six o’clock, when it was getting dark. A little later he was at Decatur. His sister, brother-in-law and one visitor testified that he had supper there. In fact, some of them testified that he was there at eight or nine o’clock when they retired and was there next morning. Whether he remained there during the entire time after he first went to the house at about dark is not extremely important in this case and the evidence in that regard is in conflict. There are one or two witnesses who say that a few minutes prior to the time when the fire was discovered, his car was seen parked at this building where the fire occurred. This evidence is not at all unreasonable although it is contradictory of some witnesses who, at least, left the impression, if they did not say positively that he was at the home of his sister nine miles away.
Mr. Garmon was called as a witness by the insurance company. He was examined carefully, and later was recalled in his own behalf when he testified again. It may be said in regard to his testimony, both in his examination in chief and when he was cross-examined, that his testimony was very unsatisfactory, extremely evasive and very little of it was of any very great value in establishing any particnlar fact except his desire to recover the full amount of the insurance evidenced by the policy which called for twenty-eight hundred dollars ($2,800) on the building, and for one hundred dollars ($100) on personal property. He did not even want to produce his deed to the property, which he had obtained perhaps about two weeks before the fire. It appears .that the deed was dated March 7th and was given him by a man who lived in Oklahoma, and who had formerly lived in Gravette and Mr. Garmon received it a day or two later. He had not placed it of record at the time he got the insurance policy which was issued by the agent of the insurance company at Decatur on the 23d day of March, 1936, about eight or nine o’clock a. m.
On the same day on which the policy was issued, at about nine o ’clock that night the property was destroyed by fire. This was only a few minutes after Garmon’s car had been seen at the building.
The evidence offered in regard to this agent’s authority was to the effect that in the town of Decatur where he lived he had the right to countersign and deliver policies, but in the vicinity or surrounding country he had only the right to accept applications and forward them to the company which would issue the policy if it approved the risk.
The evidence shows that insurance agents are furnished descriptive lists of property in the community in which they are authorized to act. It seems that these lists consist of serial numbers applicable to each piece of property and of other numbers by which insurance agents and others engaged in that business describe the property the subject of the insurance. In this case the agent ■who issued this particular policy had no such descriptive list or serial numbers of properties in Gravette where .this property was located. He had seen the property, knew its location and appearance.
Evidence of insurance agents in Gravette, two of whom testified, is to the effect that Garmon had applied to each of them for insurance, but. they did not accept his application or write insurance on this property, but oné of them gave him the serial number and other descriptive numbers of this property and a statement as to the rate on the property and also the rate on the personal property located therein. Garmon denied that he applied to these men for insurance, but admits that he obtained from one- of them these descriptive numbers and rates, which he took to the agent of the Home Insurance Company of New York at Decatur and procured from him the policy with these descriptive numbers written therein and upon the rates given him by the agent at Gravette;
While this case may be distinguished from a recent decision in regard to the authority of agents and acceptance of applications, (Security Insurance Co. v. Van Norman, 195 Ark. 200, 111 S. W. 2d 561) we think it unnecessary to discuss or settle that question in view of other conclusions upon which we have all agreed. There are some other facts in this case which should be stated and an effort will be made to give details of principal matters in controversy.
The testimony shows that Garmon admits that he was at the property between, five and six o ’clock in the afternoon; that he bought some kerosene and took it to his rooms in the building. He says it was for use in Ms cook stove. According to Ms own statement, he left the building almost immediately after he delivered the kerosene there, and went to the home of his sister where he ate snpper.
The town marshal, who said he had been watching the building, because he was afraid it would burn, is perhaps better able to explain what occurred at the time the' fire started than any one else. He was going along a street of Gravette, going toward this building and not far away, when he observed a small flame, at, or about the window sill. He said this flame seemed to go under the window sill and fill the entire room with a flash as of burning gasoline or kerosene. It is argued by appellant that after dark even the lighting of a match or candle-would light up the entire room, but that is not the description of the occurrence as made by the marshal, nor is there any suggestion of the agency striMng the match.
Although the fire burned slowly and took considerable time to break through and get to that part occupied by the cream station, the owner of that station says that portion of the building was so filled by some form of gas that it was impossible for him to enter and save his property. The owner of the barber shop was able to enter and remove practically all of his property. At the place where the barber shop was located there was no complaint of this gaseous condition.
The insurance company made an attempt to establish the fact that.its agent had been drinking very heavily about two weeks prior to this fire and on account of his condition in this regard he was unable to enter into any form of valid contract whereby either he or the company might be bound. Two men who were sureties for the agent of the insurance company testified in regard to this fact. The appellant answers this testimony by stating, more in the nature of an argument than conclusion of fact, to the effect that he was present while the insurance agent wrote the policy of insurance for him upon a typewriter. He argues that inasmuch as the policy is in evidence and'that the typewritten part, or portion thereof, is practically perfect, it is evidence within itself that the insurance agent was not at all incapacitated. There are other facts which will he mentioned later. We are unable to say as a matter of law that when an insurance agent is able to write and deliver a policy of insurance he is capable of making’ a contract. Nor can we say as a matter of experience to what extent a man must be intoxicated to be unable to bind himself or his company, particularly under such circumstances as appear in this record.
Whatever may be the facts in this regard, it is undisputed that the appellant, Mr. Garmon, had bought this old dilapidated building outside the active business district of the town of Gravette, discarded as it was from any of the uses that had been made of it, such as a school or dormitory, or theatre building, or even garage. There is no doubt about the preponderance of the evidence in establishing, the value of the building. It is fair to say that one .witness for appellant testified that he is a contractor and he had made estimates of the value of the building material and labor for replacement of the building and fixed that sum in excess of five thousand dollars. Garmon himself finally admitted that five hundred dollars was the amount he was to pay for the house and lot altogether. He testified that he had at one time paid one hundred dollars, and another time two hundred dollars, and still owed two hundred dollars of the original contract price. He denied that he owed any part of this on this building for the reason, he said, the remainder, or last two hundred dollars was secured by a mortgage on a piece of farm property that he owned and upon which the house had been burned during his ownership, exactly two years prior to the fire that destroyed the building in controversy.
This extensive review is taken from more than 150 pages of appellant’s abstract of evidence. The trial court made no special finding’s of facts. For that reason we have stated matters on all issues.
Appellant admits that the insurance on personal property did not cover his photographic materials, or the Star car which he says was in the. building when it burned.
It must be said that the determination of the rights of the parties here rests upon the decision of questions of fact rather than upon propositions of law. We think the trial court might well have found there was fraud in the procuring of this policy upon property worth less than one fifth of the amount of insurance, or that the insurance contract was corruptly collusive. However, we hesitate to believe that condition prevailed. We also hold that if the defendant did not himself set fire to and destroy, the house the circumstances in proof tend to establish, at least, a plan and design to profit greatly, more than five-fold, at the expense of the insurance company, whose premium had never been paid and was not tendered until some days after the fire. The fact that a policy had been issued was not reported to the insurance company prior to the report that the property had burned.
It is argued forcefully that the testimony of the witnesses who say that Garmon’s car was parked at or near the building only a short time before the fire was discovered should not be believed. The witnesses who testified to that fact had no interest in this litigation. They testified positively and directly, like business men who had only a desire to tell the truth as compared to the statements, or answers of Garmon, who was pert, indirect, evasive, intentionly secretive and impolite, if not contemptous toward counsel.
Why may not the court have properly decided these issues against him? The trial court knew, as Ave do, that he need not necessarily have been personally present at the time the flash of fire indicated the building was marked for destruction. He had at stake more than five times the value of the property he had not paid for according to the record. It appears that he alone was interested in its destruction.
It is, also, argued that the so-called valued policy provision of our statutes, which prevents the insurance company from reducing loss claims on real property destroyed by fire, makes it improper for us to consider that matter here. Popé’s Dig., § 7720. We do not think so. The question under consideration is not the amount of insur- anee, but whether there was any insurance at all. If we should take appellant’s view, the beneficent effects of the statutory valued policy provision of insurance policies on real property could be converted into a camouflage to conceal and protect fraud and crime.
This case, like others resting solely upon facts presented, must be determined according to the findings justified by the record. Recently we have had several similar controversies for decision. In these we reviewed the findings and decisions of the trial court and announced our holdings accordingly. Attention is called to the Homestead Fire Insurance Company v. Russell, 186 Ark. 1197, 53 S. W. 2d 584. In that-case this court felt justified in going further than the trial court and held that the preponderance of evidence showed that Russell was responsible for the fire. So, also, in the case of Rankin v. National Liberty Insurance Co., 188 Ark. 195, 65 S. W. 2d 17, this court affirmed the verdict of the jury which had determined the responsibility of the fire in that case. In a still more recent case of Hill v. Mass. Fire & Marine Insurance Co., 195 Ark. 602, 113 S. W. 2d 104, this court affirmed the decision of the chancellor who held that a transfer of property to procure insurance was fraudulent and that the owner himself destroyed the property.
While the foregoing cited cases are not particularly referred to as precedents, they indicate the office of the court in the settlement and determination of the rights of the parties according to principles of jnstice rather than technical or. assumed positions which apparently warrant unfair recoveries.
The plaintiff in low.er court did not appeal. Appellant has shown no right of recovery. The decree of the chancellor is, therefore, affirmed. | [
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Hxjmphebys, J.
This is an appeal from judgments rendered on February 23, 1940, in favor of Flora Eamey for $2,000 and in favor of W. R. Eamey in the sum of $1,200 in a suit brought by them against appellant in the circuit court of Franklin county on November 14, 1939, for injuries which each received through the alleged negligence of appellant in operating his automobile on highways Nos. 64-71 south of the Fort Smith-Yan Burén bridge in Sebastian county so as to strike the automobile in which appellees were riding and injure them.
After suit was filed and service had upon appellant he appeared specially in court and filed a motion to quash the service of summons upon him on the ground that he was a resident of the city of Fort Smith, that appellees were residents of Crawford county, that the accident occurred in Sebastian county, and that the venue was not properly laid in the Ozark district of Franklin county where the suit was brought. He alleged in his motion that while he was in Ozark in Franklin county for the purpose of delivering an address at a banquet summons was served upon him; that apprehending he might be sued while in Franklin county he was induced to remain and deliver the address by a statement of the circuit clerk that his office had been closed for the night, and that no suit had been filed and none would be filed that night, so he remained after receiving such assurances from the clerk, and for that reason the summons should be quashed. Appellant introduced evidence to sustain the allegations contained in the motion, but there is a total absence of any evidence connecting appellees or their attorneys with the assurances given by the circuit clerk to appellant. There is no evidence to show that there was any connivance between appellees or their attorneys and the circuit clexdc to induce appellant to remain in Franklin county to deliver his address at the banquet.
Under the law as it existed when appellees were injured and at the time of the trial of the- ease a transitory suit for personal injuries might be brought in any county where service of summons could be obtained upon a defendant. Appellant has cited a number of cases of our own court to the effect that even under the law as it existed a person seeking to recover damages from another could not inveigle the other into a county other than that of his residence and through such -fraud procure service upon him, but none of the cases cited are authority for quashing the service of summons unless the party bringing the suit was a party to the fraud or conspiracy-. The trial court, therefore, properly overruled the motion to quash the service of the summons.
The defenses to the alleged cause of action consisted in a denial that appellant was negligent in the operation of his automobile resulting- in the injuries to appellees and a plea of contributory negligence on the part of appellees.
The record reflects that about eleven o’clock a. m. on May 17, 1938, appellees were riding in an automobile on highways Nos. 64-71 about a quarter of a mile south of the Fort Smith-Yan Burén bridge, which runs north and south; that the concrete highway was about forty feet wide; that after leaving the bridge en route to Fort Smith they decided to stop at Massey’s Auto Salvage Place about a quarter of a mile south of the bridge; that Massey operated a second-hand car and salvage business on the east or left-hand side of the highway traveling south, and that a gravel driveway leads from the main highway to his place of business; that Flora Ramey was driving the car, and that she began to slow down and signal about one hundred yards before reaching Massey’s place of business that she was going to cross the concrete highway into the gravel road that led into Massey’s place of business; that while signaling and after turning- slightly to her right so as to permit the cars immediately in front of her and immediately behind her to pass she continued to give the warning signal as she proceeded across the concrete, and after crossing-same and getting on to the gravel road appellant’s car ran into and struck their car; that as she turned to her left to cross the highway into the gravel road she observed appellant’s car about two hundred yards back of her, and said that he must have been driving his car at a terrific rate of speed to strike her car so soon after she had seen his automobile; that before the impact appel-lees had crossed over the concrete pavement and were on their side of the road when they were struck by appellant’s automobile. A witness who was working at the Massey place of business testified that appellant was traveling at the rate of about sixty miles an hour as he approached and ran into the Ramey car.
Appellant testified that when he was driving off the bridge on to the highway which was running south he was traveling at the rate of about forty miles an hour, and that he discovered appellees’ car about a block or three hundred feet ahead of him driving about the same rate of speed, and that he did not see any signal coming from the car of appellees indicating that they were going to cross the highway, and that when he was about forty feet behind appellees’ car he turned to the left in order to pass them after sounding his horn; that appellees did not stop their ear, but suddenly turned their car to the left in front of him, and that he ran into their car as they entered the gravel road leading to the' Massey place.
On cross-examination he testified as follows: “Q. How far was that car ahead of you when you first saw it? A. Maybe a block, 300 feet. Q. 300 feet ahead of you? A. Yes, sir. Q. 100 yards? A. Yes, sir. Q. As you went down toward the Massey salvage place down there, what distance did it maintain ahead of you ? A. "We were going about the same speed. Q. You were going about the same speed. A. Yes, sir. Q. It continued on ahead of you at about the same speed, about a block ahead of you? A. It was some distance ahead of me, I want to be honest about this thing. Q. I thought you were going to be. A. It might have been less than a block. Q. And it might have been more! A. I doubt it. Q. If it was less, how much less! A. I couldn’t say, I didn’t measure the distance. Q. Was it a half a block! A. I couldn’t say. Q. Was it a third of a block! A. I couldn’t say. Q. Was it a tenth of a block! A. I couldn’t say. Q. Was it a twentieth of a block! A. I don’t know what that is, it was a reasonable distance ahead of me.”
In addition to contending that the service of summons should have been quashed by the trial court appellant contends that the judgments should be reversed because they were guilty of contributory negligence as a matter of law; that the court erred in giving appellees’ requested instruction No. 2; that the court erred in giving' appellees’ requested instruction No. 3; that the court erred in permitting prejudicial argument by appellees’ attorney, Mr. Partain, and that the verdicts were excessive.
(1) We cannot agree with learned counsel for appellant that the undisputed evidence shows that appel-lees were guilty of contributory negligence, and that the trial court should have declared as a matter of law that they were. According to the testimony of appellees, a signal was given some three hundred feet before they reached the Massey place that they intended to cross the highway for the purpose of entering same; that in order to do so they turned slightly to the right to allow a car in front of them and one in the rear of them to pass and then continued to give the signal that they were going to cross said highway and did so having observed that appellant’s car was some two hundred feet behind them; that after they had succeeded in crossing the concrete pavement appellant turned to the left, crossed the highway and ran into their car. If this testimony was believed by the jury appellant was guilty of negligence in crossing the highway and running into their car. A disinterested witness who was working at the Massey place of business testified that appellant was driving at a high rate of speed, perhaps sixty miles an hour, as he approached and ran into appellees’ automobile.
It is true that appellant testified he was driving at a conservative rate of speed and that appellees suddenly turned their car in front of his car as he was about to pass them after he had blown his horn, and that the collision was due to their contributory negligence in doing so, but the jury by their verdict adopted the version of the affair given by appellees and not that testified to by appellant.
To say the least of it the evidence was in sharp conflict on the question of contributory negligence. This issue was submitted to the jury for determination and their verdict is conclusive as the evidence upon the point was in sharp conflict.
It cannot be said, therefore, that as a matter of law appellees were guilty of contributory negligence.
(2) Instruction No. 2, given at the request of appel-lees, was objected and excepted to. It is quite lengthy, and we do not incorporate it in this opinion. We have read it carefully and think it submitted the issues of negligence, contributory negligence and injuries clearly and specifically in language very understandable. ' We do not think it was abstract in any sense. It is said that it contained ho mention of appellees’ stopping their car on the right-hand side of the road before giving the signal and attempting to cross -same. Appellant testified himself that they did not stop. Appellees’ testimony was to the effect that they simply stopped for the moment at the time they were signaling that they would cross the highway to allow a car immediately in front of them and one immediately behind them to pass and then continued to signal and cross over the pavement.
The court did not err in giving this instruction.
(3) Appellant objected and excepted to the giving of instruction No. 3, which is as follows: “You are instructed that it is the law of the road that the automobile in front has the superior right to the use of the highway for the purpose of leaving- it on either side to enter intersecting- roads and passageways and the traveler behind must, in handling his car, do so in recognition of the superior right of the traveler in front.”
This instruction follows the rule laid down in the case of Madison-Smith Cadillac Co. v. Lloyd, 184 Ark. 542, 43 S. W. 2d 729, and we think this rule is applicable to the facts in the instant case. The short or temporary stop that Flora Ramey made to allow two cars close to her to pass did not in any sense amount to a parking or stopping on the roadside. It was a momentary or temporary stopping and a thing* she had to do before she could continue the turn to the east side of the road she was making. As stated above, appellant himself testified that she did not stop. The momentary stopping of her car did not relieve appellant who was traveling behind her of taking notice of the movement of her car or of the signals being given by her. She had the superior right to the use of the highway in the turning movement of her car, and it was the' duty of the appellant in handling his car to do so in recognition of the superior right of appellees. It was a correct instruction.
(4) Appellant contends for a reversal of the judgments on the ground that the court permitted appellees ’ attorney to make unwarranted and prejudicial arguments to the jury in closing the case. They say that in closing the case he indulged in “repeated denunciations of the manner in which appellant conducted the defense and the professional ability and integrity of Dr. Foster, a witness for appellant in the case.”
Nearly two years after the injuries occurred Dr. Foster, at the request of appellants’ attorneys, made an examination of appellees, and in the course of the examination Mrs. Violet Wakefield, a technician at the Cooper Clinic in Fort Smith, made a blood test of them, and this test showed a four plus Wasserman as to Mrs. Ra-mey. Dr. Foster testified that, based on the test, Mrs. Ramey must be afflicted with syphilis. His exact language was that: ‘ ‘ There is only one conclusion that you can draw whenever you get a four plus Wasserman; the conclusion is that the patient must have syphilis. ’ ’
On cross-examination the doctor admitted that he did not know and had no basis of knowing whether she had it or not.
He also affirmatively answered the following question: . “And isn’t it a fact, doctor, that the "Wasserman test often may be positive occasionally when a person hasn’t even a symptom of syphilis?” Other inconsistencies appear in his testimony.
In his closing argument Mr. Partain criticized the testimony of the doctor on account of the inconsistent statements therein and deplored the fact that such testimony should be resorted to in order to question the virtue and good standing of Mrs. Ramey. • We do not think the argument, under the circumstance, had the effect of prejudicing the rights of appellant.
In view of the fact that the jury found appellant was negligent; that appellees were not guilty of contributory negligence, and that they were warranted in finding that both were seriously and permanently injured, it cannot be said the verdicts were excessive or that the amounts fixed were the result of passion and prejudice induced by the closing argument of Mr. Partain. The court did not abuse his discretion in permitting the arguments to be made.
(5) Appellant finally insists that the verdicts for the sum of $2,000 for Flora Ramey and $1,200 for W. R. Ramey were excessive allowances by the jury.
It must be remembered that the $1,200 verdict in favor of W. R. Ramey included the damage to his car and their doctor’s bill, leaving a little over $940 for the injury he received.
The extent of injuries like any other fact is for the jury and when supported by any substantial testimony the verdict should not be set aside or reduced. This court said in the case of Humphries v. Kendall, 195 Ark. 45, 111 S. W. 2d 492: “It is just as much the province of the jury to determine the extent of one’s injuries, and the amount of damages, as it is to determine the question of liability. His injury, pain and suffering-are purely questions of fact, and should be left to the jury to determine. What can the judges of this court know about the condition of the appellee or the credibility and weight of the evidence of the witnesses?”
In. that case this court quoted with approval from the case of Coca-Cola, Bottling Co. v. Cordell, 189 Ark. 1132, 76 S. W. 2d 307, as follows: “The amount of damages to be awarded for breach of contract, or in actions for tort, is ordinarily a question for the jury; and this is particularly true in actions for personal injuries and other personal torts, especially where a recovery is souglrt for mental suffering-.”
Mrs. Ramey testified that she received injuries to her chest, to her head, and that her neck was wrenched, and that her knee was fractured. She testified that the injuries she received were very painful and caused her to give up her profession as a teacher, from which she earned an average of $450 per year. She was sustained in her testimony by that of Dr. John_M. Stewart who waited upon her immediately after the injuries and who had attended her as a physician subsequent to that time up until the trial of the case. His testimony was to the effect that she had received permanent injuries.
W. R. Ramey testified that the automobile in which they -were riding was damaged in the sum of $150, and that his medical bills for Dr. Stewart for himself and wife were. $135; that he had to rent out his farm and employ a man at an expense of about $60 a month to run his trucking business; that the injuries he received were painful, and that he had been unable to stoop down and do any heavy lifting since his injury, and that his injury to his back was permanent and his testimony was confirmed by Dr. Stewart who attended him and had been attending him from the date of the injury until the date of the trial.
It is true that this testimony was disputed by Dr. Foster nnd Dr. Thompson. In other words, the testimony of the witnesses relative to the injuries received and the extent thereof was in sharp conflict.
We think under all the circumstances that the amount of verdicts rendered by the jury were supported by substantial evidence.
No error appearing, the judgments are affirmed. | [
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Smith, JV
Mrs. Henry Ravenscroft of California appears to be devoting her time and fortune in a national way to aiding local humane societies in the protection of dumb animals, and especially dogs. She made a substantial donation to the humane society at Tex-arkana to be used in building and providing'shelter for unfortunate dogs. Mrs. Oliver Dreyer of Texarkana procured the donation. Mrs. Della Carr Bailey of Fort Smith, who is interested in work of this kind, visited Mrs. Dreyer and sought her intervention with Mrs. Ravens-croft to secure a donation to promote a similar work in her home town of Fort Smith. Mrs. Bailey sought also the aid of Mr. R. C. Craven who is the Regional Direc tor of the American Humane Association and who travels extensively over the country in the interest of humane work.
In response to a letter from Mrs. Bailey, Mrs. Rav-enscroft wrote a reply in which she stated that her mother had left her some money which she had put in trust for animal purposes. Mrs. Ravenscroft further wrote: “I have got to write you fully of my wishes. I am inclosing check for $6,000 with the following instructions: You are to deposit the check in the name of your society, asking the bank not to tell anyone. You are then to get the land free and in the name of your society for life. Be sure it is in a central position and not low. lying ground and easily accessible and will not have to be moved at some future date, as this must be permanent.
“I would like your society to use $5,000 on a fireproof shelter, Spanish architecture as much as possible. (I am inclosing some views of a small hospital and pound in this state.) Will you return the pictures as soon as possible? You will have to get in writing from the city that they will turn over the license money for running the shelter and help you in every way possible. This has been done in all other places. By benefits, etc., sums' can be had for running expenses. In your by-laws you will have to have inserted a clause saying that no animal can be taken from the society for vivisection or experimental purposes. This is very important. The remaining $1,000 is for a small animal ambulance.”
It was then directed in the letter that when the shelter was completed, a memorial plaque should be placed thereon reading: “In Memory of Ellanor and Sanborn Doe San Francisco,” and that a similar plaque should be placed on the ambulance.
The letter proceeded further to say: “I am sure you will do everything in your power to follow my wishes and I wish your society the utmost success.
“Will you please send me a receipt? I think if you can pledge local people for help and interest you will find that like other places you will receive sufficient for all your running expenses.
“If there is to be discord and delay you can tell Fort Smith I withdraw my money as there are many places very keen to have me help them and co-operate.’'
At the time of the receipt of this letter in April, 1938, there had been organized in Fort Smith a humane society of which Mrs. Bailey was' president, and we think it very clear that this donation was to the society, and not to Mrs. Bailey, for control and disbursement.
Upon the receipt of the check it was deposited to the account of “Sebastian County Humane Society, by Della Carr Bailey, President.” It was deposited as a savings account, and $120 of the interest which accrued thereon was used in paying the purchase price of a 6.2-acre tract of land for use as a shelter. The deed to this land was dated April 26, 1939, and was made to the Sebastian County Humane Society. The land cost $500, all of 'which was paid by public subscription except the $120 of interest used for that purpose.
Friction developed between Mrs. Bailey and her husband, on the one hand, and members of the society, .on the other, ¡but they co-operated in their endeavor to induce the city of Fort Smith to appropriate funds on hand and others to be derived from the privilege tax bn keeping dogs. The mayor of the city at first declined to assent to this diversion of the city’s funds upon the ground that it was unauthorized. As a means to that end, there was'pabsed, at the 1939 session of the general assembly, act -No.' 44,- declaring humane societies for the prevention of cruelty tó animals to be organizations of a public nature, for which public funds might be expended and to compel appropriations by municipalities of funds received from taxes for the privilege of. keeping animals to the use of such societies.
It is said that this act 44 is a local bill, and is unconstitutional for that reason; but, even so,'there was begun a test suit to determine whether the city of Fort Smith might appropriate its dog tax to the humane society, and it was decided that this might be done, and the city dog’ tax was paid over to the humane society after the passage of an ordinance to that effect by the city of Fort Smith. This ordinance is still in full force and effect.
There was protracted delay in the erection of the shelter, indeed, it has not been erected even yet. This delay was due, in part at least, to the fact that Mrs. Bailey sustained a serious injury which incapacitated her for a long period of time. Upon her recovery, the friction between Mrs. Bailey and other members of the society increased, and she and they wrote letters to Mrs. Ravenscroft presenting their respective sides of the controversy. Mrs. Ravenscroft took sides with Mrs. Bailey, and has since maintained that attitude.
Under the direction of Mrs. Ravenscroft, Mrs. Bailey withdrew the deposit from the bank where it was first made, and made deposit thereof in another bank in the name of “Mrs. Henry Ravenscroft, by Della Carr Bailey.” Upon being advised of this action, members of the humane society brought this suit, alleging that there had been an unauthorized appropriation of these funds, and praying that a trust be declared and that the withdrawal of the deposit be enjoined.
A number of pleadings were filed, and much testimony was taken, all of which was reviewed by the chancellor in an elaborate opinion granting the relief prayed.
Reversal of this decree is prayed upon the ground that the gift was always conditional, and that the conditions were never met. It is further insisted that the donor had the right to insist upon the performance of the conditions imposed, and had the further right to impose additional conditions at any time before the original conditions were complied with.
The chancellor found, however, that there had been a substantial compliance with the conditions; and we concur in that finding of fact.
The chief insistence is that the donor imposed the condition that the city would accept in writing the do-. nation, and should agree, in this writing, to perform and comply with the conditions imposed.
. We agree with, the court below that there has been a substantial compliance with the conditions; and we are also of the opinion that Mrs. Bavenscroft is. estopped from saying there was no compliance.
Through the efforts of the humane society, the site for the shelter was bought and paid for by public subscription except the $120 interest,-and for this property the society has no other use. .The location of the site appears to have been agreeable to all parties. Plans for the shelter were prepared and approved by-Mrs. Bavenscroft. The by-laws of the society with regard to vivisection and taking animals for experimental purposes were amended in accordance with Mrs. Bavens-croft’s request. No formal written agreement was ■executed by the city to devote its annual dog license tax to the purposes of the society; but an ordinance to that effect was passed, and is now in full force and effect. Mrs. Bavenscroft did not even propose to withdraw her donation because there had not been an exact and literal compliance with her conditions. On the contrary, upon representations to Mrs. Bavenscroft that the funds of the society were inadequate, Mrs. Bavens-croft made an additional donation of $2,500 to cover the total cost of building the shelter and other expenses. This last donation was made August 7, 1939. The letter transmitting this check requested an “Official Be-ceipt,” manifesting the intention that it should be used by the society on the same conditions as the previous gift. In making- this additional donation, Mrs. Bavens-croft expressed her regret that the shelter had not been erected, but she stated her recognition of the fact that there had been unavoidable delays, and she urged that the shelter be erected without further unnecessary delay. As late as September 17, 1939, Mrs. Bavenscroft wrote Mrs. 'Bailey that “I do not wish it (the money) returned as the shelter must be built and if it really will start by February it is better to have it making 4 per cent, interest. Please keep plans, specifications, etc., safely in your office. ’ ’
It is very clear that Mrs. Bavenscroft now desires Mrs. Bailey to administer her donation. But she im posed no such condition in the original donation. She was fully' advised that the funds would he administered by the humane society. While it is true that the general correspondence relating to the project was conducted by Mrs. Bailey, this was done because Mrs. Bailey was the president of the humane society. There is nothing in the record to indicate that Mrs. Ravenscroft had constituted Mrs. Bailey as her agent to administer the trust. On the contrary, we think it is clear that it was contemplated that the humane society should discharge this duty; and we agree with the chancellor that there has been a substantial compliance with the conditions of the donation, and that the title thereto has passed and now vests in the society, which professes its intention to erect and maintain the shelter, if allowed to do so.
The decree is, therefore, affirmed.
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Holt, J.
Appellants, Dick Bennett and Edgar Holi-man, together with John Carney and J. B. Walden, co-conspirators, were charged in an information with the crime of arson. Carney and Walden entered pleas of guilty to the charge and one was sentenced to serve one year in the state penitentiary and the other two years.
Appellants, Bennett and Holiman, were tried and convicted, and the punishment of each was fixed by the court at five years in the state penitentiary.
The information upon which appellants were tried is as follows:
“I, Ralph W. Robinson, prosecuting attorney of the Fifteenth Judicial District of Arkansas, in the name and by authority of the state of Arkansas, and upon information and belief accuse Edgar Holiman, Dick Bennett, John Carney and J. B. Walden of the crime of arson as follows, to-wit:
“The said Edgar Holiman, Dick Bennett, John Carney and J. B. Walden in the county and state aforesaid, on the 5th day of March, 1940, did unlawfully, feloniously and maliciously conspire and agree and did wilfully and feloniously burn and destroy a drug store in the town of Paris, Arkansas, known as the 'Cochran Drug Store and the property of Edgar Holiman and L. B. Crenshaw, and others, and did burn the said building and its contents against the peace and dignity of the state of Arkansas, and it appearing that there are reasonable grounds for believing that said defendant, had committed the offense alleged herein, I therefore pray a warrant from Maude Connelley, circuit clerk, for arrest of the defendant that he may be brought before said court in the said county to be dealt with according to law.”
The information is based upon § 3045 of Pope’s Digest as indicated by instruction No. 1 given by the court, which is as follows:
“This information is based on § 3045 of Pope’s Digest, which reads: ‘Every person who shall wilfully and maliciously burn, or aids or abets or assists or hath advised and encouraged in the burning of any dwelling house, or other house, although not herein specifically named, or any improvements upon real estate, the property of himself or another person, shall be deemed guilty of arson as principal, and upon conviction therefor shall be imprisoned in the state penitentiary for a period of not less than one nor more than ten years’.”
Appellants, Dick Bennett and Edgar.Holiman, have appealed, assigning many errors in the course of the trial. They contend, first, that the court erred in refusing to grant them separate trials on their motion for a severance. We think, however, that this contention is without merit. Section 3976 of Pope’s Digest provides: “When two or more defendants are jointly indicted for a capital offense, any defendant requiring it is entitled to a separate trial; when indicted for a felony less than capital, defendants may he tried jointly or separately, in the discretion of the trial court. When separate trials are ordered in any case, the defendants shall he tried in the order directed by the court.”
This section of the statute has been- construed by this court in three recent cases: Graham and Seaman v. State, 197 Ark. 50, 121 S. W. 2d 892; Johnson v. State, 197 Ark. 1016, 126 S. W. 2d 289; Morris and France v. State, 198 Ark. 1040, 132 S. W. 2d 785. In each of these cases a severance was denied by the trial court, and this court, on appeal, held that no error had been committed since it did not appear that the trial court had abused its discretion in denying the severance.
In Johnson v. State, supra, this court said: “We think there was no abuse of this discretion in the instant case in denying the right of severance, especially in view of the fact that the defendants were charged with having conspired and confederated together to violate the law, and it was, therefore, necessary and proper to show their joint participation in the acts constituting a violation of the law which the information charged.”
In the instant case, however, appellants contend that the trial court abused its discretion in denying appellants separate trials for the reason that a purported confession of appellant, Holiman, was allowed to be introduced in evidence by the court, which was prejudicial to the rights of appellant, Bennett.
The trial court instructed the jury that while Holi-man’s confession could 'be used as evidence against him, it could not he used against Bennett. We quote the last sentence in instruction No. 7 as follows: “You will not consider the confession in any manner against the defendant, Bennett.”
While Holiman’s confession was made subsequent to the completion of the crime, and was not admissible against his co-defendant, Bennett, it was clearly admissible against Holiman, and the court having instructed the jury that the confession could not be used as evidence against Bennett, we think no error is shown.
In the recent case of Lindsey v. State, ante p. 87, 143 S. W. 2d 573, this court said:
“The confessions of Langley and Ralston were made after the completion of the criminal enterprise, and in the absence of appellant, and the law is definitely settled that, where a crime is committed, and the criminal enterprise of the conspirators has ended, the acts or declarations of one conspirator are thereafter inadmissible against his co-conspirators. Hammond v. State, 173 Ark. 674, 293 S. W. 714. But it must be remembered that the parties who made the confessions were also on trial, and the confessions were, of course, admissible against the parties who made them, and the jury was instructed that ‘The confessions here can be considered only by you as evidence against the one who made it. ’
“It is argued that the jury could not consider the confessions for any purpose without considering them against appellant. But this does not necessarily follow. The jury was told to do so, and we perceive no reason why they may not have done it. The jury might well have asked, in their deliberations, and have answered the question, whether, aside from the confessions, there was evidence of appellant’s participation in the crime. This they were required under the instruction to do before finding appellant guilty, and we conclude there was no error in the instruction. Johnson v. United States, 82 Fed. 2d 500; State of New Jersey v. Dolbow, 117 N. J. L. 560, 189 Atl. 915, 109 A. L. R. 1488. ’ ’
In Commonwealth v. Millen, 289 Mass. 441, 194 N. E. 463, the rule is announced as follows:
“This court has held that the question whether separate or joint trials shall be granted rests in sound judicial discretion. (Cases cited.) [This same rule obtains in Arkansas by virtue of our statute. Pope’s Digest, § 3976.]. A finding of abuse of discretion cannot be based on the fact that a confession of the defendant, Faber, implicating these defendants would be introduced at the trial. The rule that it is discretionary with the judge whether defendants indicted jointly shall be tried together applies where it is known that a confession in writing made by one of the defendants implicating* the others would probably be introduced at the trial. Commonwealth v. Borashy, 214 Mass. 313, 101 N. E. 377.
“The defendants were not prejudiced by the introduction of the confession. (Cases cited.) The rights of the defendants were carefully guarded by the instructions given, which, it is to be assumed, were followed by the jury.”
In the case of People v. King, 30 Cal. App. 185, 85 Pac. 2d 928, the court said:
‘4 Error is claimed because of the refusal of the trial court to grant separate trials. 'Since the enactment of § 1098 of the Penal Code, in its present form [§ 1098 provides that defendants are to be tried jointly unless the judge in his discretion grants a severance], a defendant jointly charged is not entitled to a separate trial as a matter of right, and the question of severance rests entirely in the discretion of the trial court. People v. Thomas, 135 Cal. App. 654, 27 Pac. 2d 765. It is not an abuse of discretion to refuse to grant a motion for a severance because damaging testimony or the admission or confessions of a co-defendant might be admitted in evidence against such co-defendant, and not be admissible against the moving defendant. People v. Swoape, 75 Cal. App. 404, 242 P. 1067; People v. Tinnin, 136 Cal. App. 301, 28 Pac. 2d 951.”
Appellants next contend that error was committed in the court’s refusal to require the state to elect upon which charge in the information it would try appellants,- ' it being their contention that more than one offense was charged, and, also, that error was committed in permitting the original information to be amended.
It appears that before the introduction of the testimony appellants demurred to the information. As originally drafted, the information contained this recital: “did wrongfully and feloniously burn and destroy a drug store in the town of Paris, Arkansas, known as the Cochran Drug Store, and the property of Edgar Holiman and others.” The prosecuting attorney was permitted to amend the information by writing in the name “L. B. Crenshaw ” as it now appears in the information set out, supra. ■ No error was committed in permitting this amendment. Section 3853 of Pope’s Digest.
After this amendment, the court overruled appellants’ demurrer. Whereupon they filed a motion to require the state to elect, which was also overruled.
We think it clear from the allegations contained in the information that Bennett and Holiman were charged with the arson of a drug store, the property of Holiman, and the building in which the business was carried on, belonging to L. B. Crenshaw. The charge is that appellants “did burn the said building and its contents.” There was only one fire, and this fire destroyed Holi-man’s stock of goods housed in the building, and while the building belonging to Crenshaw was not destroyed, it was materially damaged by the fire. It is not necessary that the building, alleged to have been burned, should have been burned down. If it were damaged by the fire that would be sufficient to support a charge of arson.
In Mary v. State, 24 Ark. 45, 81 Am. Dec. 60, this court said: “. . . but it is not necessary that any part of the house should be wholly consumed, or that the fire should have any continuance; and the offense will be complete, though the fire be put out, or go out of itself.”
There is no duplicity in this information. In discussing the duplicity of an arson indictment, the text- writer in. 4 American Jurisprudence, § 32, p. 101, says: “. . . In the case of arson, a single offense may be committed although several houses or articles are burned, provided only one fire is set. Consequently, an indictment for arson which charges as a single act the burning of several houses or which charges the burning a house as an incident to the burning of contents charges 'but one offense and is not bad for duplicity, . . .”
In Clue v. State, 78 Miss. 661, 29 So. 516, where a man was charged with burning a cotton house, the property of a certain man, and at the same time burned three bales of cotton stored therein, the cotton being the property of the owner of the cotton house and another party, upon a motion to elect being filed, the trial court disposed of the matter with this language: “. . . the charge is of one act at the same time, and we think the indictment valid. The house could not be burned without the cotton, nor the cotton without the house. It really charges the burning of the house, and as an incident, the cotton in it. . . .”
We conclude, therefore, that the court did not err in overruling the demurrer and in denying appellant’s motion to elect.
Appellants’ next contention is that the court erred in denying their motion to make the information more definite and certain. We think, however, that this contention is without merit, for the reason that the information charges the burning of the building and the contents known as the Cochran Drug Store, and is otherwise sufficiently definite in its allegations to put appellants on notice that they are charged with the crime of arson by burning the building and the drug store.
Appellants in their brief, however, argue here, and for the first time, that the motion to make more definite and certain should have been treated as a motion to compel the state to file a bill of particulars in accordance with the provisions of § 3851 of Pope’s Digest. It is our view, however, that even if we treat appellants’ motion as a request for a bill of particulars, the trial court did not err in overruling the motion, for the reason that the information itself gave all of the details of the charge necessary for appellants to'make their defense.
This court so held in the recent case of Brockelhurst v. State, 195 Ark. 67, 71, 111 S. W. 2d 527. It is there said:
“It is also argued that appellant was entitled to a bill of particulars in accordance with § 22 of said act 3. Said section amends § 3028 of Crawford & Moses’ Digest by changing and maldng unnecessary certain contents of indictments and concludes by providing that: ‘ The state, upon request of the defendant, shall file a bill of particulars, setting out the act or acts upon which it relies for conviction.’ It will be seen from the information filed, above quoted, that it set out in detail ‘the act or acts’ upon which the state relied for a conviction, and contained all the requirements of the former statute to make a good indictment had it been returned by a grand jury. So, appellant had a bill of particulars in the information on which he was tried, and it would have been a useless thing to require another. The court, therefore, properly denied this request.”
Complaint is made because the trial court refused to modify instruction No. 12 by adding to the first paragraph therein the following: “And such corroborating evidence must be such as to be inconsistent with the defendant Bennett’s plea of not guilty.” We find, however, that this paragraph is in all essentials a copy of § 4017 of Pope’s Digest. This court has many times approved instructions similar in form to this, one of our leading oases being that of Casteel v. State, 151 Ark. 69, 74, 235 S. W. 386. There it is said:
“The court instructed the jury that the witness, Termis Butts, was an accomplice, and that the appellant could not be convicted upon his testimony unless the same was corroborated by other testimony tending to connect appellant with the commission of the crime charged against him, and that the corroboration was not sufficient if it merely showed that the offense was committed and the circumstances thereof, and that unless the jury were convinced 'beyond a reasonable donbt that the testimony of Butts was so corroborated they should find the appellant not guilty. In the above instruction the court correctly declared the law applicable to the testimony of an accomplice. Section 3181, C. & M. Digest; Earnest v. State, 120 Ark. 148, 179 S. W. 174; Brewer v. State, 137 Ark. 243, 208 S. W. 290.”
The last paragraph of instruction No.- 12 told the jury that if they find the evidence of the accomplices corroborated by other evidence they must still believe from all the evidence in the case, and beyond a reasonable doubt, that the defendants are guilty. On the whole, we think the instruction as .given was correct -and no error was committed in denying appellants’ modification.
Complaint is next made that the court erred in giving instruction No. 19. As this instruction appears in the transcript, “Holiman” is written in ink after the fourth word of the 12th line, and the words “and in „that event you will convict anyway” [appearing in the 14th and 15th line on page 600 of the transcript] crossed out.
The trial judge signed the certificate to the bill of exceptions on the 10th day of July, 1940, as being correct. Both appellants contend here that this instruction was not given in its corrected form,- as it appears in the transcript, and have attempted to bring into the record by certiorari what purports to be a copy of instruction No. 19 which they claim was given at the trial without the modifications, supra. ' Our statute provides that the bill of exceptions should be presented to the trial judge for his approval and § 1546 of Pope’s Digest also provides that “. . . if the writing is not true, the judge shall correct it, or suggest the correction to be made, and when corrected, sign it. . . .”
Section 1547 of Pope’s Digest provides that “if the party excepting is not satisfied with the correction, upon his procuring the signature of two bystanders attesting the truth of his exception as by him prepared, the' same shall be filed as part of the record. . . Provision is also made in this section for controverting the bystanders’ affidavits, and this court has held that if the bystanders’ exceptions are not controverted they are to be taken as true in the Supreme Court even though they are in conflict with the bill of exceptions signed by the trial judge. Perry v. State, 188 Ark. 133, 64 S. W. 2d 328.
Here no attempt was made to secure a bystanders’ bill of exceptions. We think it clear, therefore, that the bill of exceptions certified by the judge must be accepted as correct in this court and that instruction No. 19, as it appears in the transcript with the corrections, was the one given at the trial and when read in connection with all the other instructions given, was a proper instruction.
Finally it is urged by appellants that the evidence on the part of the state is not sufficient in that there is a failure “of competent testimony by which the testimony of the admitted accomplices was attempted to be corroborated.”
The case before us presents one in which accomplices were allowed to testify, but under our statute {% 4017, Pope’s Digest) no person may be convicted on the uncorroborated testimony of an accomplice. This court has laid down a rule for the determination of this question. In the recent case of Breed v. State, 198 Ark. 1004, 132 S. W. 2d 386, an arson case, the court had for consideration the testimony which was attacked on the ground that the accomplices were not sufficiently corroborated. It is there said:
“The rule is that the evidence, independent of that of the accomplice, must tend to connect the defendant with the commission of the crime.-
“It need not be such as considered wholly apart from the testimony of the accomplice, to warrant a conviction. The rule in this regard was rather clearly announced in a somewhat recent case. Shaw v. State, 194 Ark. 272, 108 S. W. 2d 497. It was there announced: ‘It is sufficient to say that this was purely a question for the jury. They believed the testimony of Scott, and there is nothing in the evidence to show that it was physically impossible for the witness to have recognized the appel lants as lie said he did. The testimony of Scott, independent of that of the accomplices, tended to connect the appellants with the commission of the crime, although it might not have been sufficient of itself to convict them. This satisfied the rule. The sufficiency of the corroborating evidence was a question for the jury and, together with the testimony of the accomplice, it is clearly sufficient to support the verdict.’ ”
We now proceed to set out, somewhat at length, the testimony as reflected by the record, which, we think, on the whole tends to corroborate that given by the accomplices and is ample to support the verdict of the jury in this case.
Holiman and Bennett were in need of money to meet payments due the Agricultural Production Association for money advanced to buy cattle and prepare them for market. Witness, L. E. Oats, testified that Bennett and Holiman wanted to go into the cattle business together, but Bennett had some old judgments pending against him so the loan had to be made to Holiman; that at the end of the first year after the loan was made Holiman was unable to go with him to inspect the cattle, so Bennett went with him. They found only 64 out of some supposed to be 130 head of cattle, and those that they did find were a hard looking lot.
John Carney, the first of the accomplices to testify, stated that he pleaded guilty to his part in the transaction. Bennett came to the pool room where he and his nephew, Holiman Cook, were and contacted him; that Bennett asked him to come over to his office; that Bennett offered to pay him $450, and told him what he wanted him to do. A week later he called Bennett in the afternoon and went to Bennett’s house. He asked Bennett for morphine; that Bennett told him he would get it, and soon Holiman came with morphine and a hypo needle. He came back to town the following Tuesday night and contacted' Holiman at the drug store. He (Carney) carried in paper and other stuff to burn and Holiman gave him a oar, $2 in money and two five gallon cans. He went to Moffet, Oklahoma, to get the oil to burn the store. He brought tbe oil back in tbe two cans [Carney identified tbe two cans shown him at the trial as the two cans he had used] and hid them in a little house where the trash was kept back of the store.
Carney further testified he got $27 in all from Holi-man and some morphine. He went down several times to arrange excelsior to burn, and was there Wednesday night before the store burned on Monday night. Bennett came up to his home twice to see him before the fire. He got Solon Parker to ’phone ¡Bennett. Bennett came each time to see him about burning the drug store. He told Bennett to tell the. people at his home that he was trying to collect a claim against the Texas Company for an injury to a finger, but Bennett never made any effort to make any such collection. He went to Moffet, Oklahoma, in a black, 1934, V-8 Ford.
J. B. Walden, the second accomplice, testified that he was an electrician; that Dick Bennett contacted him about February 1 and wanted to know if he could fix a wire in a drug store so it would burn the building; that the conversation between him and Bennett occurred in a car in front of Walden’s house, and Bennett offered him $250 to do the job; that Bennett asked him to go down and look it over at once. He did so in four or five days; called Bennett up and Bennett came out to his home at night. About the middle of February, Bennett came out to the mine where the witness worked. About March 1, Bennett took him to the drug store and on Friday night Bennett let him in with a key. He looked the drug store over and left in 15 or 20 minutes. Their car was parked at Freeman’s Garage across the street. They saw a short, bald headed fellow without any hat standing there. Bennett suggested he contact Holiman Monday between 1 and 2 o ’clock. He told Holi-man he couldn’t burn the drug store for the roof was tin, the walls concrete and plaster and the floor concrete. Holiman told him that the stock of fixtures had to be burned and that he had plenty of gasoline and oil in the little house behind .the building with which to saturate it.
Walden further testified that be told Holiman be would put a ‘ ‘¡bug” in there and it would do the rest; that this was on Monday afternoon before the fire that night. He came back that night around 9:30 and Holiman let him in. Holiman distributed the gas, coal oil, paper, and excelsior around and saturated it with oil. He (Walden) furnished all the material for the “bug” but the clock and he got that from Bennett. He fixed the arrangement on the clock to go off at 15 minutes until 3 o’clock. Walden described in detail the contraption he had made to set the fire off, and then was permitted to exhibit to the jury a model of it. Walden set the “bug” and went on home. The next morning he heard about the fire. He saw Bennett, who came to his house within the next four or five days. Bennett there paid him $25. He saw Bennett four or five days after that and Bennett told him the fire marshal was there and it looked like Holiman would be arrested. Bennett promised to get the rest of the money from Holiman. A little after that the witness was arrested.
Mrs. J. B. Walden testified that Bennett came out to their home on February 5 or 6 and she asked him what he wanted with Walden and he said he had a $250 wiring-job for him. Later Bennett contacted Walden and they talked in a parked car in front of the house. Bennett and Walden came out to the house between 3 and 4 o’clock on Monday before the fire that night. Walden came back about 7 p.m. that same night in Bennett’s car and got some things out of his electrical tool box. Walden came home later in the night. A few days after the fire Bennett came out to the house to see Walden. On Saturday, March 9, Bennett came out and gave Walden $25 and Walden gave her $15 and kept $10 of it.
Horace Oliver, brother of Mrs. J. B. Walden, testified that he saw Bennett over at his sister’s home and Bennett and Walden had a talk one night in a car in front of his sister’s house; that he slipped up to the car in the dark and heard Bennett tell Walden “Doc has got everything fixed and if you will do the wiring we will give you $250.”
Frank Batchelor testified that Walden and Bennett were at Deleware on the Monday the fire occurred that night.
Watt Honser testified he saw Bennett and another man come out of the drug store the night before the fire after the store had closed.
Mrs. John Daniels testified Walden called for Bennett over her telephone. Colonel Henry Stroupe testified the fire occurred at 3 o ’clock in the morning. Harry Carney, a brother of John Carney, testified that Bennett called at his house for John Carney two or three times before the fire. Fay Featherston corroborates John Carney that he (Carney) called Bennett over Featherston’s telephone. Solon Parker corroborates John Carney that he (Carney) called the Cochran Drug Store at Paris for Holiman. Watson MeDionnell testified that he sold John Carney ten gallons of coal oil at Moffet,. Oklahoma, sometime after January 15, around 9:30 p.m., and put it in two five-gallon containers like the ones exhibited to him at the trial.
Scott Breed testified he saw Holiman meet Carney at the back door of his drug store and heard him ask “How much, John?” and Carney answered “Twenty-five grains, the usual amount,” then saw Holiman deliver a little package to him. Breed’s mother corroborates this, testimony and identifies Carney as the man to whom Holiman gave the package.
The question of the insanity of appellant Holiman at the time of the trial, and at the time of the commission of the crime, was submitted to the jury under proper instructions.
When we weigh all the testimony in its most favorable light to the state, as we must do (Holland v. State, 198 Ark. 933, 132 S. W. 2d 190), we think it substantial and sufficient to convict appellants.
No error appearing, the judgment is affirmed. | [
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BART F. VIRDEN, Judge
In this no-merit appeal, the Logan County Circuit Court terminated appellant Tammy Cotton’s parental rights to her daughter, B.C., on November 28, 2016. Appellant filed a notice ’of appeal the same day. Counsel for appellant filed a motion to withdraw as counsel on appeal and a no-merit brief pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6—9(i) (2016), asserting that, other than the termination order itself, which is fully addressed in the brief, there were no adverse rulings to appellant and explaining why there are no nonfrivolous arguments to support an appeal. After being served by certified mail with the motion to withdraw and a copy of the no-merit brief, appellant did not file pro se points for reversal. We affirm the order terminating appellant’s parental rights and grant counsel’s motion to withdraw.
In Linker-Flores, the Arkansas Supreme Court described the procedure for withdrawing as counsel from a termination-of-parental-rights appeal:
[Appointed counsel for an indigent parent on a first appeal from an order terminating parental rights may peti tion this court to withdraw as counsel if, after a conscientious-review of the record, counsel can find no issue of arguable merit for appeal. Counsel’s petition must be accompanied by a brief discussing any arguably meritorious issue for appeal. The indigent party must be provided with a copy of the brief and notified of her right to file points for reversal within thirty days. If this court determines, after a full examination of the record, that the appeal is frivolous, the court may grant counsel’s motion and dismiss the appeal.
Linker-Flores, 359 Ark. at 141, 194 S.W.3d at 747-48.
Subsequently the supreme court elaborated on the appellate court’s role in reviewing a petition to withdraw in a termination-of-parental-rights appeal, holding that when.the trial court has taken the prior record into consideration in its decision, a “conscientious review of the record” requires the appellate court to review all pleadings and testimony in the case on the question of the sufficiency of the evidence supporting the decision to terminate and that only adverse rulings arising at the termination hearing need be addressed in the no-merit appeal from the prior orders in the case. Lewis v. Ark. Dep’t of Human Servs., 364 Ark. 243, 217 S.W.3d 788 (2005).
Termination-of-parental-rights cases are reviewed de novo. Hune v. Ark. Dep’t of Human Servs., 2010 Ark. App. 543, 2010 WL 2612681. Grounds for termination of parental rights must be proved by clear and convincing evidence, which is that degree of proof that will produce in the finder of fact a firm conviction of the allegation sought to be established. Id. The appellate inquiry is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997).
B.C. (12/24/05) was taken into protective custody by the Arkansas Department of Human Services (Department) on September 10, 2015, due to concerns about the health and safety of her and her siblings. The affidavit of family service worker Jennifer Jackson sets forth that Tammy had overdosed on methamphetamine and benzodiazepine and had to be airlifted to Mercy Hospital. After that Tammy was admitted to Valley Behavioral Hospital due to her attempts to commit suicide, and the children were left without a legal caregiver.
A petition for emergency custody and dependency-neglect was filed and granted on September 14, 2015. The trial court found that there was probable cause to believe that B.C. and her siblings were dependent-neglected, and it would be contrary to their welfare to return them to their parent. A probable-cause order was entered on September 16, 2015, in which the court found that the family had a history with the Department. In the prior cases, the. children had been returned to Tammy following her completion of counseling and parenting classes and after having received assistance with transportation and housing. Tammy stipulated to probable cause.
An adjudication order finding B.C. dependent-neglected was filed on November 4, 2015, and the goal of the case was reunification with a concurrent goal of adoption. Tammy was ordered to submit to random drug screens, watch the video “The Clock is Ticking”, complete parenting classes, submit to psychological and drug-and-alcohol evaluations and follow any recommendations, obtain stable housing and employment, attend counseling, submit to homemaker services, cooperate with the Department, and comply with the case plan.
Following a hearing, the trial court changed the goal of the case to adoption in a review order entered on February 22, 2016. The trial court found that the Department had made reasonable efforts to provide services but that Tammy had failed to obtain housing, failed to maintain transportation, failed to comply with drug-and-alcohol treatment, failed to exercise visitation consistently, and she tested positive for drugs when she did submit to drug screening.
Termination of parental rights is a two-step process requiring a determination that the parent is unfit and that termination is in the best interest of the child. Houseman v. Ark. Dep't of Human Servs., 2016 Ark. App. 227, 491 S.W.3d 163. The first step requires proof of one or more statutory grounds for termination; the second step, the best-interest analysis, includes consideration of the likelihood that the juvenile will be adopted and of the potential harm caused by returning custody of the child to the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(b)(3)(B)(Repl. 2015); Houseman, supra. Proof of only one statutory ground is sufficient to terminate parental rights. Gossett v. Ark. Dep't of Human Servs., 2010 Ark. App. 240, 374 S.W.3d 205. A trial court is required to consider only potential harm to a child’s health and safety that might come from continued contact with the parents; there is no requirement to find that actual harm would result or identify the potential harm. Hamman v. Ark. Dep't of Human Servs., 2014 Ark. App. 295, at 11, 435 S.W.3d 495, 502. The potential-harm analysis is to be conducted in broad terms. Id.
The Department filed a petition for termination of parental rights on May 18, 2016, and based the petition for termination on the grounds set forth in Arkansas Code Annotated . section 9-27-341(b)(3)(B)(i)(a)—the child had been adjudicated to be dependent-neglected and had continued to be out of the parent’s custody for twelve months and, despite a meaningful. effort by the Department to rehabilitate the parent and correct the conditions that caused the removal, those conditions had not been remedied by the parent; section 9-27-341(b)(3)(B)(ii)(a)—the child had lived outside the home of the parent for twelve months, and the parent had willfully failed to provide significant material support in accordance with her means or to maintain meaningful contact with the child; section 9—27—341(b)(3)(B)(vii)(a)—other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the child in the custody of the parent was contrary to the child’s health, safety, or welfare and that, despite the offer of appropriate family services, the parent had manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that prevented the placement of the child in the custody of the parent; and section 9-27-341(b)(3)(B)(ix)(a)(3)(A), the parent has subjected the child to aggravated circumstances.
Following a hearing on August 17, 2016, the trial court entered an order terminating appellant’s parental rights on November 28, 2016. The trial court granted the petition to terminate on the statutory ground set forth under section 9-27-341(b)(3)(B)(i)(a) based on Tammy’s inability to control her drug abuse despite being offered extensive services by the Department for each of the three times her children had been removed. The trial court also found that Tammy’s, housing situation had been unstable, and that though she loved her child, she was unable to provide for B.C.’s needs. The trial court also- determined that Tammy’s parental rights should be terminated under the statutory grounds set forth in section 9-27—341 (b)(3)(B)(ii)(a). Specifically, the trial court found that Tammy had failed to provide material support to B.C. or maintain meaningful contact with the child. The trial court also cited the “subsequent issues” grounds set forth in Ark. Code Ann. § 9-27—341(b)(3)(B)(vii)(a), finding that Tammy had lived with a convicted felon after the filing of the original petition and that she had not maintained stable housing. The trial court found that this was the third time B.C. had been removed from her mother’s custody for parental drug use, and it determined that Tammy had subjected B.C. to aggravated circumstances and that there was little likelihood that further services would result in successful reunification.
The trial court found by clear and convincing evidence that although fact that there may be obstacles to B.C.’s adoption, the potential for harm if she was returned to her parents was too great, and it was in the child’s best interest to terminate parental rights. Specifically, the trial court found that Tammy was not able to take care of B.C.’s extensive needs, that B.C. would be subjected to continued instability in the home if returned to Tammy, and that Tammy continued to have the inability to provide and care for B.C.
Counsel contends that this appeal is without merit, concluding that clear and convincing evidence supports the trial court’s decision to terminate. Proof of only one statutory ground is sufficient to terminate parental rights, Gossett, supra, and the proof regarding Tammy’s inability to correct the conditions that caused removal was substantial. The statutory requirements were met, and the evidence established that B.C. could not be returned to her within a reasonable time period. See Ark. Code Ann, § 9-27-341(a)(3) (the intent of the legislature is to provide permanency in a child’s life when a return to the family home cannot be accomplished in a reasonable period of time as viewed from the child’s perspective.). The same proof supports the circuit court’s finding that termination was in B.C.’s best interest. Accordingly, we hold that the trial court’s decision to terminate Tammy’s parental rights was not clearly erroneous.
In dependency-neglect cases, if, after studying the record and researching the law, appellant’s counsel determines that appellant has no meritorious basis for an appeal, then counsel may file a no-merit petition and move to withdraw. The petition must include an argument section listing all rulings adverse to the appellant made by the trial court on all objections, motions, and requests made by the party at the hearing from which the appeal arose and explaining why each adverse ruling is not a meritorious ground for reversal. The petition must also include an abstract and addendum containing all rulings adverse to the appellant made at the hearing from which the order on appeal arose. Ark. Sup. Ct. R. 6-9(i). After carefully examining the record and the brief presented to us, we conclude that counsel has complied with the requirements established by the Arkansas Supreme Court for no-merit appeals in termination cases and that the appeal is wholly without merit. Accordingly, we affirm the order terminating appellant’s parental rights in B.C., and counsel’s motion to withdraw is granted.
Affirmed; motion to withdraw granted,
Gladwin and Brown, JJ., agree.
. Two siblings of B.C. were initially involved in this case; however, they were dismissed from the case. The parental rights of B.C.’s legal father, .Garland Cotton, were also terminated in the order, but he is not the subject of this appeal. | [
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Mehaffy, J.
The appellant, managing officer of the Citizens’ Bank & Trust Company at Harrison, Arkansas, was indicted by the grand jury on a charge of knowingly accepting deposits in the Citizens’ Bank & Trust Company of Harrison, while said institution was in an insolvent condition. He was also indicted on numerous other charges growing out of the bank failure. His son, also an official in the bank, was indicted, as were several other officers of the banks, both in Boone County and in other counties.
At the July term, 1932, of the Boone Circuit Court, appellant filed his verified petition for a change of venue. The petition was in proper form, and supported by the affidavits of seven persons, each of whom stated that he was a qualified elector; was an actual resident of Boone County; not related to the defendant; that he had read the petition for a change of venue, and was familiar with the facts therein contained, and that he believed the statements to be true.
The petition for a change of venue was overruled without any evidence being taken. Thereafter appellant entered a plea of guilty to the charge of receiving deposits in an insolvent-bank, and the cause was continued until the January, 1933, term. At the July, 1933, term, appellant filed his verified petition for permission to withdraw his plea of guilty theretofore entered, and stated that, after the court had overruled his motion for change of venne, he was approached by the officers of the court for a compromise of all the cases, those against himself, and other officers of the bank at Harrisorr, and the banks elsewhere. He alleged that an agreement was made between the prosecuting attorney, the court, and appellant, to the effect that all the indictments except the one in this cause should be dismissed against all the defendants upon appellant’s payment of costs in each action, including a prosecuting attorney’s fee of $25 in each case; that no further indictments or prosecutions would be instituted in the judicial district; that appellant would enter his plea of guilty in this particular case, which plea was at said time entered; that he should receive a sentence in the penitentiary of this State for a term of one year, and that, prior to the procurement of said sentence, all the above-mentioned eases should be dismissed, and that the appellant might elect to receive his sentence at an adjourned term of court, 1932, or at the January, 1933, term of said court, at appellant’s option; that at the January, 1933, term of the court, it was published in the newspaper at Harrison that the court did not intend to abide by certain portions of the agreement which had been entered into; that the agreements entered into by the officials of the court have not been performed, and the statements of officials indicated that they did not intend to perform said agreement; that appellant desired to withdraw his plea of guilty; that he Avas innocent of the charge, and entered said plea of guilty solely for the purpose of protecting his friends and former business associates; that he was entitled to withdraw said plea of guilty because, first, said plea was conditional; second, because the agreement, on the part of the court officials, had not been performed or kept.
After filing petition to Avithdraw plea of guilty, appellant filed his verified petition to disqualify the trial judge in the hearing on the motion to withdraw the plea of guilty. Testimony was then taken on the motion to disqualify the jndge. The trial judge denied the petition to disqualify, and denied appellant’s petition to withdraAv plea of guilty, and sentenced appellant to three years in the penitentiary.
The court then dismissed the cases against the parties who' had been indicted in connection with the bank failufe in ¿Boone County. Motion for new trial was filed and overruled, and the case is here on appeal.
Appellant urges a reversal, first, because he says the court erred in overruling his motion for change of venue. We agree with appellant that it was error for the court to overrule the motion for change of venue. The application for change of venue was in compliance with §§ 3087 and 3088 of Crawford & Moses’ Digest. Ward v. State, 68 Ark. 466, 60 S. W. 31; Spurgeon v. State, 160 Ark. 112, 254 S. W. 376.
While it was error to overrule the petition for change of venue, this error was waived, and the petition abandoned by entering a plea of guilty. The plea of guilty is wholly inconsistent with motion for change of venue. A plea of guilty waives any defect not jurisdictional, and which may be taken advantage of by motion to quash or by plea in abatement.
The right to a jury is waived also, and with, of course, the constitutional guaranties with respect to the conduct of criminal prosecutions. 16 C. J. 403, 404, § 738; People v. Popescue, 345 Ill. 142, 177 N. E. 739, 77 A. L. R. 1199; People v. Busby, 119 Cal. App. 6 Pac. (2d) 114; State v. Brinkley, 193 N. C. 747, 138 S. E. 138; Kachnic v. United States, 53 Fed. (2d) 312, 79 A. L. R. 1366.
Appellant contends that the plea of guilty was conditional. The law authorizes but three kinds of pleas to an indictment: First, a plea of guilty; second, a plea of. not guilty; and, third, a former conviction or acquittal. Crawford & Moses’ Digest, § 3074.
A conditional plea of guilty is not authorized, and the court could not accept such a plea. Cox v. State, 114 Ark. 236, 169 S. W. 789 Joiner v. State, 94 Ark. 198, 126 S. W. 723; Wolf v. State, 102 Ark. 295, 144 S. W. 208. It is within the discretion of the court to permit a plea of guilty to be withdrawn. The record does not show that the plea was entered conditionally. The evidence is in conflict as to what took place, and we think there was no abuse of discretion in refusing to permit appellant to withdraw his plea of guilty.
It is urged that the judgment should be reversed because the trial court overruled appellant’s petition to disqualify the presiding judge. Attention is called to 15 R. C. L. 526, 530, and 16 R. C. L. 530. We do not think these authorities sustain appellant’s contention.
Considerable testimony was taken on the question of the judge’s disqualification, but practically all of it was to the effect that an agreement had been made, under the' terms of which all the cases against others indicted in connection with the failure of several banks controlled by appellant, some of which were pending in other counties, were to be dismissed. Appellant contended that these eases in other counties were to be dismissed according to the agreement, but the trial judge did not so understand it. The evidence did not show bias or prejudice of the judge in the sense that it disqualified the trial judge.
It is said in 15 R. C. L. 530, § 18, one of the authorities relied on by appellant: “The basis of the disqualification is that personal bias or prejudice renders the judge unable to exercise his functions impartially in the particular case, and therefore it must be shown that he is biased against or entertains ill -will or hostility toward the defendant of such a character as might prevent him from giving the defendant a fair trial; and this must be shown as a matter of fact, and not as a matter of opinion of the defendant or any other person. The words “bias ’’ and “prejudice,” as used in the law of the subject under consideration, refer to the mental attitude or disposition of the judge towards a party to the litigation, and not to any views that he may entertain regarding the subject-matter involved.”
Section 20 of article 7 of the Constitution of the State of Arkansas provides: “No judge or justice shall preside in the trial of any cause in the event of which he may be interested, or where either of the parties shall be connected with him by consanguinity or affinity, within such degree as may be prescribed by law; or in which he may have been of counsel or have presided in any inferior court. ’ ’
Section 2107 of Crawford & Moses’ Digest is as follows: “No judge of the circuit court, judge of the court of probate or justice of the peace shall sit on the determination of any cause or proceeding in which he is interested or related to either party within the fourth degree of consanguinity or affinity, or shall have been of counsel, without consent of parties.” Jones v. State, 61 Ark. 88, 32 S. W. 81.
It is next contended that the court erred in overruling the motion of appellant for a jury to assess the punishment. A plea of guilty waives' any defects not jurisdictional, and appellant, by entering his plea of guilty, waives the right to a jury. It is the duty of the judge when a plea of guilty is entered, to pronounce judgment. 16 C. J. 402, § 738.
“While generally no evidence of guilt is required in order to proceed to judgment, for the defendant has himself supplied the necessary proof, yet where the court possesses any discretion as to the extent of the punishment, it is its duty to hear evidence as to aggravation and mitigation of the offense.” 16 C. J. 404, § 738.
It does not appear that any evidence was taken at the time appellant was sentenced, but the evidence does show that, at the time it is alleged an agreement was made, the punishment should be fixed at one year.
After a careful consideration of all the evidence and circumstances, we have reached the conclusion that the punishment should be reduced to one year.
The judgment of the circuit court is therefore modified by reducing the punishment to one year, and, as thus modified, the judgment is affirmed.
Humphreys, J., concurs in opinion, but dissents from reducing punishment. | [
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McHaNey, J.
Appellee, a passenger on one of tlie Missouri Pacific buses on October 20, 1937, from Little Bock to Gifford, Arkansas, brought this action against appellants to recover damages for personal injuries she alleges she sustained when she fell in the bus while alighting therefrom. The negligence alleged in the complaint was that the driver stopped the bus for her to alight at her destination and that he “carelessly and' negligently permitted said bus to start again and roll down the highway several feet without being under control by him, after having stopped said bus, and while plaintiff was walking down the aisle in said bus for the purpose of alighting. That after said bus had rolled down the highway for several feet and while plaintiff was walking in the aisle of said bus as aforesaid, the defendant, J. N. Wright, carelessly ahd negligently stopped the bus very suddenly by means of the brake,” causing her to fall and receive severe and painful injuries. Appellants answered, denying generally and specifically all the material allegations of negligence and injuries alleged. Trial resulted in a verdict and judgment for ap-pellee in the sum of $15,000. The case is here on appeal.
We think the court erred in refusing to direct a verdict for appellants at their request. The complaint alleged a cause of action, but the proof failed to sustain it, in that it failed to establish that, after the bus first came to a stop to permit the appellee, her husband and little girl to alight, it was started again and was stopped with a sudden, unnecessary and violent jerk causing her to fall and receive all the terrible injuries described in the evidence.
Her testimony on the question of negligence .is, when asked how she received her injuries, she answered: “Well, when we got to the top of the intersection where we were supposed to get off, there is a hill there. My husband told him when we got there we wanted to get off, that when he got there he went about middleways and stopped .the bus, opened the door and throwed on the lights and we proceeded to get up and get out. He and the girl were ahead of me on the bus and they got three or four steps ahead of me on the bus, and when I got up and started up the aisle, the bus jammed, I guess, the brakes, and threw me across the bns and down between the seats.” Again she was asked by her counsel:
“Q. Mrs. Bell, what really caused you to fall?
“A. The stopping of the bus.
‘ ‘ Q. The sudden stopping of the bus ?
“A. The sudden stopping of the bus.”
This was all the testimony she gave as to the negligence of the driver. Her husband, a witness in her behalf, testified as follows: “Q. 'She claims to have fallen by reason of a jerk or sudden stopping of the bus — what do you know about that? A. The bus made a second stop. Q: Tell just what happened? A. Well, when I pulled the cord and told the driver that we wanted off at the intersection, he pulled up and stopped about where he ordinarily stopped and let us off north of the intersection. I don’t know why he never did pull down in front —I guess on account of the traffic — and the little girl was on the seat with me, and if the court will permit it, 1 could start back at Little Bock and tell something— Q. Gro ahead and tell about getting off there» A. The little girl was in the seat with me and when he opened the door, I immediately got up and out of my seat and proceeded to the front of the bus, and just before I got to the front of the bus I noticed the bus was slowly moving again and just at that instant he applied the brake again and I caught to the baggage earlier and got off the' bus, and when I got off I looked back and my wife wasn’t in sight and I stepped on the step and she had come on, holding to the corner of the last seat.” Another witness, who claims to have driven his car up to the intersection of a side road with highway 67 on which the bus was traveling, stated that the bus came to a stop, rolled a. few feet and stopped again, but he did not testify as to any sudden, unnecessary or violent jerk of the bus in either stop. This was all the evidence on the subject for appel-lee. Seven other passengers on the bus and the driver, appellant Wright, testified that the bus came to a full stop in the ordinary way without any jerk, that the driver turned on the lights, opened the door and got on the out-: side to assist appellee, her husband and little girl to alight, and that the bus did not move and was not stopped again while they' were alighting. But assuming the testimony of these seven disinterested passengers, constituting as it undoubtedly does the great preponderance of the evidence, testified falsely, and that appellee' and her husband, both vitally interested in the result of the action, testified truthfully, still it is insufficient to show that appellee was thrown by. reason of a second stop which was unusual, unnecessary or a violent jerk. They do not contend that the motor was put in gear to start the bus a second time, but only that it was stopped on a slight decline of about % inch in two feet and was permitted to roll down this decline about 4 or 5 feet when it was again stopped by the application of the brakes. Now, if the bus moved from a dead stop down such a slight decline for only 4 or 5 feet, it would seem to be a physical impossibility for the bus to have gained enough momentum or speed to have caused a sudden, unnecessary or violent jerk, sufficient to upset a normal person standing-in the aisle and cause the terribly disabling injuries to appellee, about which she and her witnesses have testified.
When asked by her counsel as to what “really” caused hpr to fall, she answered: “The stopping of the bus;” and when prompted further by counsel, she said “The sudden stopping of the bus.” She says nothing about the second stopping* of the bus. It is undoubtedly true that appellee fell in the bus, and it may be true that she was injured in the fall, but the proof fails to show that it was the result of the second stopping of the bus, or that the second stopping, if any; was sudden, unnecessary or violent, and these were the grounds of negligence relied on in the complaint and without proof of which no recovery can be sustained.
At one place in her testimony appellee, in answer to a question as to the statement she made at the time she got off the bus. that her foot slipped, testified: “I don’t know. I said my feet slipped — it was like ice. I know my feet went out from under something. Q. You: said your feet went out from under you and caused you to fall? A. I don’t know what I said. Q. You said it was like ice. A. I said my feet went out from under me like I was standing on .ice. Q. Didn’t you state that your foot slipped on something? A. I don’t know whether I did or not.” That was what she said rig’ht at the time' of the accident. Whether lier injuries were the result of her feet slipping’ out from under her or whether she fell when the bus stopped is not material to the inquiry here. Before there can be a recovery the negligence alleged must be established by proof, and as we have shown, it is not sufficient. Juries are not permitted to base their verdicts on speculation and conjecture, and as to whether there is any substantial evidence to support the verdict is a question of law and not of fact. Murphy v. Murphy, 144 Ark. 429, 222 S. W. 721; Fair Store No. 32 v. Hadley Milling Company, 148 Ark. 209, 229 S. W. 727.
Por the error of the court in refusing to direct a verdict for appellant, the judgment is reversed, and, as the cause appears to have been fully developed, it is dismissed.
Humphreys, Mehaffy and Bakes, JJ., dissent. | [
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KENNETH S. HIXSON, Judge
11 This case involves a boundary-line dispute in Craighead County. The appellants, Irving Smith and Malinda Smith, own property adjacent to and directly west of property owned by the appellees, Lonnie Boatman and Flora Boatman. When the Smiths purchased their property in 2011, there was an old wire fence traveling north to south, which encroached onto the Smiths’ land as surveyed and was about ten feet west of the surveyed boundary line at the northern edge of their property and six feet west of the surveyed boundary line at the southern edge (sometimes referred to herein as the “disputed strip of land”). Irving Smith made this discovery after surveying his recently purchased property, |2and in early 2012 he tore down the wire fence and built a new fence near the location of the surveyed boundary of the parties.
Shortly after Mr. Smith tore down the old fence and built the new one, the Boat-mans filed a petition to quiet title against the Smiths. In their petition, the Boatmans alleged that the old wire fence had served as the boundary line between their property and the property to the west for at least forty years. The Boatmans claimed ownership of the disputed strip of land by adverse possession and boundary by acquiescence. The Boatmans asked that the Smiths be ordered to remove the new fence and pay damages for removal of the Boatmans’ pecan tree that was located on the disputed strip.
After a bench trial, the trial court entered an order quieting title to the disputed strip of land in the Boatmans. The trial court found that the old fence removed by Mr. Smith in 2012 had served as a dividing line between the properties for at least forty years. The trial court found that the Boatmans had acquired the disputed strip by both adverse possession and acquiescence. The trial court ordered the Smiths to move the new fence to the location of the old one and to pay $400 in damages for the destruction of the Boatmans’ pecan tree.
The Smiths now appeal, raising two arguments for reversal. First, the Smiths argue that the trial court erred in reaching the conclusion that the Boatmans’ predecessors in title had satisfied the hostility element of adverse possession. The Smiths also contend that the | ¡¡trial court lacked sufficient evidence to make a finding of boundary by acquiescence with regard to the Smiths’ predecessor in title. We affirm.
We review quiet-title and boundary-line actions de novo, but we will not reverse findings of fact unless they are clearly erroneous. Lafferty v. Everett, 2014 Ark. App. 332, 436 S.W.3d 479. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Barton v. Brockinton, 2017 Ark. App. 369, 524 S.W.3d 430. In reviewing a trial court’s findings of fact, the appellate courts give due deference to the trial court’s superior position and the weight to be accorded the testimony. Steele v. Blankenship, 2010 Ark. App. 86, 377 S.W.3d 293.
Lonnie Boatman testified that he has lived on his property since he was five years old when his father bought the land in 1967. Mr. Boatman’s father sold him the property in 1988, and Mr. Boatman and his wife Flora have lived there ever since. Mr. Boatman testified that the old wire fence was built around 1970 and remained there until tom down by Mr. Smith in 2012. Mr. Boatman stated that they maintained the land up to the fence and grew a garden there every year. According to Mr. Boatman, no one other than him had ever maintained his side of the fence since he bought his property in 1988. The previous owner of the Smith property was Barton’s Lumber Company, and Mr. Boatman stated that they never had any discussion about who owned the now-disputed strip of land.
Flora Boatman also testified that she had never seen any previous owner of the Smith property exercise any control of or claim the now-disputed strip of land. Mrs. Boatman stated that they used the disputed strip of land for gardening and had a pecan tree on the |4strip from 1981 until it was bulldozed by Mr. Smith in 2012. They used the pecan tree to sell pecans in the fall and made about $100 per year. In the winter months, Mrs. Boatman would clean the area around the fence and remove weeds.
Terry Wycoff is the Boatmans’ neighbor to the north and has lived there for more than twenty years. When Mr. Wycoff first moved there, Barton’s Lumber Company was in operation on the west side of the old fence which is now the Smith property. According to Mr. Wycoff, the Boatmans used the disputed strip of land and bush hogged to the fence about twice a year. The Boatmans’ garden went up to the fence. Mr. Wycoff stated that Barton’s Lumber used its side of the fence to pile gravel and rocks. Mr. Wycoff said that the Boatmans maintained their side of the fence and that Barton’s maintained its side, and that he never knew of anyone claiming land east of the fence except the Boatmans.
Jim Taylor is the Boatmans’ neighbor to the south and has lived there since 1982. Mr. Taylor testified that the Boatmans always controlled the disputed strip of land and had a garden there every year. When Mr. Smith was tearing down the fence in 2012, Mr. Taylor told Mr. Smith that he thought the fence was on Mr. Boatman’s property, but Mr. Smith told Mr. Taylor to mind his own business.
Appellant Irving Smith testified that after he bought his property in 2011 he noticed a survey marker to the east of the old fence in the Boatmans’ garden in what is now the disputed strip of land. Mr. Smith then conducted his own survey and discovered that the Boatmans’ garden extended past the surveyed property line. Mr. Smith then tore down the old fence and built the new fence near his surveyed boundary line, and he stated that while he was building the new fence Mr. Boatman never tried to stop him. Smith further testified |5that Mr. Boatman told him he might as well take out the pecan tree too. Mr. Smith testified that although Mr. Boatman did tell him that his father had put up the old fence, Mr. Boatman never claimed to own the land up to the fence until filing the lawsuit.
On rebuttal, Mr. Boatman testified that he never gave Mr. Smith permission to tear down his fence or his pecan tree. In fact, Mr. Boatman stated that he called the local police department when he saw the excavator tearing down the fence. Based on the foregoing, the trial court found that the Boatmans owned the disputed strip of land by adverse possession and by acquiescence.
The Smiths’ first argument on appeal is that the trial court erred in determining that the Boatmans had acquired the disputed strip of land by adverse possession. In order to prove ownership of land by adverse possession the party claiming possession must show continuous possession of the property for seven years. Robertson v. Lees, 87 Ark. App. 172, 189 S.W.3d 463 (2004). The claimant must also prove that possession was actual, open, continuous, hostile, exclusive, and accompanied by an intent to hold against the true owner. Washington v. Washington, 2013 Ark. App. 54, 425 S.W.3d 858. The Smiths specifically contend that the actions of the Boatmans’ predecessor in title failed to satisfy the requirements of being hostile and accompanied with an intent to hold against the true owner. The Smiths suggest that the actions of the Boatmans’ predecessor are best described as having constructed a fence that mistakenly strayed from the legal property line and enclosed a portion of the neighboring land. Characterizing this as an unintended mistake as to the location of the true boundary, the Smiths posit that it was insufficient to satisfy the |fihostility element or the intent to hold against the true owner as required of an adverse possessor.
We hold that the trial court did not clearly err in finding that the Boatmans proved each of the elements of adverse possession with regard to the disputed strip of land. While the Smiths assert that the old fence was constructed to the west of the record boundary line by mistake, there was no evidence presented to support that claim. The testimony showed that Mr. Boatman’s father erected the fence around 1970, but there was no testimony that his father intended for the fence to run along the record boundary line. And even had there been testimony that Mr. Boatman’s father’s placement of the fence was a mistake, we have held that if the intention is to hold property adversely, the statutory period for adverse possession runs regardless .of any mistake as to boundary or title. Dickson v. Young, 79 Ark. App. 241, 85 S.W.3d 924 (2002). When a landowner takes possession of land under the belief that he owns it, encloses it, and holds it continuously for the statutory period under claim of ownership, without recognition of the .possible right of another on account of mistake, such possession is adverse and hostile to the true owner. Id. (citing Davis v. Wright, 220 Ark. 743, 249 S.W.2d 979 (1952); Butler v. Hines, 101 Ark. 409, 142 S.W. 509 (1912)).
In this case the Boatmans presented four witnesses who testified that the Boatmans had claimed the‘disputed Strip of land inside their fence, maintained it, arid exercised control over it for far longer than the required seven-yéár period. The Boatmans’ occupation of the property included bush hogging, harvesting pecans, and maintaining a garden up to the fence line. There was no evidence that the Smiths’ predecessors in title had ever claimed ownership or tried to exercise control of the disputed strip of land between the time the |7fence was constructed in 1970 and the time the Smiths bought the property in 2011. It is ordinarily, sufficient proof of adverse possession that the claimant’s acts of ownership are of such a nature as one would exercise over his own property and would not exercise over the land of another. Sutton v. Gardner, 2011 Ark. App. 737, 387 S.W.3d 185. We conclude that the conduct of the Boatmans satisfied the hostility element of adverse possession and demonstrated an intent to hold against the true owner, and therefore we affirm the trial court’s finding that the Boatmans acquired title to. the disputed property by adverse possession.
The Smiths also argue that the trial court erred in finding that the Boatmans had acquired title to the disputed property by acquiescence. However, because we affirm the trial court’s finding of adverse possession, this issue need not be discussed.
Affirmed,
Abramson and Vaught, JJ., agree.
. The new fence was not exactly on the record boundary line but was about a foot west of it. | [
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Mehaeey, J.
This suit was begun by appellant, and the original complaint named Poor Brothers of St. Francis, Inc., as defendant. Answer was filed in which it was admitted that appellant was a corporation, but it was denied that the appellee was incorporated, and denied that it owned any property. It was alleged .in the answer that the corporation which owns the property and operates the school is known as the “Protectory for Boys under the care of the Franciscan Brothers of Cincinnati, Ohio.” Thereafter, the appellee was made party defendant.
The appellant alleged that on March 6, 1929, the ap-pellee entered into a contract with appellant to obtain a loan and to insure said property for the amount of the loan through the appellant for a period of ten years; that said contract was made with Bemmel & McCarroll, and that Remmel & McCarroll assigned said contract to the McCarroll Agency, a corporation; that the contract contained the following clause:
“I agree to insure in full paid policies the buildings on said premises in the sum of at least $129,000 fire and $90,000 tornado, loss, if any, to be paid to lender as its interest may appear. All new and renewal policies to be placed with Bemmel & McCarroll, in companies acceptable to them.”
The contract purported to be made with Poor Brothers of St. Francis, Inc., and was signed by Bro. Anthony Collassowitz. After the name was “Pres.” This was stricken out, and “Sec’y” "was written. This was stricken out, and “Superior” was written in pencil.
The evidence tended to show that the appellee owned the property and operated the school in White county, and that it wanted to borrow $20,000 to make improvements, and through Bemmel & McCarroll a loan was secured at the bank in St. Louis, the Mercantile Commerce Bank & Trust Company.
The case was tried before the judge sitting as a jury, and the court found that, at the time of the inspection of the property, the appellee had not authorized the local Superior, Anthony Collassowitz, to enter into any contract like the one sued on; that Brother Anthony 'Collas-sowitz was the local Superior and was not authorized to make the contract for insurance. The court found that at the time he signed the contract the only thing he signed was his own name, and that the rest of the signature was placed there by Mr. W. S. McCarroll; that there had'been added since the signature was signed by the Superior, the words “Pres.” and “See’y” as the position held by Brother Anthony. The court further found that he was the local Superior at Morris Institute, and as long as he was local Superior there, he kept the insurance with Bemmel & McCarroll and their assignee; that the local Superior had no authority to bind the cor--poration at this or any other time pertaining to any expenses longer than a period of one year; that the mortgage securing the loan, which was executed by the proper persons, made no reference to the insurance, and that the officials of the corporation had no knowledge of the insurance contract at the time it was made, and did not ratify it. The court further found that no insurance policies were tendered or delivered by the McCarroll Agency to the local Superior, or to the holder of the mortgage for the periods for which the sum sued for was alleged to have been earned.
It is earnestly contended by the appellant that Brother Anthony Collassowitz had authority to make the contract, and appellant states that the uncontradicted testimony shows that Brother Anthony Collassowitz was authorized and directed to enter into a contract to procure a loan, and that the pleadings admit this. The ap-pellee does not dispute this. It says that he had authority to procure the loan, and that he had authority as local Superior to pay current expenses which included paying the insurance premiums for one year; that he had no authority beyond this; that he did not have authority to make the contract relied on by appellant.
Mr. McCarroll testified that he did not inquire into the authority of the agent, but just assumed, that Brother Anthony had authority.
The general rule is that a person who deals with an agent is bound to take notice of the extent of the agent’s authority. 7 R. C. L., § 623, p. 626.
An agent cannot confer authority on himself or make himself agent by merely saying he is one, and where he varies from the particular authority given him, his acts will not bind his principal. The declarations of an agent do not establish his agency. Neither agency nor the extent of an agent’s authority can be established by his declarations.
“The authority of an agent, and its nature and extent, where these questions are directly involved, can only be established by tracing it to its source in some word or act of the alleged principal. The agent certainly cannot confer authority upon himself or make himself agent merely by saying that he is one. Evidence of his own statements, declarations or admissions, made out of court, therefore (as distinguished from his testimony as a witness), is not admissible against his principal for the purpose of establishing, enlarging or renewing his authority, nor can his authority be established by showing that he acted as agent, or that he claimed to have the powers which he assumed to exercise. His written statements and admissions are as objectionable as his oral ones, and his letters, telegrams, advertisements and other writings cannot be used as evidence of his agency. The fact that the agent has since died does not change the rule. Where his authority is in writing, he cannot extend its scope by his own declarations. His act and statements cannot be made use of against the principal until the fact of the agency has been shown by other evidence.
“This court has many times held that the acts or declarations of one does not prove that he is an agent, and that the agent cannot bind his principal beyond the limits of his authority.- It therefore follows necessarily that the act and declarations of Walz, that were beyond his authority as contained in the written contract, are not binding on the bank.” American Southern Trust Company v. McKee, 173 Ark. 147, 293 S. W. 50; Mechem on Agency, vol. 1, § 285.
The appellant says: “It is a well-known principle of law that an agent has the right to bind the principal within the apparent scope of his authority. ’ ’
If the acts done by the agent are within the apparent scope of his authority, the principal wall be bound whether the agent was given the authority actually or not.
“Apparent authority in an agent is such authority as the principal knowingly permits the agent to assume, or which he holds the agent out as possessing, such authority as he appears to have by reason of the authority which he has; such authority as a reasonably prudent person, using diligence and discretion in view of the principal’s conduct, would naturally suppose the agent to possess.” American Southern Trust Co. v. McKee, supra; Ozark Mutual Life Ass’n v. Dillard, 169 Ark. 136, 273 S. W. 378.
It is contended by appellant that one is bound by a contract which he signs whether he read it or not, and that is generally true. It is unnecessary, however, to discuss this question, because if the agent did not have authority to sign the contract, it is immaterial whether he read it or not.
On the question of ratification it is sufficient to say that in order to be binding, it must have been made with knowledge of all material facts, and there is no evidence here that the appellee knew the facts.
This snit is to collect 20 per cent. $304.78, the amount of premiums that would have been earned by appellee on two policies, which appellee contends were never received by it. The testimony on the -part of the appellant shows that Mr. MoCarroll wrote a letter and inclosed it with the policies and mailed it to the bank in St. Louis.
The assistant secretary of the bank testified that he had no record of having received any policies at the time Mr. MoCarroll testified that he mailed these policies, and the-president of the appellee testified that they did not receive the policies.
Appellant states that, under the laws of this state and other states, when a letter is properly addressed, stamped and mailed, it is presumed that it is received. The evidence shows that these policies were mailed, but the evidence tends to show that they were not received.
Appellant quotes from the Travelers Ins. Co. v. Thompson, 193 Ark. 332, 99 S. W. 2d 254, as follows: “This presumption could be rebutted by testimony that it was not in fact received, but the positive denial by the plaintiff that same was received, would not be sufficient, as a matter of law, to nullify the presumption of its receipt. Such testimony simply left the question as to the receipt of the letter for the determination of the jury under all the testimony adduced at the trial. ’ ’
The denial of the parties that the policies were received did not, as a matter of law, nullify the presumption that when mailed by the sender, they- were received; but it is a question of fact then for the jury to determine from all the evidence, whether the policies were received.
A verdict supported by evidence of a substantial character will not be disturbed on appeal. Hill v. Newell, 182 Ark. 1185, 32 S. W. 2d 174; Platt v. Owens, 183 Ark. 261, 35 S. W. 2d 538; Price-Snapp-Jones v. Brown, 184 Ark. 1143, 45 S. W. 2d 517; Texas & Pacific Ry. Co. v. Stephens, 192 Ark. 115, 90 S. W. 2d 978.
Numerous cases might be cited supporting this well-established rule. Juries generally hear the witnesses testify; they have an opportunity to observe their de meanor on the witness stand, and a much better opportunity to determine whether they are telling the- truth, than the judges of the appellate court. They are, therefore, the sole and exclusive judges of the credibility of the witnesses and the weight to be given their testimony.
This case, however, was tried before the judge sitting as a jury, and we have many times held that where a case is submitted to the trial judge, his finding of fact is as conclusive as the finding of a jury. American, Ins. Co. v. Brannan, 184 Ark. 978, 44 S. W. 2d 346; Sternberg v. Snow King Baking Powder Co., 186 Ark. 1161, 57 S. W. 2d 1057; Horvell v. Matthews, 189 Ark. 356, 72 S. W. 2d 214.
As to whether the policies were mailed, and as to whether they were received by the parties to whom they were mailed, was a question of fact, and there is substantial evidence to support the verdict of the trial court.
The judgment is affirmed. | [
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Smith, J.
Appellant Wilson and appellee Luck were opposing candidates for the nomination of the Democratic party for the office of county judge of Hempstead county in the primary election held in that county on August 27, 1940. On the face of the returns, Wilson appeared to have won the nomination by a majority of 3 votes. At the request of Luck there was a recount of the votes cast in one township the result of which recount was that Luck had a majority of 9 votes. Wilson then asked that the votes of certain other townships be recounted which request was denied. Whereupon Luck was declared the nominee, and his nomination was duly certified by the Democratic County Central Committee. This action was taken August 31,1940.
On September 7, 1940, Wilson filed suit to contest this nomination; but it' appears that no summons was issued on his complaint until September 19, 1940. The summons was served and returned to and filed with the clerk of the circuit court on September 20, 1940. It appears, therefore, that, under the authority of the case of Matthews v. Warfield, ante, p. 296, 144 S. W. 2d 22, and the cases there cited, the suit might have been dismissed for failure to comply with the provisions of § 4738, Pope’s Digest, but for the proceedings in this case presently to be stated.
The complaint contained many allegations as to illegal votes having been counted for Luck, the most important of which was that many persons were permitted to vote whose names did not appear in the official list of voters prepared under the authority and direction of § 4696, Pope’s Digest, and who had failed to furnish other evidence of their right to vote, as provided by § 4745, Pope’s Digest.
A large number of votes were challenged upon the ground that persons enrolled in Civilian Conservation Corps camps were permitted to vote who, though they had resided in the camps for more than sis months before the election, had never become citizens of Hempstead county.
Many other votes were challenged upon grounds which will not be discussed, as they relate to matters the law of which has been definitely settled by many decisions of this court. The eligibility to vote of this general class of persons will depend upon the application of the law to the facts as developed in regard to each particular voter.
Withput raising or reserving the question of the sufficiency of the service, a demurrer to the complaint was filed on September 16 upon the grounds: (1) that the plaintiff’s complaint did not state a cause of action, and (2) that the plaintiff had failed to file a bond for costs.
Without reserving or saving the question of the sufficiency of the service, a motion to dismiss the cause of action was filed September 23, 1940, upon the ground that the plaintiff had not filed a bond for costs.
On the same day there was also filed a motion to dismiss, for the reason “That the plaintiff.did not have a summons issued until the 19th day of September, 1940, which said date was more than ten days after the certification complained of in plaintiff’s complaint, and which certification applied to only one county — Hempstead county. ’ ’
The judgment, from which is this appeal, recites that the demurrer had previously been overruled, as had also the motion to dismiss for the want of a bond for costs, and, likewise, “the motion to dismiss on the ground that the plaintiff relies upon the printed list of poll tax payers for the year 1938, and that said list is invalid and was not prepared as prescribed by law. ...”
An answer was filed October 8, 1940, which did not question the time of filing the complaint or the sufficiency of the service of process thereon. In addition to denying the material allegations of the complaint, a cross-complaint was filed, containing as many — and, perhaps, more — allegations as to illegal and fraudulent votes which were alleged to have been cast for the plaintiff Wilson.
A large number of witnesses were examined in support of the allegations of the complaint, and we have before us a voluminous record of'their testimony. According to this record, many illegal votes were cast. The plaintiff relied upon the official list of voters as evidencing prima facie the right to vote, and questioned the votes of all persons whose names did not appear on this list. It developed in the taking of the testimony that 190 persons had paid their poll taxes whose names did not appear in the official printed list of voters.
The original of the list of persons who had paid poll taxes, which the collector had furnished to and filed with the county clerk, had been misplaced, and could not be found, due, apparently, to the fact that all official records had been recently removed from Washington, the old county seat, to Hope, the new county seat. But this list of voters had been recorded, as required by § 4696, Pope’s Digest, and that record was available.
The court was asked to find — and did find — that this printed list of voters had been prepared' and published in substantial compliance with the law; but it was the opinion of the court that this list had lost its prima facie verity because of the omission therefrom of the names of the 190 persons who had paid poll taxes, as shown by the records of the collector’s office. Testimony was offered to the effect that many persons paid poll taxes who had not assessed their poll taxes; but it is not clear how many of these were included in the list of 190 persons who had paid poll taxes, but whose names did not appear in the printed list of voters.
In making his proof, the plaintiff Wilson had relied upon the prima facie verity of the printed list of voters; but a motion to dismiss was filed when the plaintiff rested his case, upon the ground that the omission of the 190 names destroyed the presumptive verity of the list. It was stipulated that the printed list contained the names of 5,109 persons who had paid poll taxes. When the presiding judge indicated his intention to sustain the motion to dismiss, counsel for contestant stated: “. . . . If the court is now of the opinion that the printed list fails, we ask permission, at this time, to introduce additional testimony regarding the qualifications of these voters. . . .” When asked, “How long will it take?” counsel answered: “All the rest of the day.” This request was not then passed upon, and a recess was taken until 1:30 in the afternoon. When the court reconvened in the afternoon, counsel for contestant asked the court to declare the law to be “that the mere fact that approximately 190 names who appear to have paid a poll tax was omitted from the list by either the collector or the clerk, or the printer, would not affect its validity and would not affect the presumptive right of 5,109 persons whose names do appear upon the list to vote.” Upon this request the court ruled as follows: £ £ The court will not hold that. The court will merely hold that the failure to include the 190 names whose poll tax was paid make the list inadequate to such extent that it is not in substantial compliance with the law.”
After making- this declaration of law the court proceeded to say: “The court is adopting the théory of law that contestant has chosen to predicate his case, notwithstanding his pleadings, on the proposition that this list is a legal and valid list and is binding on the court and all parties. Now, since the court has held it is not a legal and binding list and since the court does find that the action is predicated in the pleadings, not exclusively in the pleadings, but practically in the evidence on that allegation, the motion to dismiss will be sustained.” And the cause of action was dismissed, and from that judgment is this appeal. Exceptions were duly saved to this ruling, which was properly assigned as error in the motion for a new trial.
It appears, from what has beén said, that the suit was not dismissed for failure to comply with the provisions of § 4738, Pope’s Digest, and in our opinion it should not now be dismissed for that reason. As has been said, an answer was filed, which did not raise or reserve the question of the sufficiency of the service; and before the motion to dismiss on that account was filed, a demurrer had been filed.
It is, of course, necessary, in any case, for a complaint to be filed, and the complaint in this case was filed within the time allowed by law. It is equally necessary that process should issue upon the filing- of the complaint, and that service of this process should be had. But many cases have held that this requirement may be waived, and is waived if an appearance is entered before and without raising- the question of service. Among- other cases to that effect is the case of Chapman & Dewey Lbr. Co. v. Bryan, 183 Ark. 119, 35 S. W. 2d 80. It was there said that the defendant who enters his appearance, without questioning the jurisdiction of the court, submits to the jurisdiction, and that any action on the part of a defendant, except to object to the jurisdiction, which recognizes the case as in court, will amount to a general appearance, and that filing- an answer constitutes a general appearance.
The case of Buschow Lbr. Co. v. Ellis, 194 Ark. 104, 105 S. W. 2d 531, cites a number of earlier cases to the effect that the sufficiency, or the fact of service, was waived where an answer was filed denying the allegations of the complaint which did not preserve the question of service.
A number of cases are cited in Mercer v. Motor Wheel Corporation, 178 Ark. 383, 10 S. W. 2d 852, to support the statement there appearing that “This court is committed to the doctrine, by a long line of decisions, that taking any substantive step by defendant in an action brought ag-ainst him in the courts operates as a general appearance, and waives the manner of process or any defects therein.”
In the case of Auto Sales Co., Inc. v. Mays, 191 Ark. 884, 88 S. W. 2d 330, it was insisted that the defendant had not been served with process; but before raising that question and answer, a demurrer and a motion for a continuance were filed. It was. there said: “The filing of any one of these pleadings operated to enter the appearance of the company (defendant), and renders unimportant the question of the sufficiency of the service.” See, also, Ferguson v. Carr, 85 Ark. 246, 107 S. W. 1177; Dunbar v. Bell, 90 Ark. 316, 119 S. W. 670.
It appears to be true, indeed, it is not questioned, that the printed list of voters was prepared in substantial conformity with the law, except that the names of 190 persons, who had paid poll tax, were omitted therefrom, many, if not all, of whom liad been permitted to pay without having assessed their poll tax. But, even so, and notwithstanding these omissions, the printed officiál list of voters had not lost the prima facie presumption of verity which § 4696, Pope’s Digest, intended it to have, which is and was that the persons whose names were therein contained had qualified and were entitled to vote. This presumption is, of course, not conclusive. One may not be permitted to vote merely because his name appears on the official list of-voters, if he is not otherwise qualified. Nor will the omission of one’s name from this list deprive him of the right to vote if he is otherwise qualified to do so.
By § 2 of act 123, Acts 1935, p. 339, it is provided that “It shall be unlawful for any person to cast’a ballot in any election so held as set forth in § 1 of this act, unless the said person shall have previously assessed and paid a poll tax as now provided by law and which said assessment and payment of poll tax shall have been made by the person casting a vote in person or by some person authorized by such person to assess and pay such poll tax aforesaid; . . . .” Craig v. Sims, 160 Ark. 269, 255 S. W. 1; Cain v. CarlLee, 168 Ark. 64, 269 S. W. 57; Collins v. Jones, 186 Ark. 442, 54 S. W. 2d 400.
The provisions of the statute just quoted from in regard to personal assessment and payment of poll tax was amended by act 46 of the Acts of 1939, p. 97, in a particular not necessary here to consider.
Section 4696, Pope’s Digest, requires the collector to file with the clerk of the county court a list, alphabetically arranged, of all persons who have paid the poll tax assessed against them respectively. The collector is required to authenticate this list by his personal affidavit. The county clerk is required to record this list at once in a well-bound book, and thereafter to deliver a certified copy thereof to the county election commissioners, keeping the original on file in his office. This statute further provides that the election commissioners shall have printed a sufficient number of the list to provide each judge of election with a copy thereof.
All these requirements were complied with except the omission of certain names. The purpose of this statute is, of course, to furnish the judges of election with a list of the names of persons who have paid their poll tax and, prima facie, have qualified themselves to vote; and we think the omission of the names did not destroy the value for that -purpose of the printed' list. It is, notwithstanding these omissions, prima facie evidence of all poll tax payments.
But, as we have said, the printed list is not conclusive of that fact, nor is it determinative of one’s right to vote. The law contemplates the fallibility of the officers and persons charged with the duty of preparing the list and the possibility of mistakes being made; but to encourage accuracy and to minimize mistakes, § 4745, Pope’s Digest, prescribes a penalty for the mistakes made, to be imposed upon the persons making them. But the law does not intend that one qualified to vote shall be deprived of that right through another’s mistake. ■Section 4745, Pope’s Digest, is entitled “Evidence of right to vote.” Among the numerous provisions of this section of the statute intended to secure to the elector who is qualified to vote the right to exercise that sacred privilege is one relating to persons who had paid poll tax, but whose names were omitted from the printed official list of poll tax payers.
We conclude, therefore, that the court was in error in dismissing this case because of the omission of names from the printed list of voters. The right to hold an election is not dependent upon the printing of the list of voters. A legal election could he held even though the list had not been printed at all. The purpose of printing the list is to facilitate the holding of a fair election, and the object of a contest of that election is to determine which candidate received the required number of qualified votes. The court should, therefore, have permitted the contestant to introduce the offered testimony to elucidate and establish that fact. It is true the plaintiff contestant had rested his case; and it is true also that the trial courts have a wide discretion in the time and manner of introducing testimony; but it must be remembered that, before dismissing the case, the court had previously held that the printed list imported prima facie verity, and there was no occasion for the plaintiff to offer other testimony; indeed, it appears, from what we have said, that the printed list of voters did import prima facie verity.
As the case must be remanded for a new trial, we take occasion to discuss the right of the enrollees at the Civilian Conservation Corps camps to vote. No doubt many of these enrollees had resided in these camps for six months or more, and in the state for a year or more. Some of these may have become residents of Hempstead county within the meaning of our election law; while others had not. It is a question of fact in each particular case, depending upon the intention of the individual enrollee. If one was in the camp with the intention of remaining’ there only so long as his connection with the camp might continue, intending to return to a different county from which he may have come upon the termination of his service, he did not acquire any residence in Hempstead county within the meaning of our election law. If one were a resident of Hempstead county when he became an enrollee, or intended to remain in that county although coming from another county when his service at ■ the camp was completed, he was a resident within the meaning of our election law. One would not lose bis right to vote by enrolling* in one of the camps; nor would he acquire this right through that fact alone. Any of these yonng men otherwise qualified to vote in' some other county, might have exercised that right by casting an absentee ballot by complying with the provisions of § 4780 et seq., Pope’s Digest. But, in any ■ event, and in any case, he would have the right to vote only in the county of which he was a resident, as one does not acquire a new residence until he has formed the intention of abandoning his old one. Section 65, Chapter on Elections, 18 Am. Jur., p. 223; In re Sullivan, 5 Atl. 2d 57, 17 N. J. Misc. 42; State ex rel. Small v. Bosacki, 154 Wis. 475, 143 N. W. 175; In re Erickson, 10 Atl. 2d 142, 18 N. J. Misc. 5.
The judgment will, therefore, be reversed, and the cause remanded for further proceedings in accordance with this opinion. Appellee, the contestee, will, of course, have the right to offer any relevant testimony as to the eligibility to vote of persons whose votes were cast for the contestant. | [
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Humphreys, J.
As the facts are undisputed only a question of law is involved on this appeal, and that question is, must a landowner accept a warrant issued under an order of a county court payable out of a fund showing- a large net deficit in payment of adjudicated damages for taking and using a part of his land for public highway purposes, or may he refuse such a warrant and require that a warrant be issued to him payable out of an available fund containing a net balance sufficient to pay his adjudicated claim.
In the trial of the cause in the circuit court of Washington county appellant and appellees filed an agreement entered into on September 17, 1938, as follows:
“It is hereby stipulated and agreed by the parties hereto that the county court of Washington county by its order of May 29, 1937, and upon the petition of the State Highway Commission of the state of Arkansas, did condemn and take certain lands of the plaintiffs herein (appellees’) for the purpose of changing and widening state highway No. 62, the same being known as Fayette-ville-Prairie Grove Road; that said order of the county court taking plaintiffs’ (appellees’) lands was made and rendered undér the authority and procedure as set forth in §§ 6905 and 6968 of Pope’s Digest of the Statutes of the State of Arkansas.
“That plaintiffs (appellees) filed their claim in the county court for the damages sustained for lands taken and the damages caused to the remaining lands of the plaintiffs in the sum of $2,500; that said claim was allowed by the county court in the sum of $750; that plaintiffs appealed from this order and the cause was tried in the circuit court of said county, which court on the 13th day of November, 1937, rendered judgment against said county for the sum of $1,900.
“From this judgment the county appealed to the Supreme Court. The Supreme Court on the 9th day of May, 1938, affirmed the judgment of the circuit court. The mandate of the Supreme Court was filed in the Washington circuit court and by court order ivas spread of record.
“That on the 10th day of June, 1938, the plain tills (appellees) filed in the county court of said Washington county a certified copy of the judgment, of said circuit court; a certified copy of the mandate of the Supreme Court; and a certified statement of the judgment, interest and costs, in the total sum of $1,999.55. On said June 10, 1938, said county court ordered said sum to be paid out of the State Apportionment or Gasoline Turn-back Fund. That the plaintiffs declined to accept such warrant and appealed same to the circuit court, on the claim that said warrant should be issued as provided in § 6968 of Pope’s Digest.
“That on January 15, 1938, the quorum court appropriated $5,000 or so much thereof as might be needed from State Apportionment or Gasoline Turnback Fund to pay for rights-of-way of State and Federal Highways and damages caused thereby.”
Other facts undisputed relate to the state of the county finances, that is the balances and outstanding warrants in the three, funds of the county, namely: The County General; the Road and Bridge; and the State Apportionment or Gasoline Turnback Fund, which is as
follows:
Date of Date Date of Circuit Gt. of $1,900 County Court Judgment Judgment in Order on vs. General Circuit Court Turnback Fund Revenue
General Revenue 1VW1937 6/10/1938 9/17/1938
Balance, Cash... $12,917.55 $12,360.41 $14,147.46
Road and Bridge Balance, Cash... $ 1,822.17 $ 6,485.86 $ 66.37
Turnback Net Deficit. $55,670.36 $40,908.66 $56,161.68
Another fact appearing in this record which is undisputed is that the Turn Back Fund out of which the county court directed that a warrant be issued in payment of appellees’ judgment could not be paid for about three and one-half years as the deficit in that fund could not be overcome for that period of time.
Under the undisputed facts cited above the circuit court found that on the 17th day of September, 1938, the only available fund out of which the .judgment .might be paid was the County General Fund, that on that date the County General Fund had a cash net balance of $14,147.46, and that on that date there ivas only a cash net balance of $66.37 in the Road and Bridge Fund, and on that date the State Apportionment or Gasoline Turn Back Fund disclosed a net deficit of $56,161.68.
Based upon this finding, supported by the undisputed facts, the circuit court declared that under the law ap-pellees were entitled to a warrant drawn against the County General Fund for $1,999.55, which amount covered the judgment and interest thereon, in payment of their judgment, and ordered and adjudged that the county clerk issue a warrant against the County General Fund for said amount payable to them, and to deliver same to them upon demand, and ordered and adjudged that the county treasurer pay same out of the County General Fund in his hands.
From this judgment appellant has duly prosecuted an appeal to this court.
Counsel for appellant admit that when subdivision 1, of paragraph (h) of § 1 of act 63 of the Acts of 1931 as amended by § 2 of Act 48 of the Acts of 1933 is read in connection with the last part of § 6968 of Pope’s Digest, which is a part of the Act of May 31, 1911, there are three county funds out of which appellees’ judgment might be paid, but contend that it was within the discretion of the county court to determine out of which fund it should be paid.
In support of this contention they cite § 2906 of Popes Digest. It is true that this section confers broad powers upon the county court and makes him in effect the fiscal agent of the county, but it does not make the acts, judgments, final orders and proceedings of county courts absolute. All such acts, judgments, final orders and proceedings of county courts are to be exercised under the superintending control of the circuit courts. Section 2860 of Pope’s Digest provides:
“The circuit courts shall exercise a superintending control and appellate jurisdiction over county, probate, court of common pleas and corporation courts and justices of the peace; and shall have power to issue, hear and determine all the necessary writs to carry into effect their general and specific powers, any of which writs may be issued upon the order of the judge of the appropriate court in vacation.”
Section 2867 of Pope’s Digest provides:
“They (referring to circuit courts) shall have superintending control over the judgments, .final orders and proceedings of county courts, and county 'boards and officers.”.
If it be true that the county court ivas vested with discretionary power to say from which of the three funds appellees’ judgment'might'be paid, in doing so he must necessarily exercise a sound discretion and not an arbitrary discretion. In exercising this discretion in the instant case the county court directed the issuance of a warrant payable out of a fund which did not have any money-with which to redeem the warrant for about three and a half years, whereas he could have issued a warrant in payment of appellees’ judgment out of an available fund which showed a net cash balance of $14,147.46. This action- on the part of the court was arbitrary in view of the fact that in the exercise of a sound discretion he might' have directed the issuance of a warrant out of an available fund that showed a net cash balance of $14,147.46. If he had exercised a sound discretion it would have enabled the appellees to collect their judgment and this record does not disclose that the payment thereof out of the General Revenue Fund would have prevented the usual and orderly functions of the county government. In other words the record does not reflect that the payment of appellees ’ warrant out of the General Revenue Fund would have prevented the county from paying all the statutory claims against the county. Of course it would have been the duty of the. county judge to direct that a warrant be.issued against the Road and Bridge Fund to pay the judgment of appellees instead of direct- iug tlie issuance of a warrant payable out of the General Revenue Fund because the latter part of § 6968 of Pope’s Digest provides as follows:
“Provided further, all damages allowed under this act shall be paid out of any funds appropriated for roads and bridges, and if none such, then to be paid out of the General Revenue Fund of the county.”
Our construction of this provision in § 6968 of Pope’s Digest is that as between the Road and Bridge Fund and the General Revenue Fund, the damages for taking appellees’ land for public use must be paid out of the Road and Bridge Fund, if there is sufficient money in said fund to do so, and that the county court was authorized to use the money in the General Revenue Fund for such a purpose when the money in the Road and Bridge Fund was insufficient to do sd. The-undisputed facts in this case show that there was only $66.37 in the Road and Bridge Fund on September 17,1938.
The circuit court was correct in holding that appel-lees were not required to accept a warrant in payment of their judgment in taking their land for public purposes on a fund which showed a net cash deficit of $55,670.36 and directing the county clerk to issue a warrant in payment of said judgment against the General Revenue Fund and in directing the county treasurer to pay said warrant out of said fund then in his hands.
The judgment of the circuit court is, therefore, affirmed.
GeuteiN Smith, O. J,, dissents. | [
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BART F. VIRDEN, Judge
|,Appellant Donna Sue Fulbright appeals the decision of the Arkansas Workers’ Compensation Commission (the Commission) denying her claim for benefits associated with an injury that she asserts she sustained while she was performing employment services within the course of her employment with St. Bernard’s Medical Center. The Commission found that Fulbright failed to prove that she had sustained a compensable injury. On appeal to this court, Fulbright argues that the Commission failed to conduct a proper review and that the Commission’s findings are not supported by substantial evidence. After reviewing the evidence presented, we disagree and affirm.
I. Facts
Donna Sue Fulbright worked at St. Bernard’s Medical Center (St. Bernard’s), as a laundry aide in 2014 when she tripped and fell on her way to the cafeteria to get a snack during a break. On the day of the accident, Fulbright had clocked out and walked across | athe street to smoke. Fulbright clocked back in when she returned from smoking and then she resumed her break on the campus. As Fulbright was walking inside the hospital near the admission desk, she tripped on the edge of a carpet and fell, fracturing her left hip and femur. Fulbright testified that though she was not directly benefitting St. Bernard’s during her break, she was indirectly bene-fitting her employer by getting something to eat so that she could have energy to do the physical labor associated with her work. Fulbright testified that she had eaten a Pop-Tart that morning before work but that she needed to eat again before lunch in order to do her job. On cross-examination, Fulbright testified that she carried out her duties mostly in the laundry room but that she also delivered linens to various floors at the hospital. Fulbright admitted that she was not carrying out any tasks related to her job activity when she went to the cafeteria and that she was not required to perform any job duties during her break, nor were other coworkers ever called back during breaks to do work.
Fulbright testified that she did not have any medical conditions that required her to eat every two or three hours, nor would she have passed out if she had not eaten before her lunch break.
Kathryn Witcher, the team leader in. the laundry facility at St. Bernard’s, testified that Fulbright’s job was to feed sheets through an ironing machine and that it was not a strenuous job. Witcher testified that Fulbright’s work duties were not so demanding that one would need to stop and eat to continue working, though the work was continuous all day long.
|3On May 6, 2016, Administrative Law Judge (ALJ) Andrew Blood found that Fulbright “did not sustain an injury arising out of and in the course of her employment with [St. Bernard’s] in that she was not performing employment services at the time of her accidental fall.”
The Commission affirmed and adopted the decision of the ALJ, though Commissioner Phillip Hood dissented stating that he would have found that Fulbright had been obtaining food to sustain herself for a physically demanding job, thus, her activity while she was injured had been to the benefit of her employer and necessary for her work,
Fulbright filed a timely notice of appeal.
II. Points on Appeal
For her first point on appeal, Fulbright argues that the Commission erred when it adopted the ALJ’s findings of fact and conclusions of law and failed to conduct a de novo review of the record and make findings of ¡fact and conclusions of law.
The Commission is permitted to adopt the decision of the ALJ, thereby-making the law judge’s findings and conclusions those of the Commission. Death & Permanent Total Disability Trust Fund v. Branum, 82 Ark. App. 338, 107 S.W.3d 876 (2003). There is no indication that the Commission did not conduct a de novo review, and as is set forth above, the Commission is permitted to adopt the decision of the ALJ. We find no error, and we affirm.
For her second point on appeal, Fulbright argues that the Commission’s findings were not supported by substantial evidence. We disagree, and we affirm.
14When the Commission denies benefits because the claimant has failed to meet his burden of proof, the substantial-evidence standard of review requires that we affirm if the Commission’s decision displays a substantial basis for the denial of relief. Moore v. Ark. State Highway & Transp. Dep’t, 2013 Ark. App. 752, 2013 WL 6686146. We view the evidence in the light most favorable to the Commission’s decision and affirm if it is supported by substantial evidence. Id, Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Rector v. Healthsouth, 2014 Ark. App. 135, 2014 WL 653052. The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Williams v. Baldor Elec. Co., 2014 Ark. App. 62, 2014 WL 249144. We defer to the Commission’s findings of credibility and the resolution of conflicting evidence. Moore, supra. In order for an accidental injury to be compen-sable, it must arise out of and in the course of employment. Ark. Code Ann. § 11—9— 102(4)(A)(i) (Supp. 2007). A compensable injury does not include an injury that was inflicted on the employee at a time when employment services were not being performed, Ark. Code Ann. § 11—9— 102(4)(B)(iii).
An employee is performing employment services when he or she is doing something that is generally required by his or her employer. Cont'l Constr. Co. v. Nabors, 2015 Ark. App. 60, at 3-4, 454 S.W.3d 762, 765-66. We use the same test to determine whether an employee is performing employment services as we do when deterr mining whether an employee is-, acting within the course and scope of employment. Id. The test is whether the injury occurred within the time.and space boundaries .of. the employment, when the |^employee was carrying out the.employer’s purpose or advancing the employer’s interest, directly or indirectly. Pifer v. Single Source Transp., 347 Ark. 851, 857, 69 S.W.3d 1, 4 (2002).
Fulbright argues that by getting something to eat she was furthering her employer’s interest in that she was gaining sustenancé to do the physical labor associated with her job; however, this court has held that under circumstances similar to the ones in our present case getting a snack constitutes a personal errand. In Hill v. LDA Leasing, Inc., 2010 Ark. App. 271, 374 S.W.3d 268, this court affirmed the denial of benefits where the claimant sustained an injury at the place of employment but while he was engaging in activity that did not advance the employer’s interest. In Hill, the claimant injured his shoulder as he was returning from the restroom and stopped at a vending machine located on the work site’s premises to buy a snack. He slipped and fell when he pushed the vending machine-button, and our court held that this injury did not arise out of and in the course of the claimant’s employment, and, thus, his injury was not compensable. In Hill, the claimant admitted that he was not in the vicinity of his truck when his injury occurred, and thus, he was not in a position to have discharged his sole duty of supervising the truck during the unloading process to make sure no damage was done to his truck. Id. at 7, 374 S.W.3d 268, 272.
By contrast, this court has held that there are circumstances under which an employee getting something to eat furthers the employer’s interest. In Centers for Youth & Families v. Wood, 2015 Ark. App. 380, at 5, 466 S.W.3d 422, 425, this court affirmed the Commission’s decision that when the claimant briefly left her workstation to get a snack, this activity did not detract from her job duties and benefit her employer. In Centers for Youth & Families, the claimant was permitted to leave her workstation for various reasons, “including getting a | f!snack from the vending machine, as long as the telephone was not ringing and guests were not needing assistance.” Employees commonly retrieved snacks from the vending machine nearby. After getting a snack, the claimant could immediately resume her front-desk duties, which included answering the telephone and greeting members as they arrived. Id. at 5, 466 S.W.3d 422, 425.
The present case is analogous to Hill and distinguishable from Centers for Youth & Families. In the case at hand, Fulbright got a snack while she took her break, but, unlike the claimant in Centers for Youth & Families, there was no evidence or indication that Fulbright was performing a job-related duty during the break. Fulbright argued that getting energy from food benefitted her employer by allowing her to continue working, but there was testimony that Fulbright had no medical condition that required her to have a mid-morning snack in order to work until lunchtime. Furthermore, there was testimony that Fulbright’s job was not particularly physically demanding, such that a snack would be necessary to continue working until she was able to eat lunch. As in Hill, Fulbright was performing a personal errand that was not related to her employment when she was injured, and thus, the injury is not compensable.
Affirmed.
GLADWIN, C.J., and GLOVER, J., agree.
. Hospital policy required employees to clock out during breaks only if they left the campus. | [
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LARRY D. VAUGHT, Judge
11Appellant Montana Guthrey appeals the Pulaski County Circuit Court’s order terminating her parental rights to her four minor children. Guthrey challenges the sufficiency of the evidence supporting the circuit court’s findings as to the statutory grounds for termination and as to the children’s best interest. We agree that the evidence was legally insufficient to support the circuit court’s findings, and we therefore reverse.
Montana Guthrey’s four young children were removed fi>om her custody and placed in the care of the Arkansas Department of Human Services (DHS) in December 2014, following Guthrey’s arrest as the result of a traffic stop during which police found drugs and drug paraphernalia in a car driven by Guthrey’s boyfriend, Kirk Childers, and in which Guthrey and two of her children were passengers. Guthrey told the police that she and her four chil dren lived with her brother and sister-in-law. Upon investigation as to whether the home was an ^appropriate place for the children to remain while Guthrey was incarcerated, Guthrey’s sister-in-law failed a drug test, and all four children were taken into DHS custody.
On February 18, 2015, the circuit court adjudicated Guthrey’s four children dependent-neglected based on a stipulation of parental unfitness and neglect because Gu-threy had been arrested and had tested positive for benzodiazepines and POP at the time of her arrest. The case goal was set as reunification and the case was placed in the court’s “Zero to Three” program that allowed for more frequent review hearings and additional services. During several subsequent Zero to Three review hearings, the court noted Guthrey’s progress in working the case plan. By March 11, 2015, she had successfully completed her psychological evaluation and was granted additional visitation with her children. In April, the court stated that Guthrey was compliant with the case plan and was “making great progress.” In June, Guthrey was compliant and was receiving outpatient drug treatment and counseling, was attending AA/NA support group meetings, had passed all drug screens, had maintained a clean and appropriate home, and was abiding by all court orders. However, the June order noted that “there have been some bumps in the road” without specifying the problems.
One of those “bumps in the road” may have been a reference to the fact that Guthrey was pregnant, which was first noted by the court the following month in the July review order. The court stated that it would give her “one more [Zero to Three] review, with the caveat that reunification may not remain the goal” and stated that “if today were permanency planning, there is no doubt what the next hearing would be.” The court stated that Guthrey had “squandered seven months” of the ease and that her priority had not been her children. The court expressed disapproval of her pregnancy, stating, “[Guthrey] cannot handle the four | ..¡children she has, and she is adding another child into this mix with a father who will be in prison,” referring to Kirk Childers. The court admonished Guthrey, stating that “[m]en [are] the worst choice this court repeatedly sees; they are always the same man in a different skin, and they are never appropriate and never stick around.”
At the August hearing, the court entered an order stating that Guthrey had “done a lot of positive things on her drug treatment,” but that she had more work to do. The court explained that it was willing to give Guthrey additional time and support at the upcoming permanency-planning hearing. It also modified the visitation schedule to allow for biweekly home visits, including Saturday visits of up to five hours. As part of this order, the court stated that “there shall be no men in her home; no one but family ... shall be in the home for visits.”
In November, the court held a permanency-planning hearing at which Guthrey’s caseworker praised the progress she had made in overcoming her drug addiction. The court’s permanency-planning order required Guthrey to continue working the case plan and receiving services, but it changed the case goal from reunification to termination and adoption. Again, the court recognized that Guthrey had maintained stable and appropriate housing and employment, had completed most services, had not tested positive for any drugs, had consistent visits with her children, and had gotten her driver’s license reinstated. Her caseworker requested that the court give her three more months to work toward reunification and expressed the opinion that the children were ready to be reunified with their mother.
The evidence also revealed that Guthrey was in a new relationship with a disabled veteran she had met in AA/NA who was also a recovering alcoholic. She had ended her relationship with Kirk Childers when he went to prison, Mr. Childers had voluntarily | ¿relinquished his parental rights to their child, and he was no longer a part of her life. She admitted that the man she was now seeing had been in her home during the pendency of the case, noting one evening she had friends over for a game night and he had come to get a lawnmower. However, there was evidence that his car had been seen at Guthrey’s home late into the night when no one else was there. This was when the children were not present, and Guthrey stated that he had never been around her children and would not be around them if they were returned to her,
Guthrey also testified that, as part of her twelve-step program, she was working on improving her “character defects,” and she listed honesty as something her sponsor was helping her work on. She admitted that, approximately a year prior, when she first began working the case plan, she had falsely stated that she was regularly attending AA/NA meetings that she was not attending. She said that she was “still continuing my rehab” at the time. She also acknowledged that, although she had been ordered to attend three AA/NA meetings per week, there had been a time during the course of the case that she could manage to attend only one per week, due to working two jobs and completing all other court-ordered services. Finally, she acknowledged that the results of her psychological evaluation indicated that she needed to address “decision making” and “poor choices,” which she agreed had been a problem in her life, specifically noting her drug use with Kirk Childers. She stated that she had recently restarted individual therapy on her own accord.
Guthrey testified that she was working two jobs while also completing all of the required services and therapies for the case plan. She stated that her father-in-law had helped her pay rent for a few months and acknowledged that at one point there had been an eviction | snotice against her, which she claimed was due to missing a deadline for re-signing her lease when her apartment was sold. She testified that she had maintained a stable, appropriate home and that it was fully ready for the return of her children.
Despite the caseworker’s praise and request for more time, the court found that Guthrey’s significant progress was not enough to forestall termination proceedings. The court stated that it had concerns about Guthrey’s honesty, finding that she had been “evasive” throughout the case. The court stated that “mother is addicted to bad men” and “being addicted to men is just as bad as being addicted to drugs.”
In January 2016, DHS and the attorney ad litem filed joint petitions to terminate Guthrey’s parental lights. The evidence at the termination hearing was essentially the same as at the permanency-planning hearing: Guthrey had complied with the case plan and had successfully completed drug treatment as well as all other court-ordered services and therapies. She had given birth during the case to a fifth child whose father, Kirk Childers, was incarcerated. She had begun dating a recovering alcoholic. He had been in her home, even late into the night, but never when the children were present. She had maintained appropriate employment and housing and had frequently and successfully exercised visitation with the children.
The court entered an order terminating Guthrey’s parental rights on June 9, 2016, finding that termination was in the children’s best interest because returning them to her care would expose them to a risk of harm based on her poor judgment and inability to keep them safe. It also found three statutory grounds for termination: failure to remedy, subsequent factors, and aggravated circumstances. Gu-threy filed a timely notice of appeal.
| fiIn Knuckles v. Arkansas Department of Human Services, we explained that we review termination-of-parental-rights cases de novo. 2015 Ark. App. 463, at 2-3, 469 S.W.3d 377, 378-79 (citing Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001)). However, we reverse a trial court’s decision to terminate parental rights only when it is clearly erroneous. Ullom v. Ark. Dep’t of Human Servs., 340 Ark. 615, 12 S.W.3d 204 (2000); Mitchell v. Ark. Dep’t of Human Servs., 2013 Ark. App. 715, 430 S.W.3d 851; Brewer v. Ark. Dep’t of Human Servs., 71 Ark. App. 364, 43 S.W.3d 196 (2001). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a distinct and firm conviction that a mistake was made. Wade v. Ark. Dep’t of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999); Hopkins v. Ark. Dep’t of Human Servs., 79 Ark. App. 1, 83 S.W.3d 418 (2002).
Guthrey challenges the sufficiency of the court’s evidence as to each statutory ground and the best-interest finding. Arkansas law provides, as one of the statutory grounds for termination, that the “juvenile has been adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent.” Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Repl. 2015). Despite conceding that Guthrey had fully remedied her drug problems, the court found that she had not remedied the “poor judgment” that originally caused the removal of her children. On appeal, Gu-threy argues that (1) the court erred in framing the original cause of removal so broadly and (2) there was insufficient evidence to support the court’s finding of poor judgment.
|7We agree that the court erroneously defined the condition causing removal of Guthrey’s children as “poor judgment.” It is clear from the court’s previous orders that the children were removed from Gu-threy’s custody due to parental unfitness and neglect stemming from her arrest pursuant to the traffic stop during which drugs and drug paraphernalia were found in the car in which she and her children were passengers. Upon arrest, she tested positive for illegal drugs, and it was revealed that she and her children had been living in a home with other drug users. These facts were the bases for the stipulation of unfitness and neglect that resulted in her children’s adjudication as dependent-neglected. Every alleged fault, error, or failure in Guthrey’s parenting was directly related to the use of illegal drugs. By framing the condition causing removal so broadly as “poor judgment,” the court violated the statutory requirement that this ground be focused on the specific conditions that caused removal. As a result, it rendered the alleged “condition” so vague as to be essentially meaningless.
Alternatively, we agree with Gu-threy’s argument that there was insufficient evidence to support the court’s finding that she had failed to remedy her “poor judgment.” In support of this finding, the court relied on Guthrey’s relation ships with “inappropriate” men and her evasiveness throughout the case. As to Gu-threy’s romantic relationships, she acknowledged that her relationship with Childers involved drug use and that he had been in and out of prison, qualifying him as an “inappropriate” man, but Guthrey testified that she had ended that relationship and that Childers was no longer a part of her life. There was no evidence in the record to contradict these statements. The court also found Guthrey’s new romantic interest to be inappropriate simply because he was a fellow recovering addict whom she had met in |8AA/NA. Dr. Dey-oub opined that he could potentially pose a risk to the children if he relapsed. However, we note that such a statement is pure speculation, and the record reveals a complete lack of evidence to support the conclusion that this man had in any way been a negative influence on Guthrey or presented a risk to her children. Guthrey’s own testimony revealed that he had supported her efforts to maintain sobriety, which the court had found her to have successfully achieved.
The only other finding relied on by the court to justify its finding that Guthrey had failed to remedy her “poor judgment” was the fact that she had been evasive and less than honest throughout the case. The termination order does not clearly specify particular instances of dishonesty, but it seems to include the fact that she was evasive about her romantic relationships and her pregnancy, she had exaggerated her financial stability and downplayed her struggles to pay rent, and she had provided assurances that her criminal charges were being resolved when in fact they remained pending. We respect and give deference to the court’s determination that Guthrey was not credible. Lowder v. Gregory, 2014 Ark. App. 704, at 14, 451 S.W.3d 220, 229. However, even when we defer to the court’s finding that Guthrey lacks credibility and disregard her own self-serving testimony, we are left with insufficient evidence to support the court’s findings. We note that lack of credibility is not, in and of itself, a condition warranting removal of one’s children and therefore does not amount to the failure to remedy such a condition. As we stated in Geren Williams v. Geren, 2015 Ark. App. 197, at 9, 458 S.W.3d 759, 766, which hinged on whether there had been a material change of circumstance warranting a modification of child custody, “a credibility determination, on its own, does not create a material change in circumstances. Credibility describes a quality of the|9witness (the quality of being believable or trustworthy, not an independent fact or circumstance).” We went on to say, “[sjtated more plainly, we defer to a circuit court’s credibility determinations, but those determinations must relate to testimony or evidence regarding material facts” in order to support the circuit court’s findings. Geren Williams, 2015 Ark. App. 197, at 15-16, 458 S.W.3d at 769. As in Geren Williams, we hold that the circuit court erroneously substituted its credibility determination for substantive evidence sufficient to support its finding.
The circuit court relied on the same analysis to support its finding of two other statutory grounds and best interest. For each, it repeatedly framed Guthrey’s parenting problems as “poor judgment” manifested through dishonesty and relationships with inappropriate men. As dis cussed above, there was insufficient evidence to support each finding.
Regarding the existence of subsequent factors, the court noted that Gu-threy had become pregnant during the case but did not provide any analysis as to why her pregnancy met the statutory requirement that the subsequent factor “demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile’s health, safety, or welfare.” Ark. Code Ann. § 9-27-341(b)(3)(B)(vii). There is simply no evidence in the record to indicate |10that the birth of Guthrey’s baby would create any risk to her other children’s health, safety, or welfare.
Likewise, the court’s findings were insufficient to support a finding that Gu-threy subjected the children to aggravated circumstances, which are defined by the statute as including “little likelihood that services to the family will result in successful reunification.” Ark. Code Ann. § 9-27-841(b)(3)(B)(ix) (a) (S)(B)(i). Far from demonstrating an inability or indifference to remedying her problems, Guthrey had diligently and successfully worked her case plan and utilized all available services. We find insufficient evidence to support the court’s finding of aggravated circumstances.
Finally, the court relied on the same findings to support its conclusion that termination of Guthrey’s parental rights was in her children’s best interest because returning them to her custody would expose them to a risk of harm. The juvenile code requires termination to be supported by clear and convincing evidence that returning a child to his parent would place the child at risk, “specifically addressing the effect on the health and safety of the child.” Ark. Code Ann. § 9-27—341(b)(3)(A). As we have discussed above, there is insufficient evidence that returning the children to Guthrey would pose any risk to their health and safety. By all accounts, she successfully remedied her drug problems, diligently completed all required services and therapies, maintained stable and appropriate housing and employment, and successfully exercised extended visitation with her children. Her caseworker testified that her children love her and were ready to go home. Given these facts and the lack of evidence to support the court’s concerns, we hold that there was insufficient evidence to support the court’s best-interest finding.
| n Reversed.
Gladwin and Harrison, JJ., agree.
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Baker, J.
On September 2, 1933, a suit was filed in the justice of peace court of St. Joe township, Searcy county, Arkansas, against R. F. Truitt. He was sued upon a note dated June 24, 1933, due ninety days after date, in the sum of $109, payable.to Huida Baker, the appellee.. At the time this suit was instituted F. F. Baker, son of Huida Baker, took the note to a justice of the peace for the institution of /the suit. A writ of attachment issued and was served by seizing or attaching household goods belonging to the defendant, Truitt. Truitt executed a delivery bond which was signed by W. P. Campbell and W. D. Smith as sureties. After the bond was made, the property was released and moved out of the state. Before the case was tried defendant appeared and by motion asked a dismissal of the action for the reason that the case had been docketed in the justice of the peace court in the name of F. F. Baker against Truitt, instead of the real plaintiff, Huida Baker, who was the owner of the note and for the reason that the affidavit for the attachment did not appear to be sworn to, that is, a signed jurat was not attached thereto. The bond was executed by F. F. Baker, as the sole maker, or surety, in which he obligated himself to pay all costs that might accrue in the case and pay all damages done the defendant in the cause, of action. F. F. Baker stated under oath that his mother was due the $109 for rent and that the said Huida Baker authorized him to act as agent.
It appeared upon the trial that F. F. Baker had no interest in the case and this is a ground relied upon by appellants for dismissal and numerous authorities are cited as showing that the judgment rendered in favor of Huida Baker was after the substitution of Huida Baker as the new plaintiff, in whose favor judgment was announced.
We have given due consideration to all the authorities cited. In fact we have just considered within the last few days practically the sole question involved here, that is the substitution of one plaintiff for another. Floyd Plant Food Company v. Moore, ante, p. 259, 122 S. W. 2d 463.
The difference in this case and the one just'mentioned is the fact that in this matter now under consideration there has not been really a substitution of one party for another as plaintiff. We have already called attention to the fact that this- suit was one begun in the justice of the peace court. Statutes do not require that any pleading’s should be filed for the institution of such an action. We presume the note was filed. The record seems to indicate that fact. If it were, this served as a pleading and showed upon its face that Huida Baker was the true plaintiff. The bond made for the attachment showing that F. F. Baker was acting as agent and this was notice that the real party in interest was Huida Baker. When analyzed, the only fault found with the judgment rendered in this case is that the proceedings do not follow an approved pattern. There is no objection that exact justice was not done. It would be surprising, indeed, if we were not able to find any authorities to fit this case. We call attention to one: Gunter v. Earnest, 68 Ark. 180, 56 S. W. 876. That was a replevin suit instituted in a justice court by a husband and it,was tried on the theory that he was suing on behalf of his wife. The court held there that the affidavit was amendable upon appeal, the one in which the husband had sworn that the property was his own, to show that the property belonged to his wife and that he was acting as her agent. So in this case if this suit were instituted, as in fact it was, on behalf of Huida Baker, that matter could be made to appear by an amendment, although it had been erroneously docketed by the justice of the peace. Pope’s Digest, § 1463.
The other questions in this case become practically unimportant upon a decision that Huida Baker was the real party in interest and that the suit was not improperly brought or maintained. Section 579 of Pope’s Digest provides that “if the plaintiff shall recover against the defendant, and the attachment shall have been discharged upon the execution of a bond, as provided by § 562, then the court shall render judgment against the defendant and his sureties in said bond for the amount recovered and the cost of the suit.’*
So we hold that the objections made are almost purely technical without substantial merit.
Judgment is affirmed. | [
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Mehaffy, J.
This suit was brought in Crawford circuit court to recover on an insurance policy issued to John W. Baker. May Belle Baker was the beneficiary in the insurance policy, and the plaintiff in the suit.
It appears from the record that the beneficiary lived in Franklin county, and this was her husband’s home before his death, and the assured died in Sebastian county.
The appellant filed motion to quash the summons issued in the case, and alleged that the insured, at the time of his death, was a resident of Sebastian county, and that his death occurred in Sebastian county.
Section 7675 of Pope’s Digest reads as follows: “When any loss shall occur by fire, lightning or tornado, in the burning, damage or destruction of property upon which there is a policy.of insurance, or when any death has occurred of a person whose life shall have been insured, or in'case of death or injury of any one having a policy of accident insurance, the assured or his assigns, in case of fire insurance, may maintain an action against the insurance company taking the risk, in the county where the loss occurs. And the beneficiary, or his assigns, in case of life insurance, may maintain an action against the insurance company that has taken the risk, in the county of the residence of the party whose life was insured, or in the county where the death of such party occurred.”
This motion to quash was filed before appellant had entered its appearance and specially stating in the motion that it appeared specially for the motion and for no other purpose, and without entering its appearance in this action. The motion to quash was overruled, and the defendant filed answer reserving in its answer the objection contained in its motion to quash.
There was a trial and judgment for appellee. The case is here on appéal.
The statute above set out localizes actions of this kind and provides that such actions may be brought in the county where the beneficiary resides or where the insured died. Since he lived in Franklin county and died in Sebastian county, the Crawford county court, under the above statute, had no jurisdiction. This rule has been followed by this court for- many years.
The appellee contends that this court has sufficiently passed on this matter in the case of Mutual Benefit Health & Accident Association v. Moore, 196 Ark. 667, 119 S. W. 2d 499. The court in that case, however, said: “The question raised by the motion to quash service' of summons will be rather summarily disposed of for the reason it is shown that prior to the filing and presentation of this motion the insurance company had filed a motion for subpoenas duces tecum and had procured an order directing certain doctors to bring into the court records made in reg’ard to examination and condition of health of insured. Furthermore prior to filing motion to' quash, the appellant prepared an agreement to take dépositions in Omaha, Nebraska, upon the merits.of the litigation, and such agreement had been signed'by counsel for both parties.
“Since it is generally held that any action on the part of the defendant is an entry of appearance, except to object to the jurisdiction of the court; or forced to proceed unless all rig’hts are preserved under' proper objection, will be treated as a general appearance. The motion becomes unimportant.”
In the instant case, however, appellant had not entered its appearance, but filed its motion entering its ap-. pearance for no other purpose and preserved its objection •in all proceedings thereafter, and it is not contended that it entered a general appearance.
This court held: ‘ ‘ There is no doubt but that where a party, who has not been served with summons, answers, consents'to a continuance,'goes to trial, takes an appeal; or does any other substantial act in a cause, such party by such act will be deemed to have entered his appearance. But this rule of practice does not apply in cases where the party on the threshold objects to the jurisdiction of his person, and maintains his objection in every pleading he may thereafter file in the case. Where he thus preserves his protest, he can not be said to have waived his objection to the jurisdiction of his person.” Spratley v. Louisiana & Ark. Ry. Co., 77 Ark. 412, 95 S. W. 776.
Our statute provides that where stock is killed the owner may sue the railroad company in the county where the killing or wounding occurred. Section 11148, Pope’s Digest.
This court said in construing the statute last mentioned: “Therefore, to give the court jurisdiction it was necessary for the plaintiff to show that the animal was killed in the county where the court was sitting. The failure to show the venue was fatal to the judgment.” Little Rock & Ft. Smith Ry. Co. v. Jamison, 70 Ark. 346, 68 S. W. 28.
This court also said: . “ The statute requires that actions against railway companies for injuries to stock by train shall be brought in the county where the injury occurred.” St. Louis, Iron Mt. & So. Ry. Co. v. James, 70 Ark. 387, 68 S. W. 153; Continental Casualty Co. v. Toler, 188 Ark. 139, 64 S. W. 2d 322; Duncan Lbr. Co. v. Blaylock, 171 Ark. 397, 284 S. W. 15.
This court has also said: “The allegations of the complaint were sufficient without alleging the county of the residence of the insured and where his death occurred ; since in fact he was a resident of that county and his death occurred there, and it could and would have been shown upon a motion to make the complaint more definite and certain, or upon an objection to the jurisdiction of the court on that account.” Woodmen of Union of America v. Henderson, 186 Ark. 524, 54 S. W. 2d 290.
There are numbers of other cases to the same effect, but it is unnecessary to cite further authorities.
We are of opinion that suits of this character must be brought in the. county where the assured lived, or where he died.
We do not discuss or decide any of the other questions raised. For the reasons stated above the judgment of the circuit court is reversed, and the cause is remanded with directions to sustain the motion to quash. ■
Baker, Donham, JJ., dissent. | [
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GtrieeiN Smith, C. J.
John R. Jones petitioned the chancery court for modification of a decree rendered in 1939, wherein he was granted a divorce from Jewell Jones. From refusal of the chancellor to grant all relief prayed for, the petitioner appealed, and from action of the chancellor in granting any relief the respondent appealed.
Marital travail of the parties is partially set ont in an opinion of this court delivered February 19,1940. The husband’s decree was predicated upon the seventh subdivision of section of act 20, approved January 27, 1939, commonly known as the Three-Year Divorce Law. At page 1003 of the reports it was said:
“Upon the authority of act No. 20 we must affirm the decree for divorce; but the act does not affect our jurisdiction to settle the property rights of the parties and to award alimony; indeed, for those purposes — but for those purposes only — we may consider which spouse is the ‘injured party’ ”.
The record on the last appeal (wherein the wife was appellant) showed the husband’s income for 1938 to have been $4,312. The court said:
“Appellant gave an itemized statement of her average monthly necessary expenses amounting to $175 for the support of herself and son, who has no earning capacity. 'Appellant explained that on account of her health she had no earning capacity except the board paid her by a lady boarder, who lives with appellant in a rented apartment. Upon a consideration of this testimony, we are of the opinion that the allowance should be increased from $85 to $150 per month, and it will remain at that amount until the altered circumstances of the parties suggests a revision. . . . It is said also that appellee is in default to the extent of $240 in payment of the $85 per month allowance heretofore made. If this be true, the court below will, no doubt, upon appropriate application, make suitable orders to enforce its payment.”
In the action from which this appeal comes, the petitioner asked that custody of Billy (nine years of age) be awarded him, and that the divorced wife’s alimony be reduced to $35 per month.
May 15, 1940, the chancellor decreed that the item of $240 mentioned in this court’s opinion of February 19 had been- fully discharged by payments to Billy Jones. Allowance by the Supreme Court of $150 per month to appellant was “approved and allowed” by the chancellor from March 13 to-May 15. The decree then recites that status of the parties had been materially altered, and that in view of such circumstance the award of monthly alimony should be reduced from $150 to $100. In respect of the payment of $100, $85 should go to appellant, ap-pellee to apply the remaining $15 in payment of clothing for Billy, and for lunches; ". . . and at the expiration • of a twelve-month period hereafter, if any unex-pended sum remains out of the said $15 per month, such remainder shall forthwith be paid to the said Jewell Jones. It is further ordered that out of any annual bonus that may be allowed John R. Jones from his present employer for the calendar year 1940, twenty-five percent shall be paid by the defendant to Jewell Jones, immediately npon receipt of snch bonns money.”
The court gave judgment for $130 found to be due Jewell Jones “ under the decretal order of March 13, 1940.”
Otheb Facts — And Opinion.
The attitude of appellee seems to be that of one who longs for desinence of court processes and for an opportunity to forget the obligations he incurred when the contract with appellant was publicly expressed at the marriage altar and witnessed as the law requires.
Having failed to establish cause for divorce other than renunciation and abandonment, both of which are permitted by act 20 and may be availed of when persisted in for three years, appellee now seeks to apply 91.93% of his income to the new condition he has created and to apportion 8.07% to the former contract.
It is insisted that when this court determined ap-pellee should pay appellant $150 monthly for use of herself and son, there was a showing of ill health which prevented appellant from working, while now, under evidence not disputed, that condition, if it existed, has been removed.
There is no testimony that appellant has any new source of income or that she has had an opportunity to engage in gainful employment. On the other hand appellee, during 1939, received a net monthly salary of $371.25, or $4,455 per year. In addition, he was paid a bonus of $750. His total income, therefore, was $5,205 for the year. Amount of the bonus is dependent upon earnings of Pittsburgh Plate Glass Company. The company allows appellant all reasonable expenses. These vary from $75 to $150 per month.
On the face of these figures appellee’s income for 1939 was $893 greater than in 1938.
We see nothing in the situation to justify modification of the monthly award of $150. Nor was it our in tention to permit appellee to discharge the judgment of $240 in favor of appellant by charging her with sums spent at appellant’s discretion on the son.
The fifth footnote is a comparative table. The first column shows what appellee testified was necessary for his.own living’expenses in association with his present wife. For example, it is shown that groceries, etc., cost $55 per month. If appellee’s suggestion of proper alimony payments ($35 per month) should be accepted, and appellant apportioned the money as appellee distributes his expenditures, the result would be that appellant could spend $5.17 per month for groceries and $2.81 for rent, with other purchases in proportion.
Act 20, after stating that the court shall grant an absolute decree of divorce at the suit of either party where husband and wife have lived apart from each other for three consecutive years without cohabitation, contains this language: . and the. question of who is the injured party shall be considered only in the settlement of the property rights of the parties and the question of alimony.”
Clearly (insofar as property may be used to compensate) here is an express direction that courts ascertain which spouse occasioned the injury resulting in divorce by expiration of time, and that compensation be in proportion to the degree of injury; otherwise the sentence would be' meaningless. Greatest tragedy occurs, of course, when the offending husband has no material means from which compensation can be exacted. In all such instances the seventh subdivision of section of act 20 invests the guilty party with legal absolutism, from the consequences of which no relief may be had by the innocent mate. -■
The decree is reversed. Judgment is given here (a) for $240 representing delinquent alimony which accrued .prior to the decree of April 11, 1939; (b) for $5Í1.34 in delinquencies accruing from May 19, 1940 ; (c) for $50 to be paid appellant’s attorney, and (d) for all costs accruing in this court and in the lower court. All items to be paid within fifteen days unless appellant, by' writ- ■ ing filed with the clerk of this court, consents to other arrangements. Beginning December 15, 1940, payments of $150 per month must be made to appellant .'
McHaney, J., dissents.
Prayer of the petition was that custody of Billy, son and only child of petitioner and respondent, be vested in the father, and that “the decretal order of [the chancery court] fix the monthly maintenance of Mrs. Jewell Jones at $35.”
Jones v. Jones, 199 Ark. 1000, 137 S. W. 2d 238.
The husband originally filed suit for divorce, alleging grounds which, if established, would have been sufficient. While the action was pending (March 5, 1936) Mrs. Jones procured a decree of separation and maintenance. There was direction that she be paid $85 per month. Thereafter the husband’s cause was dismissed. March 6_, 1939 — one day after three years of separation — the husband petitioned for modification. He alleged that subsequent to separation the plaintiff, “on occasions, as alleged in the pleadings hereinbefore filed by the defendant, attacked your defendant, and has likewise, as heretofore alleged, embarrassed and humiliated him with a course of conduct deliberately calculated to injure your defendant in his business relationships.” The prayer was that permission be granted to amend the original petition, “and to include as a cause of action for the divorce heretofore prayed herein the three-year separation hereinabove set out.” The response, filed March 27, 1939, contained a denial. It was also said: “Said allegation is identical with allegations heretofore made by the defendant and upon which all available testimony has been taken, the matter being fully developed and presented to the court upon announcement of both parties, . . . and plaintiff pleads the full and complete hearings heretofore had on these allegations before this court as a bar to any retrial of these identical issues and moves that this allegation in the amendment to petition of defendant be dismissed for want of equity. The court announced at the conclusion of the former hearing on this identical issue the testimony of defendant was insufficient to grant a divorce to defendant.”
Hereafter in this opinion Mrs. Jewell Jones will be referred to as appellant, and John R. Jones will he referred to as appellee.
Husband’s .Expenditures^
Groceries, milk, garbage fee, kitchen supplies, etc., $55; lights, gas, water, and telephone, $20; laundry, $10; cleaning and pressing of clothing, including annual cleaning of slip-covers, draperies, rugs, quilts, blankets, $8; automobile expenses: depreciation, $20; gas, oil, $15; repairs, $7.50; tires and tubes, anti-freeze, etc., $25; licenses, state and county taxes, $2.50 — $47.50; maid, upkeep of lawn and premises, $31.50; doctors, dentists, hospitalization, medicines, $19.50; clothing, $45; life insurance, $20.40; lodge dues, donations, $7; miscellaneous housekeeping, including repairs and replacements, $10; taxes, state and county, personal, $3; income tax, state and federal, $5; subscriptions, newspapers, magazines, books, $3; insurance on household goods, $2.50; cosmetics, barber shop, beauty shop, $10; lunches, cigarettes (J. R. J.), $15; clothing, entertainment, and $3 music tuition (Billy Jones, age nine), $20; entertainment in home, shows, personal gifts, etc., $10; rent, $30. Total, $372.40.
Wife’s Suggested Expenditures
Groceries,’ milk, garbage fee, kitchen supplies, etc., $5.18; lights, gas, water, and telephone, $1.88; laundry, $.93; cleaning and pressing of clothing, including annual cleaning of slip-covers, draperies, rugs, quilts, blankets, $.75; automobile expenses: including depreciation, gas, oil, repairs, tires and tubes, antifreeze, etc., licenses, state and county taxes, $4.47; maid, upkeep of lawn and premises, $2.97; doctors, dentists, hospitalization, medicines, $1.83; clothing, $4.22; life insurance, $1.91; lodge dues, donations, $.66; miscellaneous housekeeping, including repairs and replacements, $.94; taxes, state and county, personal, $.28; income tax, state and federal, $.47; subscriptions, newspapers, magazines, books, $.28; insurance on household goods, $.23; cosmetics, barber shop, beauty shop, $.94; lunches, cigarettes (J. R. J.) $1.40; clothing, entertainment, and music tuition (Billy Jones, age nine), $1.88; entertainment in home, shows, personal gifts, etc., $.94; rent, $2.82. Total, $35.
Last item in the first column is “rent, $30.” It is conceded that the present Mrs. Jones owns the house in which she resides with appellee, but appellee says there was an understanding he should pay rent, and this obligation was discharged by making certain improvements.
After the opinion of this court was handed down February 19, 1940, appellee paid at the rate of $150 per month for two months, and thereafter, beginning April 19, reduced his payments to $85 per month. He owes the difference of $65 per month for the periods ending on the 19th of May, June, July, August, September, October, and November. His payments are made on the first and fifteenth of each month, and he has settled on the basis of $85 per month until December 15. For the 26 days from November 19 to December 16 the unpaid alimony is $56.34, or a total accumulation of $511.34, plus $240. | [
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Humphreys, J.
This suit was brought in the circuit court of Poinsett county by appellee against appellant to recover $541.38, for current and service furnished under a written contract entered into on April 20,1935, and a supplemental agreement under date of September 7, 1935, reducing the rates, for operating a shingle mill at Lepaiito. The rates specified in the written contract were:
“500 per hp per month connected; 30 first 60 kwh per hp connected at 2%c per kwh; 30 next 120 kwh per hp connected at 2c per kwh; Excess kwh at l%c per kwh.”
Appellant filed an answer denying the material allegations of the complaint and a cross-complaint, in substance, to the effect that he entered into a verbal contract with appellant to purchase from it a 50-horse power electric motor for $400, payable $100 cash and $25 per month, to operate a shingle mill at Lepanto and to pay for electric service or current at $4 for each 10 hours days’ operation; that he dismantled his equipment designed for steam power, and appellee installed said electric motor; that thereafter, on the first day of each month, in violation of the terms of the oral agreement, appellant charged him rates in excess of $4 for each 10 hour days’ operation over appellant’s numerous protests; that appellant used the electric current until the motor ceased, and instead of repairing the motor appel-lee removed same, and by reason of the failure to repair same and the removal thereof, appellant was required to install steam engine to operate his shingle mill at the expense of $100 for a boiler, $125 for a steam engine, $40 for a smoke stack, $15 for steam pipes, $10 for water pump, $50 for brick, $75 for labor in the installation thereof, and at a loss of $500 in profits while installing same; that he paid $126 on the motor which he is entitled to recover; that under the oral contract appellant operated the motor sixty 10-hour days, and is indebted to appellee in the sum of $240 which he tendered, and it refused to accept; that appellant has paid appellee a total of $111.95, leaving a balance due of $128.05 which he tenders and offers to pay; that on account of the breach of the oral contract appellant is entitled to recover $915 damages and appellee $128.05 for current.
The record reflects that the terms of the contract for the purchase and installation of the motor and prices to be paid for current were talked over between appellant and W. H. Howze, the representative of appellee, several times before the motor was installed and connected with current, with the understanding that a written contract should be entered into and signed by the parties covering the terms agreed upon.
W. H. Howze testified the contract, as written, provided rates to be charged were the rates agreed upon between the parties and appellant testified that lie signed the written contract under the representation by W. H. Iiowze, that the technical words specifying the rate charged meant that the charge for current would not exceed $4 per day for each 10-hour day of operation. The rate for current specified and set up in the written contract is in the following words:
“500 per hp per month connected; 30 first 60 kwh per hp connected at 2^c per kwh; 30 next 120 kwh per hp connected at 2c per kwh; Excess kwh at l%c per kwh.”
There is no dispute that the motor was installed and current connected a few days before the written contract was executed, and that it was operated and not disconnected until in November, 1935, when it was struck by lightning.
The original bills or accounts were rendered under the terms of the written contract, two of which charges were paid by appellant under protest, but subsequently the rate was reduced one-half and the bill rendered in keeping with the reduction, showing a balance due for current in the sum of $541.38, for which amount this suit is brought.
Two letters were written demanding settlement for current on that basis which were ignored and not answered by appellant.
There is no dispute that appellant agreed to pay $400 for the motor, $100 cash and $25 per month for the unpaid purchase money which was evidenced by promissory notes.
Appellant paid $100 cash and one note, and under protest made two payments on the current furnished, as per charge under the written contract.
Appellant admitted signing the written contract, but testified that a copy was not delivered back to him, and for that reason was not a completed contract, and for the further reason that the technical words relating to prices of current were explained to him to mean that the charge for current was to be $4 per day for each 10-hour days’ operation. Appellant testified to his ver sion of tlie oral contract, but admitted that the oral contract was talked over and agreed upon before the written contract was executed.
When appellant refused to pay for current and the motor was injured by lightning, appellee repossessed it by consent of appellant.
The written contract contained a provision that “this- agreement supersedes all prior agreements between the company (appellee) and consumer for services mentioned herein,” and the contract introduced in evidence was signed by appellant and appellee. Pour copies of the contract were made including the original, but it seems that the company kept all of them and failed to return a copy to appellant. Cause was submitted to a j ury upon instruction of the court resulting in a verdict and judgment against appellant for $416.28, from which is this appeal.
Appellant only asked one instruction which is as follows :
“You are instructed that the alleged written agreement sued upon and introduced in evidence is of no validity for the reason that at the time A. Stevens signed same, it had not been signed and accepted by the duly authorized agent of the company, and that since it was signed by the agent of the company, if it was signed by that agent; there was no execution or delivery to the defendant, as the evidence was undisputed that there were four copies, one being retained by the general office, two being retained by the local office, and no copy delivered to the defendant in this case,” ‘which request of the defendant was denied by the court, to which ruling of the court the defendant at the time excepted, and asked that his exceptions be noted of record, which was done. ’
The court refused to give the instruction over appellant’s objection. Appellant’s argument is there was not a complete written contract, because he was not furnished a copy of it after, the company had approved and signed it. There is no question that the contract was approved and signed by the company after it had been signed by the appellant. There is nothing in the contract to the effect that it should not 'be a completed contract until a copy was delivered back to appellant. There is a provision in the. contract that it should not be effective until approved and signed by the company. This was done, and we think became .a completed contract when approved and signed by the company. It had already been approved and signed by the appellant. The court was, therefore, correct in assuming, as a matter of law, that the contract was complete when both parties approved and signed it, and was correct in refusing to give appellant’s requested instruction.
Appellant also argues that the written contract was void on account of fraud practiced upon him. No fraud was alleged in the cross-complaint of appellant. It is true that appellant testified that he signed the contract because of the explanation of W. H. Howze relative to the technical words used in same as meaning that the rate for current would not exceed $4 per 10-hour day for operation, but this was not an attempt on his part to void the contract for fraud and responsive to any allegation of fraud, for none was alleged, but for.the purpose of showing that he was to pay $4 per day for current for each 10-hour days’ operation and to reduce appellee’s recovery to that amount.
At the conclusion of the evidence the trial court, over the objection and exceptions of appellant, summed up the case as follows:
“The plaintiff in this case, The Arkansas Power & Light Company, sues the defendant, A. Stevens, for the purchase price of electric current that the plaintiff says that they furnished to defendant in accordance with the rates set out in the written contract herein introduced in evidence and the supplemental contract, and they say that the defendant owes to them at this time the sum of $541.38, which they say is due them by reason of electricity furnished under the contract offered in evidence and the supplemental deduction in rate. The defendant admits that he signed said contract, but denies that he owes them the said sum of $541.38 for the current used. He says that the electric motor mentioned in the written contract was sold to Mm under tire representation that it would not use in excess of $4 for each 10-hour day, and he says he relied on such representation and would not have bought said motor except for such representation, and that such representation was false, and in truth and in fact it used in excess of $4 worth of current for each 10-hour day, and he says he has surrendered said motor back to' the plaintiff, and asked for a credit on any sum that the jury may find he owes plaintiff the amount that he has paid on the purchase price of said motor, which is admitted by all parties to be the sum of $125.”
Following the summation of the case the court, over the objection of appellant, gave the following instruction to the jury:
“If you find from the evidence in this case that the plaintiff did represent to the defendant as an inducement to get him to purchase said electric motor that the said electric motor would not use current in excess of $4 per day for each 10-hour day, and further find that such representation was false, and that the defendant believed such representation to be true, relied upon the same and purchased said motor on account of said representation, then you are told that he would be entitled to rescind the contract for the purchase of said motor and recover back from the plaintiff the amount that he had paid on said purchase price, which is the sum of $125. Otherwise, he would not be entitled to recover anything from the plaintiff by reason of the purchase of said motor. So in this case your verdict will be for the plaintiff for such sums as you may find from the evidence in this case that the defendant owes to the plaintiff for electric current used in accordance with the rate fixed in the written contract and the supplemental contract less the credit of $125, if you should find that the purchase of the motor was induced by fraud in accordance with the above instructions. If you find that it was not induced by fraud, then the plaintiff would be entitled to recover the full amount of such current used, with no credits deducted therefrom.”
We find no error either in the summation of the case by the trial court nor the instruction given by him relative to the issue as to the amount appellee should recover, if any, under the written contract as to rates for current. Especially is it a correct instruction in view of the fact that the oral'contract contended for by appellant and all the terms thereof merged in the written contract under the provisions in' the written contract. In other words, as we view the case, and as the trial court viewed it, there was no oral contract under the law and admissible evidence, covering rates for current used in the operation of the shingle mill.
No error appearing, the judgment is affirmed. | [
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McHaney, J.
Appellant brought this action in replevin to recover from the possession of appellee, Burns, certain personal property described in the complaint, and which constituted the equipment of a bulk oil plant located on the railroad right-of-way in the town of Flippin, Arkansas. Bond was given to obtain the immediate possession thereof, conditioned as required by law, on which an order of delivery and summons was issued and served on said appellee who gave bond to retain the possession. An answer was filed by him in which he disclosed that the other appellee, Blankenship, was his associate or partner, and he was later made a party defendant to the action. In addition to a general denial of all the material allegations of the complaint, he alleged he entered into -a written contract with Mauriqe Sloans, Sr. and Jr., who were operating under the name of Essarco Petroleum Company by which they agreed to sell to appellees gasoline, kerosene, motor oils and sundries at wholesale for them to resell at their station in Flippin and adjacent territory for a period of five years with, a renewal option; that, subsequent to and in connection with said written contract; the Sloans desired to sell them large quantities of equipment and supplies, exceeding $3,000, and to induce them to do so, the Sloans agreed orally to place and have installed in Flippin the very property involved in'this action and to deliver same to appellees to hold as a pledge and guaranty of the faithful performance of the written contract, would furnish the products therein set out at the prices mentioned therein for the full period of said contract, and further that they would spend a large portion of their time at Flippin and in said territory drumming up business for appellees hnd that if the Sloans failed to perform all the conditions of both the written and oral contracts appellees should hold the properties here involved until a full settlement was had; that appellees would not have purchased said material and supplies, except for said promises, in a sum exceeding $3,000; that before the consummation of said purchases the Sloans put the property here involved on the grounds and directed appellees to install same at Sloan’s expense; that they installed said property and incurred an expense of $207, for which they have not been paid and they claim a lien on said property for same. Other damages were claimed against the Sloans as a ground to deny possession of the property to appellant. A reply was filed by appellant denying all the material allegations of the answer. Trial resulted in a verdict and judgment for appellees, and this appeal followed.
We agree with appellant that the learned trial court erred in refusing to direct a verdict for him at his request. Taking the testimony of appellee Burns and viewing it in the light most favorable to appellees, as we are required to do in determining its sufficiency to support the verdict and judgment, we think it is not sufficiently substantial to justify the finding made. Blankenship did not testify. Burns’ testimony was that Sloan built a bulk oil plant on land leased by Sloan from the railroad company. Appellees built a retail plant on the same plot of ground which they leased from Sloan, and that Sloan was indebted to them for $207 for labor and materials furnished. He is contradicted in this testimony by his own letters written after the alleged indebtedness accrued, in none of which did he ever mention or claim that Sloan was indebted to appellees in any amount whatsoever. Numerous remittances were made by appellees to Sloan to cover amounts due him for merchandise and requests for additional time in which to pay. Approximately 50 letters were written by Burns to Sloan beginning in 1936 and running to October, 1937, and in none of them did he ever intimate that Sloan owed him $207 or any other amount, except that, under date of December 15, 1936, he rendered Sloan a bill for $18.31 for labor of Loyne Hurst on the bulk plant, storage on truck tank and two items of freight paid by him, which bill was paid by Sloan, and nothing was said concerning any additional indebtedness of $207 on the bulk plant, or anything else. Appellees leased the bulk plant and ground for their service station from Sloan under, a written contract, in which they agreed to and did pay Sloan $30 per month. If the bulk plant were pledged to them, why was it not mentioned in the lease? It appears to us that this is an effort to vary the terms of both the written petroleum sales contract, of April 1, 1936, in which one paragraph states: “This contract contains the entire agreements of the parties hereto. There are no oral promises or warranties affecting it and none shall be valid,” and the written lease contract covering the operation of the bulk plant, which, it is conceded, cannot be done. It is also claimed that Sloan breached the petroleum sales contract by failing to drum up business for him in his territory, but the contract-makes no such provision, and neither contract provides for a pledge of the property.
We conclude, therefore, that there was no pledge. It is undisputed that Sloan sold the property to appellant who purchased same in good faith. He is, therefore, entitled to the possession of same and whatever damages he has sustained by reason of being deprived thereof. The judgment is reversed and the cause remanded for this purpose. | [
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Smith, J.
Appellee — plaintiff below — seeks by this suit to enjoin the erection and maintenance of a fence parallel with and extending into a road running- through the center of section 22, township 6 north, range 20 west. It was alleged and the court below found the fact to be “That said road is a public thoroughfare by prescription,” and upon this finding enjoined its obstruction. It is conceded that the erection of the fence operates to prevent the use of the road as such.
The testimony is conflicting as to whether the road had become public, and we are unable to say that the chancellor’s finding on this question of fact is contrary to the preponderance of the evidence.
The grounds chiefly relied upon for a reversal are (1) that if the road had become public by prescription, it had ceased to be so by nonuser, and (2) that appellee had no such special interest as entitled him to maintain this suit.
The excellent briefs filed by opposing counsel manifest a thorough investigation of our numerous cases on these subjects. It is conceded by appellant that a road may become public by prescription. We have numerous cases so holding; and we shall not review them, but it was held in the case of McLain v. Keel, 135 Ark. 496, 205 S. W. 894, that “. . . 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.”
The testimony is as conflicting as to whether the road had been abandoned as a public road as it was as to whether it had become a public road by prescription. But upon that question we are unwilling to disturb the finding of the court below as being contrary to the preponderance of the evidence. One of the strongest circumstances tending to show abandonment was that for a number of years the road had not been worked under the directions of the county court as a public road. It was held in the case of Brumley v. State, 83 Ark. 236, 103 S. W. 615, that “The fact that the road overseers had not repaired or worked a road within seven years did not constitute an abandonment of the road by the public. ’ ’ There was testimony in the instant case to the effect that road overseers had not worked the road for a longer period of time than seven years; but, under the authority of the case just quoted from, this was a circumstance to be, and which has been, considered in connection with other testimony upon that issue, without being conclusive of it.
The remaining question is whether appellee had such a special interest as entitled him to bring suit in his own name to enjoin the obstruction of the road. Our leading case on this subject appears to be Wellborn v. Davies, 40 Ark. 83, where the right was denied. The headnote in that case reads as follows: “Injunction may be main tained by a private person against the creation or continuance of a private nuisance even where the damag’es are merely nominal; and also against a public nuisance from which he suffers a special and peculiar injury not common to the citizens generally. But in regard to enclosures of a public highway and other nuisances of a public nature affecting a common right, the remedy is by indictment, or by proceedings of some public officer on behalf of the public and for the common benefit. ’ ’ But that case recognized the right of the citizen who had suffered a special or peculiar injury to maintain such a suit.
The court below found the fact to be “That said road constitutes the means of ingress and egress to plaintiff’s land, and that plaintiff has an especial interest in said road, and is entitled to maintain this action.” The testimony appears to support this finding. It is to the effect that with the road in question closed to the public appel-lee will be required to travel about two and one-half miles farther to reach his farm, and that he can do so even then only by using the field turn rows of adjacent owners for a distance of more than half a mile. The use of these turn rows is permissive, and might be withdrawn at any time, in which event appellee would be without means of access to his land. This, we think, constitutes a special interest within the meaning of the cases requiring that interest to be shown as a condition upon which injunctive relief will be guanted. Ruffner v. Phelps, 65 Ark. 410, 46 S. W. 728; Citizens Pipe Line Co. v. Twin City Pipe Line Co., 178 Ark. 309, 10 S. W. 2d 493.
The decree is correct, and is, therefore, affirmed. | [
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Holt, J.
Appellees, Hollis & Company and Arkansas Mill Supply Company, filed separate suits in the Pulaski circuit court, under the provisions of § 14086 of Pope’s Digest, to recover $2,865.73 and $1,606.83, respectively, sales tax paid by them under protest to appellant, the Commissioner of Revenues for the state of Arkansas. By agreement, the causes were consolidated for trial and were heard before the court, sitting as a jury, on an agreed statement of facts. There was a finding in favor of appellees and from a judgment ordering appellant to refund to appellees the taxes in question comes this appeal.
It is earnestly insisted by appellees that we should affirm here for the reason that appellant is precluded from the reassessment and collection of these taxes under the provisions of § 13899 of Pope’s Digest which reads as follows: “After the assessment and full payment of any general property, privilege or excise tax, no proceedings shall hereafter be brought or maintained for the reassessment of the value on which such tax is based, except for actual fraud of the taxpayer, provided that failure to assess taxes as required by law shall be prima facie evidence of fraud.”
The record reflects that appellees each month during 1939, the time in question, made to appellant on forms which it furnished, sales tax reports, each monthly report being in exact form and manner.
One of the Arkansas Mill Supply Company’s reports is _as follows:
“Computation of Taxable Sales
‘ ‘ Total charged sales for
the month.:.$13,374.75 sales tax inch
“Total cash sales for
the month. 481.96 sales tax incl.
“Total sales from all sources for the month.$13,856.71
“Less sales which are not taxable
“(d) Sales for resale.$1,848.29
“Total sales which are not taxable
(to be deducted) .$7,837.18
“Taxable sales (remainder after deductions). 6,019.53
& Company.
“Computation of Tax
“Total tax and penalty (remittance must be for
this amount) ..$120.39”
On the reverse side of the report the following information was given:
“Schedule ‘goods returned’ and ‘other reductions’ and give a brief explanation thereof.
“Sales tax charged customers and included
in total amount of sales..$ 120.39
“Postage and prepaid freight items . 45.06
“Federal Farm Security and IT. S. Engineers 25.20 “Interstate Commerce sales. 5,798.24
$5,988.89”
One of the monthly reports of Hollis & Company is as follows:
“Computation of Taxable Sales “Total charged sales for
the month...$26,318.21
“Total cash sales for the month 704.81
“Total sales from all sources for the month.$27,023.02
“Less sales which are not taxable:
“(e) Goods returned which • previously reported as
sales .$ 328.90
“(f) Other deductions authorized by law. 14,866.04
“Total sales which are not taxable
(to be deducted) .$15,195.03
“Taxable sales (remainder after deduction) . 11,827.99
“Computation of'Tax
“Tax due state — 2% of taxable sales .$236.56 > 5
It will be observed that these reports are identical in form except that appellee, Hollis & Company, did not fill out the blank on the reverse side of the report.
We quote from the agreed statement of facts applicable to both cases as follows:
“The defendant and Ms predecessors in office have at all times construed these sales as being transactions in interstate commerce, and not subject to the Arkansas Retail Sales Tax Law, until the decision of the Supreme Court of the United States, rendered January 29, 1940, in the case of Joseph D. McGoldrick, Comptroller of the City of New York, v. Berwind-White Coal Mining Company, 309 U. S. 33, 60 S. Ct. 388, 84 L. Ed. 565, 128 A. L. R. 876, and have advised plaintiff and other merchants in like situation, that it was not their duty to collect sales taxes upon said transactions, and plaintiff did not collect sales taxes upon said transactions. . . .
“Between February 6 and March 12, 1940, after the decision of the Supreme Court of the United States, above referred to, rendered January 29, 1940, defendant made an audit of plaintiff’s reports, books and records of sales made by plaintiff for the year 1939. Said audit was not made for the purpose of determining’ whether plaintiff was collecting and paying taxes on said sales, because defendant knew plaintiff and other merchants were not collecting and paying taxes thereon.”
It also appears that appellant had advised appellees that it was not their duty to collect the sales tax upon the transactions in question and that “it was well understood by both plaintiff and defendant that the item of deductions authorized by law covered sales made in interstate shipments and defendant' at all times knew that plaintiff was not making collections and paying taxes on such sales.”
Appellant earnestly urges that all issues presented here in the case of Hollis & Company have been already adjudicated as to it by the decision in the case of Hollis & Company v. McCarroll, Commissioner, 200 Ark. 523, 140 S. W. 2d 420. We cannot agree to this contention.
The above case went off on demurrer. It was held in that case that the complaint did not state a cause of action and the suit was dismissed. After the opinion by this court in that case, appellees paid the tax under protest, as has been indicated, and along with appellee, Arkansas Mill Supply Company, brought suits at law to recover the taxes so paid. While it is true that a judgment on demurrer is an adjudication on the merits and bars another action on the same facts, it is equally true that the plaintiff is not precluded from filing a new action based on different facts, and this, we think, was what was done by Hollis & Company.
In Barrentine v. The Henry Wrape Co., 113 Ark. 196, 167 S. W. 1115, this court said: “We have held that a judgment sustaining a demurrer is an adjudication of the case upon its merits and that any error in rendering the judgment must be corrected on appeal. Luttrell v. Reynolds, 63 Ark. 254, 37 S. W.1051.
“But Mr. Herman states the rule that ‘if the plaintiff fails on demurrer in his first action from the omission of an essential allegation in his declaration which is fully supplied in his second suit, the judgment in the first action is no bar to the second, although the respective actions were instituted to enforce the same right; for the reason that the merits of that cause, as disclosed in the second declaration, were not heard and decided in the first.’ 1 Herman on Estoppel, § 273.”
On this record it appears that both appellees each month filed the sales tax report required of them by appellant on forms which appellant furnished. They concealed nothing in these reports. They reported all sales made in interstate commerce upon which no sales tax had been collected by them, it being the belief of appellant, as well as appellees, (until the decision of the Supreme Court of the United States, supra), that no taxes were due on such sales.
Appellees, as indicated, reported all sales to appellant showing those sales which were not taxable and in the agreed statement of facts “it was well understood by both plaintiff and defendant that the item of deductions authorized by law covered sales made in interstate shipments, and defendant at all times knew that plaintiff was not making collections and paying taxes on such sales.”
Appellees were not primarily charged with the payment of the taxes in question, but only became liable for failure to collect a tax validly due. They were at all times advised by appellant that they should not collect the sales tax on these transactions which were then classified as interstate.
In the case of State v. New York Life Insurance Company, 198 Ark. 820, 131 S. W. 2d 639, this court said: “It will be observed that the inhibitions of this statute are not directed against suits for the collection of the general ad valorem taxes alone. It applies also to suits for the collection of privilege and excise taxes. . . .
“There was not, it is true, any statement or assessment of the total premiums received, but a statement was filed of all premiums thought to be taxable. Appel-lee insurance company concealed nothing, but correctly disclosed all the information required. The blanks furnished by the state required the insurance company to disclose the premiums received from ‘ordinary,’ ‘group,’ and ‘industrial’ policies, and this was correctly done. The statute prohibits suits for back taxes ‘except for actual fraud of the taxpayer. ’ Here there is no element of fraud, and for that reason the suit was, in our opinion, properly dismissed.”
In the instant case, as we have indicated, both ap-pellees concealed nothing, but correctly disclosed all the information required. In fact, as revealed by the agreed statement of facts, the audits made by appellant, and the demands under which these taxes were paid by ap-pellees, were not made because of any errors made in statements by appellees or in facts discovered by audits. The figures derived from the audits as made conformed to the reports which had been made by the appellees, and after the making of said audits, appellant made demand upon appellees for taxes on said sales. Appellant gained nothing more from its audits of appellees ’ transactions than it already knew.
While it is true that it was the duty of the Revenue Commissioner to make the assessments of the tax against appellees, and to make an audit if he thought it necessary in making the assessments, we think this is in effect what he did. Therefore, it is our view that appel- lees, on the record here, are entitled to the protection of the provisions of § 13899 of Pope’s Digest, and that they are not precluded by the decision of this court in the case of Hollis & Company v. McCarroll, Commissioner, supra, and cases there cited.
In the Hollis case [200 Ark. 523, 140 S. W. 2d 423] we said: “The complaint, however, alleges that from time to time audits of appellant’s business were made by state agents. If in consequence of such audits appellant made an assessment of the items in question, but did not pay the tax because of the commissioner’s ruling that it was not to be included in the declarations, then, under authority of the New York Life Insurance Company case, supra, and Superior Bath House Co. v. McCarroll, Commissioner, [200 Ark. 233, 139 S. W. 2d 378], the tax for disclosed and reported periods would not be assessable.”
We do not think the late case of Terminal Oil Co. v. McCarroll, Commissioner, ante, p. 830, 147 S. W. 2d 352, controlling here.
On the whole case, finding no error, the judgment is affirmed. | [
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Smith, J.
At the general election held in Poinsett County on November 6, 1928, a majority of the electors voted in favor of a “stock law,” and this suit was brought to enjoin the officers of the county from putting the election into effect. As ground therefor it is alleged that neither the election commissioners nor the sheriff of the county gave notice thereof by proclamation or ' otherwise, and that the election was void as having been held without legal authority.
The election was held pursuant to act 205 of the Acts, of 1927. Acts 1927, page 686. It is there provided that ten per cent, of the electors of any county in the State may petition the county court to order an election restraining certain animals from running at large, and when such petition is filed it is made the duty of the county court to “malee an order for such election to be held at any general or special election of the county or State officers.”
The act further provides that: “The county court may make an order calling said election to be held on a day other than for the election for State, county or township officers, said day to be named in said order, when a bond is filed by said petitioners that they will pay all costs of said special election; that all special elections shall be held under the provisions of the general election laws of this State. * *” and if the majority vote is in favor of restraining the stock, the county clerk shall give notice of that fact by publication in some newspaper of the county.
The petition upon which the election in question was held was filed with the county court on October 24, 1928, and the prayer thereof was granted by an order of the court made and entered of record that day, and the election was ordered as prayed by petitioners, to be held at the ensuing general election, November 6, 1928.
Neither the election commissioners nor the sheriff gave notice, by proclamation or otherwise, that the stock law in question would be voted on at the general election, but the petitioners caused a certified copy of the order of the county court ordering the election to be published in The Modern News, a newspaper of general circulation published at Harrisburg, the county seat, on October 26, 1928, and in the issue a week later the order was published a second time.
It appears, from a stipulation entered into by opposing counsel at the trial from which this appeal comes, that at the 1926 general election only 1,740 persons voted for Governor, whereas 3,346 votes were cast at the 1928 general election for candidates for that office. The highest vote cast for the candidates for any office in 1928 was 3,550 and the lowest 3,167. The highest vote oast upon any question at the 1928 election was 3,204, this being the total vote on the stock law, of which 2,113 were cast for the law and 1,091 against it, and the lowest vote cast on any question was 2,787, this vote being cast upon proposed Constitutional Amendment No. 18.
The cause was heard on a stipulation covering the above and other facts, and the suit was dismissed as being without equity, and this appeal is from that decree.
Learned counsel for appellants contends that the election here questioned was a special and not a general one, and that there was no such notice as the law requires to make it legal. It is pointed out that by § 3717, C. & M. Digest, it is made the duty of the sheriff to give notice by a proclamation twenty days before a general election and for ten days before a special one, and § 3718, C. & M. Digest, requires that a copy of this proclamation be posted at the places fixed for holding the election and in two or more public places in each township, and that a copy be published in a newspaper, if one be published in the county. No notice was given by the election commissioners under § 3720, C. & M. Digest.
Did the failure to comply with the statute cited invalidate the election? The chancellor held that it did not; and we concur in that holding.
The case of Wheat v. Smith, 50 Ark. 266, 7 S. W. 161, was a contest over the office of circuit clerk, arising out of a special election to fill a vacancy in that office, and the validity of the election was questioned upon the ground that the notice required by the statute had not been given. In holding the election valid, Chief Justice Cockrill said:
“When a special election to fill a vacancy is ordered, there is no presumption that the voters know the date fixed by the writ of election, and they must be informed of it. But the established rule is that the particular form and manner pointed out by the statute for giving notice is not essential. Actual notice to the great body of electors is sufficient. The question in such oases is whether the want of the statutory notice has resulted in depriving sufficient of the electors of the opportunity to exercise their franchise, to change the result of the election. McCrary on Elections, §§ 141-48; Commonwealth v. Smith, 132 Mass. 289; State v. Orvis, 20 Wis. 235; State v. McKinney, 25 Id. 416; Dishon v. Smith, 10 Iowa 212; State v. Skirving, 19 Neb. 497.
“The courts hold that ‘the voice of the people is not to be rejected for a defect or want of notice, if they liave in truth been called upon and have spoken.’ Dishon v. Smith, supra. If the law were otherwise, it would, as was said by the court in Foster v. Scarff, 15 Ohio St. 532, ‘always be in the power of a ministerial officer by his malfeasance to prevent a legal election.’ When the election is legally ordered, and the electors are actually apprised of the time and place appointed for holding it, the misfeasance or nonfeasance of the officer upon whom' the statute-devolves the duty of giving the election notice cannot deprive the electors of the right to express their will through their ballots.”
This has become a leading case, and has been cited many times by this and other courts.
Here it appears that the order of the county court ordering the’ election was twice published in the county newspapers, the first publication being ten days before the election, and the great body of the electors appear to have been apprised of the election and to have voted at it. It is a matter of common knowledge that the submission of such a question as a stock law arouses the widest interest and frequently the bitterest feeling, and it is highly probable that the submission of this question at the 1928 election caused the vote at that election to be almost double the vote cast at the preceding general election of 1926. A majority of more than a thousand and a vote of nearly two to one was cast in favor of the stock law, and there appears therefore to be no question whether the want of. the statutory notice has resulted in depriving sufficient of the electors of the opportunity to exercise their franchise to change the result of the election.
In the case of Wallace v. Kansas City Sou. Ry. Co., 169 Ark. 905, 279 S. W. 1, we quoted from the case of Hogins v. Bulloch, 92 Arn. 67, 121 S. W. 1064, 19 Ann. Cas. 822, the following quotation from the Supreme Court of Indiana:
“ ‘All provisions of the election, law are mandatory if enforcement is sought before election in a direct proceeding for that purpose, but after election all should be held directory only, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote, or to the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of an election, or that its omission shall render it void.’ Jones v. State, 153 Ind. 440, 55 N. E. 229.”
So here the statutory provisions were mandatory in the sense that compliance with them could have been coerced before the election, but, as the notice which was given, while not complying with the statute, appears to have been sufficient to apprise the great body of the electors of the fact that the election would be held, and they have participated therein, we are constrained to affirm the action of the chancellor in upholding the election.
Decree affirmed. | [
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Kirby, J.
This appeal is prosecuted by appellant company from a decree holding it liable as a surety on a receiver’s bond for the payment of certain money collected by the receiver and deposited in the Bank of Smackover, which failed, resulting’ in the loss of the amount deposited.
The original action was commenced by one partner against the other partners'to wind up the affairs of the partnership, and Homer T. Rogers was appointed receiver to take charge of the assets, and gave bond in due course, with the appellant company as surety. The bond was conditioned in the terms of the statute, “that he will faithfully discharge the duties incumbent on him and faithfully account for and pay into court * * * all moneys or assets which shall come to his hands as such receiver in the case.” The receiver made his final report showing ‘ ‘ cash not collectible in the Bank of Smack-over $583.66,” and asked that the surety be discharged from its liability on the bond for the loss of the money in the failed bank. Exceptions were filed to that part of the report asking his discharge from such liability.
Appellant insists that the receiver did only what any reasonably prudent man could have done under the circumstances, in making the deposit of the funds in his hands, as such receiver, in the bank, which later failed, there being no indication of its insolvency at the time, nor anything shown in the record to excite the suspicion of a reasonably prudent man that it was not solvent and a safe depository of the funds. He insists that the rule relative to the question should he the same as laid down by this court for the liability of administrators to account for and make settlement of their estates, as held in Harper v. Betts, 177 Ark. 978, 8 S. W. (2d) 464, 11 R. C. L. 158, 23 R. C. L. 81; 1 Tardy’s Smith on Receivers, 201.
The receiver is an officer of the court appointing him, and the condition of the receiver’s 'bond, as prescribed by statute, is different from that required of administrators, the receiver being bound to account for and pay into court all money or assets which shall come into his hands as such receiver, and in that respect like the bonds of the public officials, requiring them to account for and pay over money coming into their hands as such. Sections 1906, 2832, 10029, C. & M. Digest.
In State v. Huxtable, 178 Ark. 361, 12 S. W. (2d) 1, it was held that the county treasurer'and his bondsmen were bound to the payment of funds of a special school district deposited without negligence by him in a bank which failed, causing the loss of the fund, and notwithstanding the county court had allowed credit thereon in settlement of the treasurer’s account. It ivas there said:
“The general rule with respect to the liability of public officers and their sureties for the loss of public moneys is that where the statute, in express terms, imposes the duty to pay over public funds received and held as such, and no condition limiting that obligation is in the statute, the obligation thus imposed upon and assumed by the officer is absolute, and the plea that the money has been lost without his fault does not constitute a defense to an action for its recovery.” And also: “In short, the settled rule is that public policy requires that every depository of public money should be held to strict accountability. The obligation to keep safely the public money is absolute, without any condition, express or implied. Nothing but the payment of it when required can discharge the bond, unless by statutory authority. ’ ’
Appellant is a commercial surety, and held to strict accountability, and nothing but the payment, when required, by his principal, of the money coming into his hands as receiver, could discharge him, as the court correctly held. State v. Huxtable, supra; see also Glaflin Co. v. Gibson (Ky.), 54 S>. W. 439; Baldwin v. Owens (Ky.), 51 S. W. 440; State v. Chicago Bonding Co., 279 Mo. 535, '215 S. W. 20; U. S. Fidelity & Guaranty Co. v. Freedmmi (Ohio App.) 164 N. E. 800.
We find no error in the record, and the judgment is affirmed. | [
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Smith, J.
The prosecuting attorney of the ninth judicial circuit, of which Pike county is a part, filed an information in the Pike county circuit court, in which it was alleged that the Pekin. Cooperage Company, a foreign .corporation, had been doing business in Pike county without complying with the statutes of this state authorizing foreign corporation's to transact business withip the state. An answer was filed denying’ all the material allegations of the information.
A jury was waived, and the court found that the defendant had operated a business in this state, and the sufficiency of the testimony to support that finding is conceded, but it is contended that competent and sufficient testimony was not offered that the defendant had failed to comply with the laws of this state authorizing it so to do. The correctness of this contention is the question presented by this appeal.
Upon this issue the following certificate was offered in evidence over the objection and exception of the defendant:
‘ ‘ Certificate
‘ ‘ State. of Arkansas
“Department of State
“Little Bock
“C. Gr. Hall,
“Secretary of State.
“I, C. Gr.'Hall, Secretary of State, of the state of Arkansas, and as such, keeper of the corporation records, do hereby certify that the records of this office show the Pekin Cooperage Company was not authorized to do business in this state during the years of 1936 and 1937. This company qualified December 28, 1898, and withdrew February 25, 1935.
“C. G. Hall,
“Secretary of State.”
“Given under my hand and seal of office on this the 22nd day of March, 1938.”
The contention was made at the trial below, and is renewed here, that this certificate was unauthorized by law, and was not competent and sufficient to establish the fact that defendant Avas not authorized to do business in this state.'
To sustain the judgment of the trial court that this certificate kvas sufficient to support the finding that defendant' had nót complied with the law we are cited to § 5143, Pope’s Digest, and to the case of Austell v. Union Central Life Ins. Co., 175 Ark. 1143, 2 S. W. 2d 22. Section 5143, Pope’s Digest, reads as follows: “Copies of any record, book, report, paper or other document on file with, or of record in, the office of any public officer or commission of tbe state, or of any county officer, or any' excerpts from such record, book, report, paper or other document, when duly certified by the officer or the secretary of the commission in whose custody'such record, book, paper or other document is found, shall be received in evidence in any court of this state with like effect as the originals thereof.”
This section of the statutes does not render the certificate copied above competent as evidence, as it does not profess to be a copy of any' record, book, report, paper, or other document on file with, or of record in, the office of the Secretary of State. On the contrary, it recites a negative fact, as to the truth and accuracy of which the defendant was afforded no opportunity to examine or cross-examine the person making the certificate.
Nor, in our opinion, does the Austell case, swpra, support the ruling of the trial court. In that case the •Union Central Life Insurance Company had brought suit to foreclose a deed of trust executed in its favor. The right of the insurance company to prosecute the suit was challenged upon the ground that it had not qualified under the provisions of § 1826, C. & M. Digest (§ 2247, Pope’s Digest), to do a loan business in this state before entering into the contract in question. But the insurance company did offer in evidence a ‘ Certificate of Compliance, ’ ’ executed pursuant to the provisions of §§ 6059 to 6065,' inclusive, C. & M. Digest, (§§' 7779 et seq., Pope’s Digest), authorizing it to do business in this state as an insurance company, which sections required, among’ other things, that a copy of the charter and 'by-laws of the foreign insurance company be filed in the Insurance Department, and an inspection thereof disclosed that the corporation was authorized, “ under the direction of its board of directors to invest the funds of the corporation, make all loans, and do such other business as the Board may direct.” The very purpose of the certificate of compliance, there offered in evidence, was to show that the insurance company had complied with the laws of this state authorizing it to do business within the state. It was issued to evidence that fact.
It is argued that we should take judicial notice of the.fact that the defendant did not comply with the law authorizing it to do business in this state. We are cited to no case, nor to any statute, imposing this duty or conferring that' authority. In the case cited and in other cases this court has taken judicial notice of certain public records which were in existence, but we must decline to enlarge our judicial knowledge to the point of knowing whether there are records in a public office. The theory upon which judicial, notice or knowledge dispenses with proof of particular facts is based upon, the maxim, “What is known need not be proved,” but finite man cannot.be expected to know what foreign corporations have not complied with the laws of this state authorizing them to do business within the state.
Whether defendant had complied with the law authorizing it to do business in this state was a question of fact, which might have been shown by the testimony of the Secretary of State,.or a deputy having custody of his records. He might have been called as a witness or his deposition could have been taken, but he had no authority to make a mere certificate of a negative fact, the same not being a certified copy of any record in his office.
At § 980, chapter Evidence, 22 C. J., p. 838, it is said: “To prove a fact of record without the production of the record itself, a duly authenticated copy of the record or so much thereof as relates to the fact in question is required. A certificate by a public officer having the lawful custody of public records as to any fact appearing on the records of his office or as to any conclusion he may draw from an inspection of the records is not competent evidence, unless made so by statute. A fortiori the authority to make certified copies will not authorize a certification as to facts not appearing of record, or improperly inserted therein, or as to the purport of papers that are missing from the record. So, in the absence of a statute, a negative certificate by an officer will not be evidence of the non-appeai-ance of a fact on the records or of the absence of any entry, paper, or document from the records of his office, it being said that such negative proof requires oral testimony under oath of a search made and of its results.”
In the case of Driver v. Evans, 47 Ark. 297, 1 S. W. 518, the question arose whether a tract of land there in controversy had been selected by the state of Arkansas as swamp land and conveyed by the state as such. In holding that the certificate of the State Land Commissioner stating this to be a fact was incompetent and insufficient proof that it was, the court held, to quote a headnote in that case, that “The purchase of swamp land from the state can be proved only by the certificate or deed of purchase, or, in their absence, by certified transcript of the records and official documents of the proper land office. The certificate of the State Land Commissioner of what the records in his office show is not admissible.”
The case of Thomas v. Spires, 180 Ark. 671, 22 S. W. 2d 553, involved the validity of a tax sale dependent upon the question whether the school tax had been voted and certified. The opinion points- out how a negative fact may be proved, and it was done in that case by the deputy of the custodian of the records in question, who testified that he had made a. thorough examination of the records in his office, and that the result of his search disclosed that there had been no certificate showing that the school tax had been voted in the school district in which the land was situated. This testimony could, of course, have been taken by deposition, and it was held sufficient, but that officer could not have issued a mere certificate to that effect, as no statute or rule of evidence permitted him to do so.
It was held in the case of Railway Co. v. Fire Ass’n, 55 Ark. 163, 18 S. W. 43, that until the contrary appears the law will presume that a foreign corporation doing business in the state has complied with the law authorizing it to do so, and as the contrary has not been made to appear in the instant case by any competent evidence the judgment must be reversed, and the cause remanded. It is so ordered. | [
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Johnson, C. J.
The sole question presented for consideration on this appeal is the interest the wife takes in money r.eceived by her husband from the United States Government as a pension by reason of services as a soldier in the World War. On August 27,1932, appellee was awarded an absolute divorce from appellant by the Greene County Chancery Court, and in the decree the determination of property rights of the parties was expressly reserved for future adjudication. Thereafter a stipulation was filed in which the facts of the case were agreed to. It reads as follows:
“That the plaintiff and the defendant were married in Greene County, Arkansas, on December 11, 1917, and lived together as husband and wife until the 3d day of April, 1923, when the defendant deserted the plaintiff, and they never lived together thereafter; that on the 27th day of August, 1932,’in a cause wherein Prudence Stone was plaintiff, and IT. T. Stone was defendant, a decree of divorce was granted to the plaintiff on the grounds of desertion, occurring prior to the adjudication of insanity.
“That on April 24,1923, the defendant, II. T. Stone, was adjudicated insane by a court of competent jurisdiction in Greene County, Arkansas, and that he was incarcerated, and is now incarcerated, in the Government Hospital at North Little Rock, Arkansas, and that IT. R. Partlow is the duly appointed, qualified and acting guardian of H. T. Stone, incompetent.
“That H. T. Stone is the owner in fee simple, as an estate of inheritance, of the following lands in Greene County, Arkansas, to-wit: The southwest quarter of the northeast quarter and the northeast quarter of the southeast quarter of section 14, township 18 north, range 6 east, containing 80 acres, more or less.
“It is further agreed that, in addition to the lands hereinbefore described, that there has been paid to the guardian of H. T. Stone the sum of one hundred dollars per month, in the way of compensation, by reason of the said H. T. Stone being a World War veteran, and by reason of his rendering military service in the World War, and that the said H. B. Partlow, as guardian of H. T. Stone, has in his possession, and to his credit, money and other mortgage securities in the approximate amount of twelve hundred dollars, the last-named sum being exclusively derived from payment made by the United States Veterans’ Biireau.
“It is further agreed that the said Prudence Stone has drawn the statutory amount of thirty dollars per month by reason of being the wife of H. T. Stone, and by reason of living separate and apart from her husband; that said payments were paid to her up to and including the date of her divorce, which was granted on the 27th day of August, 1932; that, in addition to the thirty dollars per month payments as hereinbefore mentioned, the guardian, by order of the court, has paid her an additional sum of one hundred thirty dollars.
“It is further agreed by and between the attorneys herein that the decree of divorce hais been properly granted, the sole question being the proper division of the property.”
Thus it will be seen that no question is presented in reference to the validity or invalidity of the divorce decree between the parties. Therefore, we decide the question here presented, assuming, for the purpose of this case only, that the decree is valid, and expressly reserving the question of the validity or invalidity of the divorce decree when properly presented.
It appears from the agreed statement that, on August 27, 1932, the date of the divorce decree, that appellant’s guardian had, in cash and other personal securities, the sum of $1,200, which sums had accrued to him solely by reason of his pension from the United States Government. The trial court awarded appellee $400, or one-third of these securities, as her dower interest in appellant’s personal property. Was this error? Section 3511 of Crawford & Moses’ Digest, in part, provides: “* * * and the wife so granted a divorce against the husband shall be entitled to one-third of the husband’s personal property absolutely, and one-third of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage for her life, unless the same shall have been relinquished by her in legal form, and every such final order or judgment shall designate the specific property both real and personal, to which such wife is entitled.” * * *
If the moneys and securities in appellant’s possession are his property, and were on the date of the divorce, decree, then, under' the plain provision of the statute quoted, supra, appellee was entitled to one-third thereof upon being awarded a divorce.
Appellant’s first contention is, however, that the money received from the United States Government by him as a pension did not belong to him as his property in contemplation of § 3511 of Crawford & Moses’ Digest, because, as it is said, the United States Government has, and holds, a superintending control over all said funds. The Supreme Court of the United States has definitely decided this question adversely to appellant’s contention. In Spencer v. Smith, 288 U. S. 430, 53 S. Ct. 415, the court .said: “War risk insurance and disability compensation paid by Government to guardian of war veteran and deposited in bank was not entitled to priority upon bank’s insolvency as ‘debt due United States,’ within Revised Statute 3466 (31 USCA, § 191), because the guardian appointed by the State court was not an agent or instrumentality of the United States and payment to the guardian vested title in the ward, and operated to discharge the obligation of the United States in respect of such installments.”
Appellant next insists that, since appellee received thirty dollars per month for some years as her apportionment of her husband’s gratuity from the United States Government, this must be construed as in lieu of statutory dower. No authority is cited supporting this contention, and we cannot agree thereto. The duty and responsibility rested upon appellant to support and maintain his wife during coverture, and the mere fact that he performs this duty in no wise extinguishes her right of dower. This award by the Federal Government was for no purpose other than support and maintenance, during the disability of appellant.
The last insistence is, that the award to appellee of $400 in specific personal property by the chancery court creates the relationship of debtor and creditor between appellee and appellant, and that therefore, under § 22 of the World War Veterans’ Act (38 USCA), the same is exempted to him.
It is true, we decided in Wilson v. Sawyer, 177 Ark. 492, 6 S. W. (2d) 825, that money paid to a guardian of a World’s War veteran by the United States Government was not subject to garnishment, either in the hands of the guardian or the hands of the veteran, but this holding has no application to the facts in this case.
Under the plain terms of § 3511, Crawford & Moses’ Digest, supra, no money judgment is or should. be awarded the wife against the husband, but* on the contrary, the court determines the specific personal property owned by the husband at the time of the divorce and directs one third thereof to be delivered to the wife. This, in effect, is the mandate of the order here complained of. It does not create the relationship of creditor or debtor, but, on the contrary, is a specific partition of property owned by the parties during coverture. The interest the wife takes in her husband’s property, under § 3511, Crawford & Moses’ Digest, supra, is analogous to that of common-law dower in real estate. The wife takes common-law dower, not by virtue of any contract, but by the mandate of the law. 9 R. C. L., § 5, p. 563.
This record discloses that the trial court awarded appellee’s attorney a fee of one hundred dollars, to be paid out of appellant’s remaining interest in the funds derived from the United States Government, as a pension. This was error. The relationship of debtor and creditor does exist between appellee and appellant in so far as this attorney’s fee is concerned, and comes within the exemption as pronounced in Wilson v. Sawyer, supra.
For the reasons aforesaid, the decree of the trial court will be modified by eliminating the $100 attorney’s fee, and, as thus modified, will be affirmed.
Smith, J., dissents. | [
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Holt, J.
This action was begun in the- Phillips circuit court by appellee against the' appellant to recover the sum of $200 on an insurance policy issued by appellant on the life of Silas Leach, husband of appellee. The complaint filed on April 9, 1938, alleged the issuance of the policy, the payment of the premiums, the death of the insured, Silas Leach, due proof of death, that appel-lee was the beneficiary, and that all conditions and requirements under said policy had been fully complied with by appellee. Appellant filed an answer in which it denied every material allegation set out in the complaint and in addition defended on the further grounds that the death of Silas Leach was due to high blood pressure, which caused heart trouble, and that in the application for insurance, signed by the deceased, he stated that he did not have heart trouble and was in sound health, that this statement was untrue and that said application was a part of the insurance contract. Subsequently appellant filed an amendment to its answer in which it set up a release by appellee of all rights and claims which she might have had growing out of said policy.
The case was tried to a jury and a judgment rendered in favor of appellee in the sum of $200, and as part of the costs a 12 per cent, penalty and an attorney’s fee of $50 on behalf of appellee were assessed. A motion for a new trial was filed, and on May 19, 1938, the trial court heard and overruled this motion. To this action of the court appellant duly excepted, asked for and Avas granted an appeal to this court and a period of 160 days from May 19, 1938, was granted appellant in which to prepare and file its bill of exceptions. This bill of exceptions was not filed until October 29, 1938, which was 163 days from May 19, 1938, or three days beyond the time allowed by the trial court.
The grounds assigned by appellant for a- reversal of the judgment in this case relate to errors alleged to have been committed in the trial of the case. In order to present these errors properly to this court they must appear in the record. In order that the matters complained of may become a part of the record they must be properly preserved and presented in a bill of exceptions duly signed by the trial judge and filed with the clerk within the time allowed by the trial court. This was not done in this case. This court has many times' held, in an unbroken line of decisions, that where the bill of exceptions was not filed in time, and the evidence is not brought into the record by a bill of exceptions, this court can only consider, on appeal, errors apparent on the face of the record.
In Petroleum Producers’ Association v. First National Bank, 165 Ark. 267, 263 S. W. 965, this court said: “Where time is alloAved by the trial judge for filing a bill of exceptions beyond the term for a given number of days, the rule for computing the period allowed is the same as that of any other statute of limitations, and it excludes the day on which the order granting the time is made and includes the last day. Early & Co. v. Maxwell & Co., 103 Ark. 569, 148 S. W. 496; Peebles v. Columbian Woodmen, 111 Ark. 435, 164 S. W. 296. . . . According to numerous decisions of this court, where time is allowed for filing a bill of exceptions, the bill should not only be signed within the time, but should be filed with the clerk within the time so allowed. Pekin Stave Co. v. Watts, 95 Ark. 331, 129 S. W. 796.” See, also, Engles v. Okla. Oil & Gas Co., 163 Ark. 270, 259 S. W. 749, and L. D. Powell Co. v. Stockard, 170 Ark. 424, 279 S. W. 1001. In the absence of the bill of exceptions, the presumption is that the evidence adduced at the trial sustained the finding and judgment of the court beloAV. Williamson v. Mitchell Auto Co., 182 Ark. 296, 31 S. W. 2d 413.
It is urged by appellant that the judgment of $200 rendered in favor of appellee erroneously exceeded the face value of the policy, that in no event, under the terms of the policy, ivas appellee entitled to a cash benefit value of more than $180 or. a funeral benefit of $200. The trouble with this assignment of appellant is that the insurance contract in question was not made a part of appellee’s complaint, nor ivas any request made by appellant that the provisions of the policy be made a part' thereof. The record reflects that the policy was introduced in evidence by appellee and thereby made a part of the record, and since we hold that there is no bill of exceptions before us in this case, we, cannot consider the provisions of this policy relative to what amount of cash benefit appellee would be entitled. That clearly was a matter of proof. The provisions of the policy do not appear on the face of the record.
We conclude, therefore, that since the bill of exceptions in this case was not filed in apt time, and since no' errors of law appear on the face of the record, the judgment must be affirmed, and it is so ordered. | [
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Smith, J.
This appeal lias been prosecuted to reverse a judgment recovered by appellee upon the following testimony. Appellee and other employees of appellant, a corporation, were engaged in setting up a boiler. In raising the boiler from the ground they were furnished a block of wood about 10 by 12 inches and 2 feet long, which block of wood was used as a fulcrum, upon which there was placed a joint of 4-ineh pipe about 20 feet long and weighing about 200 pounds. The earth was sandy where the block was placed, and it was pressed to some extent into the earth. After the pipe, which was referred to by the witnesses as a pry or “mope” pole, had been placed on the block, and one end of the pipe under the boiler, fellow employees of appellee placed their weight at the other end of the pipe and pulled down to lift the boiler. It was the duty of Bill Williams, another employee, to place the block of wood securely under the pry pole to keep it from slipping. There was testimony to the effect that Williams negligently failed to perform this duty by releasing the block and permitting it to slip, thus throwing the pole and the weight which it supported upon appellee’s foot, thereby inflicting a painful, serious and permanent injury.
Under the facts stated, a case was made for submission to the jury, and, as the instructions given have not been set out, it will be conclusively presumed that the issues of fact were submitted under correct declarations of law.
In its answer, the defendant pleaded a contract with the plaintiff, whereby he agreed that, if he should ever receive an injury while employed by defendant, he would accept in full settlement of any claim for damages the amount provided for a similar injury under the Workmen’s Compensation Law of the State of Louisiana. The court refused to permit the introduction of this contract in evidence, and that ruling is assigned as error. Of this contract, counsel for appellant say: ‘ ‘ The question of the validity of this contract in the courts of Arkansas has been submitted for decision in this court in the case of Standard Pipe Line Company, Inc., v. W. M. Burnett, No. 3245, which case, at the time of the writing of this brief, has not yet been decided.' We respectfully refer the court to the argument and authorities cited in the brief of the Standard Pipe Line Company, Inc., in the Burnett case.”
The brief referred to was prepared by counsel here appearing, and, since that brief was -written, the 'Burnett case to which reference was made has been decided, and it was held that the contract was not enforceable in the courts of this State. For the reasons inducing that hold ing, reference is made to the opinion delivered December 18, 1933, in the case of Standard Pipe Line Co. v. Burnett, ante p. 491.
There is a conflict as to the extent of appellee’s,injury, but, according to the testimony on his behalf, the injury is as great or even greater than the complete loss of the foot would have been. The defendant’s doctor who treated appellee admitted that: “He has a tenderness there, and always will. He has a broken arch, and any time he steps it will stretch the ligaments and give him pain.” The testimony on appellee’s behalf is to the effect that he is unable to stand on the injured foot for any considerable time, and he is therefore unable, to perform any manual labor, the performance of which requires him to do so. Indeed, we do not understand that it is seriously contended that the verdict is excessive. The insistence is that there is no liability for the injury, and that a full and final settlement of the cause of action was made, which was evidenced by a written contract.
This release appears to have been executed upon a form prepared for that purpose. It was prepared in the defendant’s office in Shreveport, and sent by one of its representatives to Smackover, where it was signed by appellee. This release, after reciting the time, place and nature of appellee’s injury, contains the following statement:
• “The full intent and meaning of this receipt is that I hereby acknowledge to have received from the Standard Oil Company of Louisiana full settlement and compensation for any and all claims for damages which I have or may have against the Standard Oil Company of Louisiana, under the laws of the State of Arkansas, resulting from, or that may result from, said above-described accident, aiíd I further declare and acknowledge that the settlement which I have' this day made with the said Standard Oil Company of Louisiana for injuries resulting or that may result from said accident, is a compromise and adjustment of any claim for damages which I have or may have, and that the amount received by me is full and just compensation for the injuries suffered.
“This settlement is accepted and receipt executed by me solely on my own judgment, and I am not acting on any statement made to me by the Standard Oil Company of Louisiana, its officers, agents or employees, or on any statement or representation of any physician or surgeon employed by the said Standard Oil Company of Louisiana. ’ ’
Appellee had been paid $211.43 by defendant, and this payment was credited by the jury on the verdict for $3,000 which was returned in appellee’s favor. Appellee testified that he had been discharged by the defendant’s surgeon, who assured him that his foot would be entirely well in the course of a week or so, and that he was induced by this representation to accept the sum paid him in settlement of his cause of action.
It is earnestly insisted that the admission of this testimony was erroneous, as it permits a valid written instrument to be contradicted by parol testimony. This question was thoroughly considered in the case of St. Louis, Iron Mountain & So. Ry. Co. v. Hambright, 87 Ark. 614, 113 S. W. 803, and a decision was rendered which is adverse to this contention. In that case a release was executed in which it was recited that, in the judgment of the injured party, his injuries were of a permanent character, and written thereon in his own handwriting was the statement: “I understand this release.” The execution of the release was admitted by the injured party, who testified that he had been assured by the defendant company’s surgeon who had treated him that his injuries were not serious, and that he would soon be able to resume his usual employment, whereas his injuries were serious, and he had not been able to return to work, as the doctor had assured him he would be.
In holding that this testimony was competent, notwithstanding the recitals of the release to the contrary, it was said: “The rule of evidence forbidding the addition, alteration or contradiction of a written instrument by parol testimony of antecedent and contemporaneous negotiations does not apply where there is an issue of fraud in the procurement of the writing. ’ ’
The authorities were again reviewed in the case of F. Kiech Mfg. Co. v. James, 164 Ark. 137, 261 S. W. 24. The release in that case recited that the injured party “was acting wholly upon his own judgment as, to the nature and extent of his injury, and that no representations had been made in regard thereto upon which he relied.” The injured party was permitted, however, to testify that such representations had been made to him, upon which he had relied and had acted in executing the release. It was there held, in effect, that, where a release was procured upon representations which proved to be false made to the servant by the attending physician, who was employed by the master and who attended the servant, that the injuries were slight and temporary, if relied and acted upon, constituted fraud in the procurement of the release and justified its avoidance, and parol testimony was admissible to contradict its recitals.
This holding has been consistently adhered to by this court, and was reaffirmed in the case of Ozan-Graysonia Lbr. Co. v. Ward, ante p. 557.
The release here in question was prepared before appellee saw it, and, when presented to him, required only his signature, which he affixed to the writing, relying, as he did, upon the assurance of the defendant’s doctor, who had treated him, that he would soon be well and able to return to work. It may be said that the company’s doctor testified in this case with a frankness quite unusual. He. admitted telling appellee that his injury was slight, and that he would soon be well, and he admitted with equal frankness that he was mistaken in this opinion.
No error was committed in the admission of this testimony, as it tended to show fraud in the procurement of the execution of the release, although no fraud was intended, the effect of the mistaken opinion of the doctor being to accomplish what would be a fraud if the result induced by this opinion was conclusive and not open to inquiry.
There appears to be no error, and the judgment must be affirmed. It is so ordered. | [
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Baker, J.
The appellant states the issues on appeal as follows: “The court based its decree upon the law of estoppel, that the evidence was such , as precluded the plaintiff from asserting his rights tO‘ said real estate and that through silence of the Hitt heirs, the defendants, as Trustees, had acquired title to such lands.”
To this the appellees add: “That the learned Chancellor rendered his decree not upon the theory of estoppel by silence, but by words, acts, acquiescence and silence. ’ ’
We sháll attempt to state such facts as we think are necessary to settle the sole issue of estoppel which is conclusive of all the rights involved.
The appellants filed a suit praying for a temporary restraining order to stop the construction of a church building on an acre and a quarter of land which is particularly described in the complaint, but it is sufficient in this case to say it is a tract of land located within the southwest quarter of the northwest quarter and the northeast quarter of the northwest quarter of section 17, township 17 north, range 31 west. This small bit of land had been deeded to Neil Sawrey and others as trustees of the Assembly of the Church of God. It was alleged, and we think sufficiently established, if not admitted, that the title to the property had been in John Hitt, who died and left surviving him Alice Hitt, his widow, and four children, as the sole heirs-at-law. The children were adults, none of them residing upon or really close to the-property. It had been left for sometime in the sole or exclusive possession of the widow, Alice Hitt, who executed the deed of conveyance to the property in controversy. After the deed was executed, but -before the land was purchased by John Rone, and while Alice Hitt was still living, a church building was begun on the acre and a quarter of land. Those who were interested met and leveled off a place for the construction of the building. Thereafter, a concrete foundation was put down, then the frame-work of the building was commenced. During the time of the construction of this part of the building, prior to the death of Alice Hitt, it is alleged that all the ■children or heirs-at-law of John Hitt and Alice Hitt knew that these improvements' of a substantial nature were being constructed upon the land and none of them at any time, so far as the evidence discloses, made any objection thereto., but at least one of the heirs, Otis Hitt, joined with laborers and friends in doing a part of this work of construction. It is not understood from this .evidence, however, that he was employed, but, like others who worked upon the building, was a volunteer laborer rendering his services in an effort to construct the building for the use of the church organization. We think it may be said to be within the understanding of all the parties that this acre and a quarter of land was a part of the homestead of John Hitt, deceased, although the evidence discloses that the tract of land owned by John Hitt consisted of 180 acres. Of course, it is well known that the homestead could not have contained more than 160 acres, but we assume, as have all counsel in this litigation, that the land in controversy was a part of the actual homestead of John Hitt. The conclusion, therefore, necessarily ‘arises that Mrs. Hitt’s conveyance was not effectual as such, as it amounted only to an abandonment of that portion of the homestead which she attempted to convey. Since she attempted to convey only the acre and a quarter of ground described that must be the portion which she abandoned and it is the same portion or parcel of land which the parties to this controversy, by their counsel, have agreed, in the foregoing statements from their briefs, the title to which must be determined under the doctrine of estoppel.
In addition to the foregoing facts, that the conveyance had been made, that the heirs-at-law had knowledge thereof, that they had permitted and to some extent assisted in making substantial improvements thereon for the benefit-of the church organization, the proof discloses the further fact that the appellant after the death of Mrs. Alice Hitt, decided to purchase the entire Hitt tract of land from the heirs; that he made an investigation or inspection of the land prior to his purchase and that at that time he found the church building under construction. In fact, he was upon the ground while the construction work was being performed. He entered into a contract to buy the land, but refused to accept a deed to it unless the acre and a quarter of land was incorporated in the conveyance and made a part thereof. He advised the two Hitt brothers that if they expected to sell and convey to him this land they must stop the construction work. Although they had agreed up until that time that their mother’s conveyance should be ratified and confirmed by them, they then went to those who were working upon the house and had them cease their labors until they could sell the land. Neil Sawrey, one of the ap-pellees here, and one of the trustees to whom the land had been conveyed, immediately after this interruption of the work went to the home of John Eone in Oklahoma and attempted to purchase the land from him for his church organization, but Eone refused to sell, but according to his own testimony offered to give or donate the land for church purposes to the community if all denominations alike were to be treated as the beneficiaries'of the grant. There was no settlement or agreement, but later the work was resumed upon the church building. Then this suit was instituted to procure a temporary restraining order. This fact that Sawrey, as a representative of the church organization, attempted to buy the property from John Eone is argued as an additional reason or ground that the appellees should not prevail in this litigation. Without attempting to minimize the justice of this argument, we think it may be answered by saying that perhaps at this time Sawrey and his co-trustees had all been advised that the deed executed by. Mrs. Hitt was not effectual as a conveyance and it is now admitted and conceded by ap-pellees that her conveyance of the acre'and a quarter of land was a nullity.
We think it might well have been argued, though it has not been suggested, that Sawrey and his co-trustees were seeking some form of settlement or compromise, trying to find a peaceful solution of a controversy, the outcome of which at that time, at least, was very doubtful. When the proceedings had progressed to this extent, a concrete foundation for the church had been built, about 24 ft. by 52 ft.; oak frame-work and some siding had been put up. The roof had been constructed and this had all been done at the expense of the community in the erection of their church building, with a knowledge, at least, of all the heirs, with their acquiescence, with the actual aid of some of them, with the assurance from those who talked about it that they wanted to do what their mother had attempted to do, aid in the construction of the church building. This work, no doubt, had cost the community a substantial sum of money. We do not know how much as that fact is not disclosed with any degree of certainty. In addition to the money, the labor donated was of considerable value. The proof discloses further that this building was of such form of construction and proportions that it could not be moved to another site without completely wrecking and destroying it as a building and much of the material be lost. When Mr. Rone saw this building in that condition, we must and do assume that he knew something of the expense and labor expended for the improvements. Prior to the time he bought, he made no effort to determine, by consultation, from those who were interested whether his purchase would be respected, but advised the Hitt heirs that they must stop construction before he would buy. We do not assume that he was attempting to proceed at the expense of the church community. There is no evidence that would justify such an assumption. In fact there is no evidence that, if he did not obtain possession of the acre and a quarter of land, he would suffer any seri ous damage or actual loss. It is a very small proportion of tlie larger tract. The value is not a very material issue if he had the right of possession. Rone, however, has not insisted on possession of the property, except as an incident authorizing him as the donee of the property to direct and control the manner of its use from and after the date of his purchase of the property by the conditions of his donation.
However liberal or generous his conduct may seem, we think its true value must be measured by what had transpired prior to the date of his purchase and the exact conditions that existed at that time. The mere fact that appellant Rone would not profit by this course of conduct is not conclusive of the rights of the appellees. Considered from that standpoint the first question that arises is would the appellees suffer an actual loss by reason of having relied, in error, upon the deed of conveyance, and also upon the conduct of the heirs of John Hitt, those who were in the actual possession and control of the adjacent property and who held the legal title thereto at the time of the conveyance to Rone.
The other proposition argued, that Rone was willing that the property should be used for church purposes, but insisted that it should be for the 'benefit and use of all denominations alike, is open to an equally serious objection, and that is that Rone, in the exercise of his. generosity in releasing claims to the land did not have a right to take from the church organization its labor and property, represented in the building and bestow the same upon others.
The foregoing constitutes our analysis of the facts which we think are supported by all the evidence, and, at least, it is a proper construction to put upon their conduct.
In support of this proposition we should, perhaps, add that the four Hitt heirs, who are referred to as the two boys and the two girls, were in Arkansas and in the home community and knew what was going on while the structure was being erected sometime prior to their sale. None of them made any objection. None of them claimed adversely to the church organization. Otis Hitt on every occasion lias reaffirmed what Ms mother did, assisted in the construction of the building. Ernest Hitt changed his mind in order that he might help sell the property, hut prior to that time he too had 'been in accord with the attempted grant of the property.
The law in this case, we think, has been concisely stated by that eminent authority Pomeroy, Equity Jurisprudence, 4th ed., Yol. 2, § 808, p. 1658, as follows: “The conduct creating the estoppel must be something which amounts either to a representation or a concealment of the existence of facts; and these facts must be material to the rights or interests of the party affected by the representation or concealment, and who claims the benefit of the estoppel. The conduct may consist of external acts, of language written or spoken, or of silence. ’ ’
•See, also, the same authority, § 818, p. 1680: “Acquiescence consisting of mere silence may also operate as a true estoppel in equity to preclude a party from asserting legal title and rights of property, real or personal, or rights of contract. The requisites of siich estoppel have been described. A fradulent intention to deceive or mislead is not essential. All instances of this class, in equity, rest upon the principle: If one maintain silence when in conscience he ought to speak, equity will debar him from speaking when in conscience he ought to remain silent.”
Stated in another form we have this expression of the law: “Where a person stands by and sees another about to commit or in the course of committing an act infringing upon his rights'and fails to assert his title or right, he will be estopped afterward to assert it.” 21 C. J. 1152, § 155b.
So it must be concluded from the foregoing that it is not actually necessary that John Rone, the appellant, should have taken some inconsistent position in order that he should be estopped in this case, but from the foregoing we hold that if his predecessors in title, the Hitt heirs, are estopped then they could not and did not convey to Rone who knew the facts an indefeasible title. It has been held by this court that the vendee of one who is ■estopped from granting title is also estopped. Allen v. Daniel, 94 Ark. 141, 126 S. W. 384; Brownfield v. Bookout, 147 Ark. 555, 228 S. W. 51.
It was announced in the last cited case that one who maintains silence when in conscience he ought to speak, equity will debar him from speaking when in conscience he ought to remain silent.
It is hut a repetition of what we have just quoted from Pomeroy.
Numerous authorities covering each phase of this case are sprinkled through our reports as a substantial part of the law of property in this state. First National Bank v. Godbey & Sons, 181 Ark. 1004, 29 S. W. 2d 272; State ex rel. Independence County v. Citizens Bank and Trust Co., 119 Ark. 617, 178 S. W. 929; Rogers v. Galloway Female College, 64 Ark. 627, 44 S. W. 454; Illinois Standard Mortg. Corp. v. Collins, 187 Ark. 902, 63 S. W. 2d 342; Fagan v. Stuttgart Normal Institute, 91 Ark. 141, 120 S. W. 404; Ferguson v. Guydon, 148 Ark. 295, 230 S. W. 260; Lacey v. Humphres, 196 Ark. 72, 116 S. W. 2d 345.
Many other authorities might be cited materially and substantially to the same effect as the foregoing, but this would perhaps add nothing to our opinion as the authorities cited are sufficient to indicate the established principles.
It might be well to add that we have recently had under consideration, a contract for the sale of timber from a tract of land which constituted a homestead of the seller of this 'timber. His wife did not join in the timber deed. The husband collected the purchase money for the timber, aided in the cutting and removal of it, bought groceries and supplies and delivered them to his wife, with the money received and she knew the supplies had been so procured by the use of the purchase money of the timber, and she received from him benefits on account of the sale of the timber. She remained silent at all times until the timber had been cut and removed- and then .joined her husband in a suit asserting the invalidity of the conveyance and prayed for a second recovery which was not permitted. Edwards v. Jones, ante p. 229, 123 S. W. 2d 286.
From the foregoing it follows that the Chancellor’s holding was correct.
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Mehapey, J.
On December 23, 1919, the appellant issued to appellee its policy insuring appellee’s life in the sum of $2,500 and providing annual disability benefits equal to one-tenth of the face amount of the policy, together with waiver of premiums during disability. On November 12, 1929, the appellant issued another policy to appellee for the sum of $3,200 providing for disability benefits of $32 a month with increases after five and ten years of disability, and also providing for a waiver of premiums during disability. On August 22, 1930, the appellant issued another policy to appellee for $1,000 providing for disability benefits of $10 a month and providing for a waiver of premium during disability.
The appellee testified that he is a Baptist preacher, 53 years old, and has been continuously engaged in preaching since September, 1911, and had no other business or calling; about the last of January, 1931, he had influenza and pneumonia and remained in bed until February 22d; on April 8, 1931, he had a heart attack and was confined to his bed until he went to the Baptist Hospital in Memphis on April 29th and remained there until May 12th, and then stayed at his sister’s house in Memphis until July, being confined to his bed until that time; he was then taken back to Clarendon; he spent almost two years continuously in bed and was unable to attend to any ■duties as a minister; in May, 1931, he made application to fhe appellant for disability benefits; the appellant sent doctors from Memphis who examined him and his benefits were thereafter paid and premiums waived until December, 1939; he was notified in January, 1940, that no further payments would be made.
The policies were introduced in evidence, and a letter from the appellant notifying him that no further disabilities would be allowed.
Appellee further testified that after he received this letter he paid the premiums on the policy; he has been -unable to engage in any business or profession for profit since 1931; lie has a shortness of breath under the slightest exertion, and if tired, a choking feeling, and at times a striking pain in the right side of his head; since he became disabled, in the last five years he has performed three1 marriage ceremonies, but even that simple task fatigues him, and he must get an extra amount of breath before he can continue to read the ceremony; he is unable to do any manual labor; his income at Clarendon as pastor was $100 a month and a home; he has received $59 a month from the appellant and $41.66 from the Annuity Board of the Southern Baptist Conference, making a total of $99.66 a month; he has milked a cow occasionally.
The copy of the first proof of disability was introduced, prepared by Dr. McElroy, and it states that plaintiff has attacks of dyspnea, substernal pain and fluttering of the heart. It was also stated that the disability was said to have followed an attack of pneumonia in 1931. Diagnosis and symptoms of the disease are stated to be coronary arterio-sclerosis and chronic myocarditis, and the doctor stated that in his opinion the insured was wholly' disabled, but that he might recover. He later had an attack of appendicitis and went to the doctor for an operation, but the. doctor did not operate because of the condition of his heart; he does not attribute his disability to appendicitis.
Appellee further testified that he owns a farm of about 80 acres near Earle, -and rents it for cash; the tenant comes to appellee’s house and pays cash rent or executes a mortgage; it does not require much effort on appellee’s part; it takes about five minutes to perform a marriage ceremony and this tires him out; the fair rental value of the home he was furnished in Clarendon is $25 a month; his salary there was the smallest he had received in fifteen years; $200 a month would be about the average salary; had to be examined and found to be disabled before receiving- the annuity from the Southern Baptist Board; he is still receiving this annuity; as a matter of choice, he would rather work than receive aid from the church and insurance company; he has had no- training and experience in any line of work other than preaching.
Dr. Leroy testified that he had examined the appellee and found no leak or valve damage or other organic injuries, but did find a high degree of heart incapacity; that’ the heart was not able to withstand ordinary strain; small actions tend to make it accelerate a little out of proportion, and small efforts tend to make him short of breath and uncomfortable. The condition found by Dr. Leroy was one of extreme or well developed and long continued damage to heart muscle itself, what they call myocarditis; he said there was no lesion or tear or cut, but the substance of the muscle itself had been damaged to such an extent that it cannot perform much of any function; the damage they found in this case is damage to the heart muscle itself; the strain of years of illness and extreme toxin poisoning weakening have left those muscles in not a normal degree of resistance or strength; it is degeneration of the heart itself. The doctor stated as a rule in most instances of heart weakening following influenza or pneumonia, some cases recover pretty well in a few months; if they have not recovered pretty well within that time, then that group of cases generally last a long time, sometimes indefinitely; if appellee’s heart has gone on for nine years without improvement, but is stationary or getting worse, he would not expect it to regain any strength; it would have done the repair work long before nine years; sometimes no examination will reveal defective muscle except a microscopic piece taken out of the heart at post mortem.
There was a verdict and judgment in favor of appel-lee for $567.68. The case is here on appeal. There was other testimony, but the above is sufficient to show that there was substantial evidence to support the verdict.
The appellant states that its sole contention in this ease is that the trial court erred in refusing to direct a verdict in its favor.
The well settled rule is that in testing the sufficiency of evidence to support the verdict of the jury, this court must view the evidence with every reasonable inference arising therefrom in the light most favorable to the appellee, and this court is bound by the most favorable conclusion that may be arrived at in support of the verdict rendered by the jury, and can only determine whether or not there was any substantial evidence to support the verdict. Mo. Pac. Trans. Co. v. Jones, 197-Ark. 79, 122 S. W. 2d 613; Mutual Benefit Health & Accident Ass’n v. Basham, 191 Ark. 679, 87 S. W. 2d 583; St. L.-S. F. Ry. Co. v. Hall, 182 Ark. 476, 32 S. W. 2d 440; Union Security Co. v. Taylor, 185 Ark. 737, 48 S. W. 2d 1100; Ark. Banking Co. v. Wyman, 185 Ark. 310, 47 S. W. 2d 45; Pekin Wood Products Co. v. Mason, 185 Ark. 166, 46 S. W. 2d 798; Ft. Smith Traction Co. v. Oliver, 185 Ark, 227, 46 S. W. 2d 647; S. W. Gas & Elec. Co. v. May, 190 Ark. 279, 78 S. W. 2d 387; S. W. Bell Tel. Co. v. Balesh, 189 Ark. 1085, 76 S. W. 2d 291; Arkadelphia Sand & Gravel Co. v. Knight, 190 Ark. 386, 79 S. W. 2d 71; Roach v. Haynes, 189 Ark. 399, 72 S. W. 2d 532; Sovereign Camp, W. O. W., v. Cole, 192 Ark. 326, 91 S. W. 2d 250; Reed v. Baldwin, et al., Trustees, Mo. Pac. Rd. Co., 192 Ark. 491, 92 S. W. 2d 392; Mo. Pac. Rd. Co., et al., v. Westerfield, 192 Ark. 558, 92 S. W. 2d 862; Safeway Stores, Inc., v. Mosely, 192 Ark. 1059, 95 S. W. 2d 1136; D. F. Jones Const. Co., Inc., v. Lewis, 193 Ark. 130, 98 S. W. 2d 874; Doda v. Raines, 193 Ark. 513, 100 S. W. 2d 973.
The late Justice Butler, speaking for the court, said: “The verdict must rest on the uncorroborated testimony of the appellee. The question as to where lies the preponderance of the evidence is not for us to say. That is the duty of the trial judge, who, by his refusal to set aside the verdict, has set his seal of approval upon the truthfulness of the testimony given by the appellee. This conclusion, under settled principles of law, we are forced to adopt. We, therefore, treat the testimony of appellee as true and view it in the light most favorable to him, and if it appears from that testimony that there is substantial evidence to support the verdict, we, too, must approve it. ’ ’ Norton & Wheeler Stave Co. v. Wright, 194 Ark. 115, 106 S. W. 2d 178.
The rule as to what constitutes total disability is well settled in this state, and in the case of the Missouri State Life Ins. Co. v. Snow, 185 Ark. 335, 47 S. W. 2d 600, the rule was stated as follows: “ ‘Total disability does not mean absolute physical disability on the part of the insured to transact any kind of business pertaining to his occupation. Total disability exists, although the insured is able to perform occasional acts, if he is unable to do any substantial portion of the work connected with his occupation. It is sufficient to prove that the injury wholly disabled him from the doing of all the substantial and material acts necessary to be done in the prosecution of his 'business, or that his injuries were of such a character and degree that common care and prudence required him to desist from his labor so long as was reasonably necessary to effect a speedy cure.’ ”
The court also in that case said: “Of course, such a provision in a policy does not require that the insured shall be absolutely helpless or insane, but there must be such disability as renders him unable to perform all the substantial and material acts in the prosecution of a gainful occupation.”
Under the rule adopted by this court as to the meaning of the disability clause in a policy, there was substantial evidence to justify the jury in finding that appel-lee was totally and permanently disabled.
The judgment is affirmed. | [
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ROBIN F. WYNNE, Associate Justice
The State of Arkansas has filed this interlocutory appeal from the Poinsett County Circuit Court’s order granting ap-pellee Stoney McWilliams’s motion to suppress. On appeal, the State argues that (1) the circuit court erred as a matter of law by interpreting Rule 2.2 of the Arkansas Rules of Criminal Procedure to invalidate the encounter between McWilliams and the arresting officer and (2) the circuit court erred in concluding that the officer’s actions constituted a seizure. Becausé this is not a proper State appeal under Ark. R. App. P.—Crim. 3 (2016), we dismiss the appeal.
The pertinent facts are as follows. On the afternoon of December 19, 2015, Stoney McWilliams and his girlfriend were walking along the shoulder next to Highway 63B in Marked Tree. They were carrying bags filled with groceries. Police officer Kevin Holt testified that when he drove past. McWilliams, “[McWilliams] kind of shielded his face from me and it kind of arose my suspicion. I thought maybe, possibly,. he had a warrant or something and didn’t want me to see his face.” Officer Holt turned his patrol car around, pulled up behind McWilliams with his rear lights flashing, and got out of the vehicle. He instructed McWilliams to stop, and McWilliams complied. Officer Holt asked McWilliams his name, McWilliams answered, and .Officer Holt then asked for identification. At that point, McWilliams ran.
After considering Officer Holt’s testimony at a hearing on McWilliams’s motion to suppress, the circuit court granted the motion as follows:
1. After the State rested, the Defendant’s [attorney] orally moved for a Motion for Directed Verdict. The court finds that the State has not met its burden with respect to the Defendant’s Motion to Suppress.
2. The Court finds that Ark. Rule of Cr. Proc. 2.2 is not applicable because the Market Tree Police officer was not investigating a criminal offense or criminal activity known to him to exist.
3. The Court finds that the Marked Tree Police officer did not have reasonable suspicion to stop the Defendant.
4. The Court finds that under Ark. Rule of Cr. Proc. [3.1][ ] that justification for investigatory stops must be based on specific, particular and articulable reasons and must be something more than conjectural suspicion. The Marked Tree Police officer believed that when the Defendant looked away, he was trying to hide his identity because he might have a warrant. The Court finds that the officer’s belief is conjectural in nature.
5. All of the issues in Ark. Code Ann. § 16-81-203, with the exception of the Defendant possibly averting his face, did not come into play here. The one issue about the demeanor of the suspect would just merely be by the gesture of him possibly looking away.
6. Considering the totality of the circumstances, the Court finds that there was no reasonable suspicion.
7. The Court finds that the act of turning across traffic to come up behind individuals in a police unit, with lights activated from the rear, getting out of his car and ordering the Defendant to stop constitutes a seizure.
8. The Defendant’s seizure and invasion of privacy issues are considered by the Court to be a substantial right under the Constitution.
9. The Defendant’s Motion to Suppress is hereby granted. Therefore, all evidence obtained after the stop including, but not limited to, observations by the police, all physical evidence, statements of the Defendant subsequent to the stop and all Jab analysis, are hereby suppressed.
The State has filed this appeal.
As this court recently recognized in Lewis v. State, 2017 Ark. 211, 521 S.W.3d 466, police-citizen encounters have been classified into three categories. As for the first category, the authority for a police officer to act in a nonseizure encounter is recognized in Rule 2.2(a) of the Arkansas Rules of Criminal Procedure (2016), which provides,
A law enforcement officer may request any person to furnish information or otherwise cooperate in the investigation or prevention of crime. The officer may request the person to respond to questions, to appear at a police station, or to comply with any other reasonable request.
In Lewis, supra, this court explained,
This type of nonseizure encounter occurs when an officer merely approaches an individual on a street and asks if he is willing to answer some questions. This encounter is consensual and does not constitute a seizure. A seizure of a person occurs when an officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. The initially consensual encounter is transformed into a seizure when, considering all the circumstances, a reasonable person would believe that he is not free to leave. The second category is contemplated by Rule 3.1 of the Arkansas Rules of Criminal Procedure. This second type of encounter occurs when the officer justifiably restrains an individual for a short period of time because the officer has a reasonable, articulable suspicion that the person has committed or is about to commit a crime. The final category is the full-scale arrest, which must be based on probable cause.
2017 Ark. 211, at 6, 521 S.W.3d 466, 471-72 (citations omitted). Recognizing these categories of police-citizen encounters, the State contends that the circuit court erred in granting McWilliams’s motion to suppress and presents the following arguments. on appeal: (1) the circuit court erred as a matter of law by interpreting Rule 2.2 to invalidate the encounter here; and (2) the circuit court erred in concluding that Officer Holt’s actions constituted a seizure.
Before addressing the merits, this court must first determine whether this case is properly before us under Rule 3 of the Arkansas Rules of Appellate Procedure—Criminal. Pursuant to Rule 3, an interlocutory appeal on behalf of the State may be taken from a pretrial order in a felony prosecution that grants a' motion under Ark. R. Crim. P. 16.2 to suppress seized evidence. Ark. R. App. P.—Crim. 3(a)(1). However, this court will not consider such an appeal unless the correct and uniform administration of the criminal law requires review by the court. Ark. R. App. P.—Crim. 3(d). As this court has consistently observed, there is a significant and inherent difference between appeals brought by criminal defendants and those brought on behalf of the State. State v. Brewster, 2011 Ark. 530, at 3, 385 S.W.3d 844, 846. The former is a matter of right, whereas the latter is not derived from the constitution, nor is it a matter of right, but is granted pursuant to Rule 3. Id. Furthermore, this court has stated:
As a matter of practice, our court has only taken appeals which are narrow in scope and involve the interpretation of law. When an appeal does not present an issue of interpretation of the criminal rules with widespread ramifications, this court has held that such an appeal does not involve the correct and uniform administration of the law. Appeals are not allowed merely to demonstrate the fact that the trial court erred. Therefore, where the resolution of the State’s attempted appeal turns on the facts of the case and would not require interpretation of our criminal rules with widespread ramifications, acceptance of the State’s appeal is not allowed under Rule 3. An appeal that raises the issue of application, not interpretation, of a statutory provision does not involve the correct and uniform administration of justice or the criminal law.
State v. Weatherspoon, 2009 Ark. 459, at 3, 2009 WL 3162295 (internal citations omitted).
Here, the State contends that this court should accept this appeal to correct the circuit court’s erroneous interpretation of Rule 2.2, arguing that “Rule 2.2 is broader than the circuit court’s erroneous interpretation as it allows officers to approach citizens when they believe that such encounters will aid in the investigation or prevention of known or as yet unknown crime.” However, this case does not turn on an issue of interpretation of Rule 2.2. The circuit court found that McWilliams had been seized for Fourth Amendment purposes and that the officer lacked reasonable suspicion to conduct an investigatory stop under Rule 3.1. Importantly, the standard for review of a suppression challenge is that we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the circuit court. Davis v. State, 351 Ark. 406, 413, 94 S.W.3d 892, 896 (2003). This is a case involving the trial court’s consideration of the particular facts of the case and its determination that those facts did not provide reasonable suspicion for an investigatory stop under Rule 3.1. Accordingly, we dismiss the appeal as improper under Arkansas Rule of Appellate Procedure— Crira. 3.
Appeal dismissed.
. At the suppression hearing, the parties agreed that there was no reason to elicit facts beyond the point at which McWilliams ran. The record shows that McWilliams was charged with (1) aggravated assault upon a certified law enforcement officer, (2) possession of a controlled substance (methamphetamine), (3) furnishing prohibited articles, (4) escape, (5) carrying a, weapon, (6) criminal mischief, (7) possession of a controlled substance (marijuana), (8) resisting arrest, and (9) two counts of fleeing on foot.
. The order mistakenly refers to 2.1, which contains the definition of "reasonable suspi cion,” rather than Rule 3.1, which governs investigatory stops.
. The State offers argument as to why it believes that there was no seizure here, but a ruling on that issue would not involve the correct and uniform administration of the law. | [
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Gtriefin Smith, C. J.
Ben M. Hogan’s written proposal of January 4,1937, to supply all materials and perform all labor necessary in providing a waterworks system for $32,417.25 was accepted by the incorporated town of Mammoth Spring, the work to be done according* to drawing’s and specifications referred to in the contract.
A part of the plant was to be a well 300 feet in depth, with certain appurtenances. Dennis D. Doty agreed with Hogan to drill the well and supply certain items for $4,332. Fairbanks-Morse & Company (October 5, 1938) sued Hogan for $1,265.54, alleging Doty was Hogan’s subcontractor, and that it had supplied Doty with certain materials, and with money for use in completion of Hogan’s contract. Construction of the waterworks plant was a P.W.A. project. The engineer’s final approval of work done and materials supplied by Doty showed he was entitled to $3,842.
February 21, 1938, Doty admitted that his indebtedness to Fairbanks-Morse & Company was $3,491.01 and executed an assignment in which it was stated that he was entitled to receive approximately $2,250 from Hogan on the Mammoth Spring job, and that payment should be made to the assignee.
Doty testified he was paid $2,131.04 about March 18, 1937, and that a balance of $2,419 was due. He further testified that about three weeks after the Mammoth Spring job was completed he did some work for J. A. Gregory at Newark for which he was to receive $3,000. An advance of $2,100 was made. The item of $2,100 was not repaid because Gregory did not settle in full under the $3,000 contract. His testimony was that “it was understood” the $2,100 was a “loan” to be repaid from money arising from the $3,000 obligation; therefore, the balance due was $900.
On appeal appellant waived all claims except $758.79.
J. A. Gregory testified that the check for $2,100 was issued June 21, 1937, to apply on the Mammoth Spring contract. This represented an overpayment of $359.04. However, Doty had a balance coming to him on the Newark job, and witness was not concerned over the difference. The letter confirming agreement on the Newark job was signed “'Ben M. Hogan, by J. A. Gregory.”
Gregory testified that he met Galvin two or three days before the $2,100 payment was made to Doty. Gregory says he told Galvin that Doty was asking for payment before it was due under the terms of the contract:— “Galvin made the statement that if I could see my way clear to help Doty, he wished I would; that Doty was a good man.” Continuing his testimony, Gregory stated that he went away and that Doty telephoned again, asking for an advance.
Galvin’s testimony was to the effect that as representative of Fairbanks-Morse & Company he attended contract “lettings,” and on numerous occasions had asked the successful bidder to employ Doty because Doty bought equipment from Fairbanks-Morse.
There is other testimony relating to conversations •between Gregory and Galvin.
In Kochtitsky v. Magnolia Petroleum Co., 161 Ark. 275, 257 S. W. 48, it was held that the principal contractor is liable for labor and materials supplied to a sub contractor -within the general scope of the principal contract.
The trial court in the instant case found that appellant was estopped by the action of Galvin, who suggested that payment he made to Doty. It is argued by appellant, however, that estoppel was not pleaded. The answer alleged that the work done by Doty and materials supplied constituted a joint enterprise between Fairbanks-Morse & Company and Doty, and that appellant had made Doty its agent to receive payments. When appel-lee introduced evidence which tended to create an estop-pel there was no objection, and it cannot be complained of now. Where the plaintiff acquiesced in the method of examining witnesses and did not contend trend of the testimony thus adduced was outside the scope of the pleadings, the answer will be treated as having been amended to conform.
We think there is substantial evidence to sustain the contention that Galvin* asked Gregory to advance $2,100 to Doty, and that Galvin relied upon Doty for payment. We are also of the opinion that Gregory’s contention that the payment related to the Mammoth Spring job, and not to the Newark undertaking, is amply supported.
Affirmed.
J. A. Gregory, then a resident of Newport, Ark., but now residing in Memphis, Tenn., was a partner of Ben M. Hogan in the contracting and construction business. Suit against Gregory was consolidated with the suit against Hogan.
Doty contracted in the name of Well Works Manufacturing Company, of Garden City, Kansas.
Fairbanks-Morse & Company, a corporation, has its headquarters in Chicago, but has a place of business in St. Louis, and maintains a branch office at Stuttgart, Ark.
The charges include $450 advanced for payrolls. [Doty testified he was to receive $4,550 for his work and materials.]
The assignment was in the form of a “Memorandum of Agreement” in which Hogan was referred to as the contractor, by whom the assignment was to have been accepted. Leo Galvin, who testified that he was “manager for Fairbanks-Morse & Company out of St. Louis,” explained that inclusion of Hogan’s name in the assignment “was an error in writing it up.”
The total of these two items is $4,556.04, or $714.04 more than the estimate of $3,842 mentioned by appellee as the amount approved by the P.W.A. engineer, and shown to be due Doty on the entire contract.
Twenty feet, 4 inches of 10-inch standard pipe, $42.21; freight charges on shipping motor and starter from Stuttgart to Mammoth Spring, $4.48; cost of motor, starter, and accessories, $712.10.
In view of the fact that this court thinks the judgment should be affirmed, the exact amount involved becomes immaterial.
Wilkerson v. White, 182 Ark. 1014, 33 S. W. 2d 365.
Barnes v. Hope Basket Co., 186 Ark. 942, 56 S. W. 2d 1014; R. C. A. Victor Co. v. Daugherty, 191 Ark. 401, 86 S. W. 2d 559. | [
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GripfiN Smith, C. J.
The appeal presents two questions: (1) Was the evidence sufficient to sustain the decree. (2) Should alimony have been awarded. Appellee receives $60 a month as a Spanish American war pension allowance. Pending the determination of this appeal the pension bureau has remitted only $30 monthly to appellee, the balance to be paid either to the wife or the husband as equities may be determined by judgment of this court.
The parties were married in 1903 and have six children, all of whom are of age. The complaint alleges that separation occurred in 1934. In 1937 appellee (who had lived with his wife in Michigan) went to Florida and there filed snit for divorce. The action was dismissed on petition of the plaintiff, who in November of that year moved to Garland county. Appellant lives in Detroit and has a gross income of approximately $25 per week paid by three of her children who board and room with her.
The fact of separation, within the meaning of the seventh subdivision of § 2 of act 20 of 1939, is established by a preponderance of the evidence. If the husband and wife had “lived separate and apart . . . for three consecutive years without cohabitation” the husband’s statutory right to the decree accrued. Jones v. Jones, 199 Ark. 1000, 137 S. W. 2d 238.
Act 20 provides that “. . . the question of who is the injured party shall be considered only in the settlement of the property rights of the parties and the question of alimony.” The trial court denied alimony. While it is difficult to determine who the injured party is, there seems to have been fault on both sides. In this state of the record the decree of divorce will be affirmed, but the cause will be remanded, with directions that the sum of $30 per month be paid appellant from November, 1939, until this decree becomes final, and thereafter the sum of $15 per month be paid. | [
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McHaNEy, J.
Appellants are the city, the mayor and board of commissioners of Fort Smith. Appellee brought this action to enjoin them from constructing along the center of Midland Boulevard in said city a dividing curb, separating the northbound traffic from the southbound and making of said boulevard a four-lane highway. The city adopted a resolution authorizing said construction which permitted crossings only at street intersections. Appellee owns and operates a tourist and trailer camp on said boulevard, his property fronting thereon about 105 feet and the center of his property is approximately half way between the intersecting streets of Dartmouth and Albert Pike Avenue. The block in which his property is located is 597 feet long. Appellee insisted that an opening in said center curb be left at a point opposite the center of his property so that northbound traffic could turn to the left in the center of the block and enter his property without the necessity of driving to the next street intersection and returning. Appellants refused to do so and this suit followed. The complaint alleged the above facts and that prior to the construction of his said camp he secured permission from the city' to construct and maintain two driveways or openings across the center of said boulevard and proposed to pave the crossings, but was advised not to do so because of the contemplated improvement thereof; that the city had entered into an agreement with the WPA for the widening of said boulevard and the construction of said center curb; that the plans for same provide no opening for his property; and that the construction of said curb will greatly damage and depreciate the value of his property to the extent of $7,000. The answer admitted that the city proposed to make the improvements aforesaid; that prior to the institution of this suit the Fort Smith district of Sebastian county sponsored a Works Progress Administration project for the making of said improvements; that before the U. S. Bureau of Public Roads would approve said project it insisted upon said center curb to divide said roadway into four lanes of traffic as aforesaid, with the-provision that no crossing be allowed except at intersecting streets; that appellants found on investigation that the WPA requirement as to crossings was necessary and expedient for the protection of persons and property using said boulevard and , adopted the resolution above referred to; that it is a continuation of U. S. and state highways through said city and one of the most used highways entering- and passing throug’h the city; that many persons have applied for permission to construct crossways across said boulevard at points other than street intersections, but all have been refused since the adoption of said resolution.; that if crossways are permitted between street intersections, operators of vehicles will turn into and cross traffic moving in the opposite direction, thereby increasing traffic hazards and endangering persons and property thereon; that if ap-pellee is permitted to compel the city to grant the right sought, then others operating businesses facing on said boulevard can compel the permission of crossways, thereby multiplying, the traffic hazards and in effect destroy the very object of the construction of said center curb.
Trial resulted in a decree for appellee, granting the relief prayed. The court found that the construction of said center curb would materially damage appellee’s property and that said resolution is unreasonable, arbitrary and partly discriminatory. The case is here on appeal.
We think the learned trial court erred in so holding. We cannot agree that the resolution adopted is either arbitrary, unreasonable or discriminatory. It may be true that appellee ’-s property will be adversely affected, but no more so than any other property similarly situated.- On the contrary, it appears to be reasonably necessary for the safety of persons and property and for the proper control or handling of traffic. It is undisputed that Midland 'Boulevard carries very heavy traffic; that it is a continuation through the city of two important U. S. highways and one state highway; and that an unbroken, except at street crossings, middle curb separating the four traffic lanes is proper construction and reasonably necessary under modern conditions of highway travel. It isnot contended by appellee that such a construction constitutes a nuisance, but only that it unreasonably interferes with his business. It is true the block in which his property is located is longer than the ordinary city block by about 200 feet, thereby causing northbound persons who wished to enter his place to travel a short distance further than they would if it were only the length of an ordinary city block. Certainly this could not form the basis for declaring the ordinance unreasonable or arbitrary.
There can be no doubt that the city has the power and the duty to make reasonable provision for the safety of persons and property using its streets by the enactment of ordinances, resolutions or by-laws looking* to that end, and that the city council or commission, or other municipal authorities have a wide discretion oh such matters. The power is conferred by statute. Sections 9543, 9642 and 9702 of Pope’s Digest. Our decisions so hold. In Sander v. Blytheville, 164 Ark. 434, 262 S. W. 23, we held that “under the general welfare clause of Crawford & Moses’ Digest, §§ 7493-4, a city council has a broad discretion in determining what is necessary for the public welfare, safety and convenience of the city’s inhabitants.” Syllabus 2. In the body of the opinion we said: “Now, there is a presumption, in favor of the ordinance, and one who challenges its validity, alleging it to be arbitrary, discriminatory or unreasonable, should make it so appear by clear and satisfactory evidence.” Citing North Little Rock v. Rose, 136 Ark. 298, 206 S. W. 449. In the more recent case of State ex rel. Latta v. Marianna, 183 Ark. 927, 39 S. W. 2d 301, after referring to the statutes above cited, we said: ‘‘Such are the varied uses and conflicting interests of city life that, as is said in Ex Parte Foote, 70 Ark. 12, 65 S. W. 706, 91 Am. St. Rep. 63: ‘Much must necessarily be left to the discretion of the municipal authorities, and their acts will not be judicially interfered with unless they are manifestly unreasonable and oppressive, or unwarrantably invade private rights or clearly transcend the powers granted them.’ ”
We, therefore, hold that, under the rules stated in the cases above cited, it cannot be said that said resolution is manifestly unreasonable or that it so interferes with appellee’s business or property as to be oppressive. He cannot be more harmed than any other property owner who owns property in the middle of the block. To sustain appellee’s contention would be virtually to give him the benefits and advantages of a corner lot which he does not own. Also, to sustain him would be either to discriminate against others similarly situated or to give them cross-overs in the middle of the other blocks, which latter would be to destroy the very purpose of the center curb.
We conclude that the court erred in the decree rendered. It is, therefore, reversed and the cause dismissed.
Mehaeey and Dokham, JJ., dissent. | [
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Humphbbys, J.
Florence Taylor and Maggie Townsend brought suit against James Keyes, administrator of the estate of Harrison Thompson, deceased, and the Planters. National Bank of Mena in the chancery court of Polk county, on the 26th day of January, 1938. The complaint filed -by them is as follows:
“The plaintiffs, Florence Taylor and Maggie Townsend, for their cause of action state that On the 26th day of September, 1917, B. F. Thompson, -now deceased, executed to his son, Harrison Thompson, a deed, to the following-lands in Polk county containing 240 acres (particularly describing same); that the consideration expressed in the deed was as follows: 'One thousand dollars, cash in hand (receipt of which is hereby acknowledged), and one thousand to be paid to each of the following persons to-wit: Maggie Bales $1,000, Scottie Taylor $1,000, Rose Mantooth $1,000, Florence Taylor $1,000 and Maude Mims $1,000; the above heirs one thousand dollars each in 1918 with the further provision that the grantee would take care of the grantor during the balance of the life of the grantor’; a lien was retained upon said lands to secure the payment of the residue of the purchase money. A copy .of said deed is hereto attached and made a part of this complaint; that at the time of the execution of the deed, Maggie Townsend, one of the plaintiffs herein, was named Maggie Bales and she is the person referred to in said deed as Maggie Bales; that B. F. Thompson had two children in addition to the children mentioned in the deed, to-wit: Dora Keyes and Frank Thompson, and had, prior to the execution of the deed as aforesaid, conveyed to each of said two children 80 acres of land; that the execution of the deed to Dora Keyes and Frank Thompson and the provisions of the deed to Harrison Thompson were intended by the said B. F. Thompson to be-a distribution of his estate among his children; that' Harrison Thompson made settlement with all of the children named in the deed except these plaintiffs, Florence Taylor and Maggie Townsend; that said defendants have received no part of the amount which the deed directed should be paid to them; that on the 29th day of September, 1933, for the purpose of securing the payment of a note for $2,200 and interest, Harrison Thompson executed to the Planters National Bank of Mena a mortgage on the same land described in the deed from B. F. Thompson to Harrison Thompson; that the mortgage recites that the mortgagor warranted the title against all lawful claims except a prior lien for $2,000, an undivided one-third interest in and to said lands to ivhich this mortgage is inferior.’ A copy of said mortgage is filed herewith and made a part of this complaint; that Harrison Thompson died on November 14, 1937, and James Keyes was by the probate court of Polk county appointed administrator and is qualified as such administrator; that the estate of Harrison Thompson owes debts in addition to the amounts specifically mentioned as being due these plaintiffs and the National Bank of Mena, which said debts amount to as much or more than the assets in the hands of the administrator.
‘ ‘ The plaintiffs allege that the claims of $2,000 mentioned in the mortgage as being a prior lien referred to the amounts due the plaintiffs herein and that the one-third interest in and to said lands referred to the one-third of the amount of the consideration mentioned in the deed from Ben Thompson to Harrison Thompson; that the defendant, Planters National Bank of Mena, accepted the mortgage ’ with the understanding and full knowledge as expressed in tlie mortgage that the claims of the plaintiffs were superior to the claim of the bank and that the plaintiffs had a lien superior to that of the bank; the plaintiffs pray for ¡judgment for the sum of $1,000 each with interest thereon at the rate of 6 per cent, per annum from the 26th day of September, 1917, and that the court by proper order direct a commissioner, to be appointed by the court to sell the lands described herein at such time and under such terms as the court may adjudge to be proper, and that from the proceeds of such sale the commissioner pay to these plaintiffs the amounts that may be adjudged to be due them, the costs and expenses of this suit and the sale, and whatever balance may remain, if any, pay to the Planters National Bank on the obligation mentioned herein, and if any amount should then remain, that it be paid to James Keyes as administrator of the estate of Harrison Thompson; and the plaintiffs pray such other and proper general relief as may be just and equitable. ’ ’
Subsequent to filing this complaint Florence Taylor died and the cause was revived upon proper showing in the name of the beneficiaries of her will.
An amended and substituted answer was then filed by the Planters National Bank of Mena as follows:
1.
“Defendant denies each and every material allegation of the complaint of the plaintiffs herein.
2.
“And this further: that on the 1st day of August, 1934, the deceased, Harrison Thompson, being then and there in full life and vigor and being indebted to this defendant in the sum of $150, executed his certain promissory note, of that date, in said amount, bearing interest at the rate of 8 per cent, per annum from date until paid, payable on the first day of July, 1935; that there is now due on said note the principal sum, together with interest thereon at the rate of 8 per cent, per annum'from August 1, 1934, less a credit of $18.75; a copy of said note is attached hereto, marked ‘Exhibit A,’ and made a part hereof; the original being held subject'to the inspection of all parties in interest.
“Also, on the 22nd day of May, 1937, the deceased, Harrison Thompson, being then and there in full life and vigor and being further indebted to this defendant in the sum of $998.77, executed his certain other and different promissory note, of that date, in said amount, bearing interest at the rate of 8 per cent, per annum from May 22, 1937; that a copy of said note is attached hereto, marked ‘Exhibit B,’ and made a part hereof; the original being held subject to the inspection of all parties in interest.
“Also: on the 13th day of September, 1.937, the deceased, Harrison Thompson, being then and there in full life and vigor and being further indebted to this defendant in the sum of $100, executed his certain other and different promissory note, of that date, in said amounf, bearing interest at the rate of 8 per cent, per annum from date until paid, payable 90 days after date; that there is now due on said note the principal sum, together with interest thereon at the rate of 8 per cent, per annum from September 13, 1937; that a copy of said note is attached hereto, marked ‘Exhibit 'C,’ and made a part hereof, the original Being held subject to the inspection of all parties in interest.
“This defendant is now the holder of each of the foregoing notes as original payee therein, and as such claims to be a general creditor of the estate of the deceased with the right to interpose any defense to the claims of the plaintiffs herein which either it or the estate may have. Wherefore, this defendant hereby specifically pleads that the cause of action of the plaintiffs as set out in their complaint is barred by the statute of limitations, for the reason that no action -was commenced to exxforce the lights of said plaintiffs within five years after their cause of action accrued.
3.
“And this further: that on the 29th day of September, 1933, the deceased, Harrison Thompson, then and there being in full life and vigor, a single, unmarried person, and being indebted unto this defendant in the sum of $2,200, made and executed to this defendant, as payee, his certain other and different promissory note, of that date, in said amount, bearing interest at the rate of 8 per cent, per annum from date until paid, due and payable 90 days after date; said note was renewed from time to time, upon payment of the accrued interest, the last of said renewal notes having been made and executed by deceased in his lifetime to this defendant on the I2th day of December, 1936, for the principal sum of $2,200 aforesaid, bearing interest at the rate of 8 per cent, from date until paid, due and payable one year after date.
• “To secure the prompt payment of the aforesaid debt at the maturity thereof, the deceased, Harrison Thompson, did on the date aforesaid, that is to say, on the 29th day of September, 1933, execute his certain mortgage whereby he conveyed to this defendant the following described lands, lying and being situated in Polk county, Arkansas, to-wit: (particularly describing the 240-acre tract in the deed from B. P. Thompson to Harrison Thompson) which said mortgage was duly acknowledged and filed for record in the office of the recorder of Polk county, Arkansas, on the 3rd day of October, 1933, and now appears of record there, in ‘Record Book A-3,’ at p. 479 thereof.
“A copy of the aforesaid note and mortgage is attached hereto, marked ‘Exhibit D’ and ‘Exhibit E’ respectively, and made a part hereof, the originals being held subject to the inspection of all parties in interest.
“This defendant says: that by virtue of the aforesaid debt in the principal sum of $2,200, evidenced by promissory note and secured by mortgage, as heretofore set out, it is a special, or secured, creditor, — as well as a general creditor — of the estate of the deceased, Harrison Thompson, and entitled further to the right of interposing any defense to the cause of action of the plaintiffs herein which either it or the estate may have. Wherefore, this defendant hereby specifically pleads that the cause of action of the plaintiffs as set out in their complaint is, barred by the statute of limitations, for the reason that no action was commenced to enforce the rights of said plaintiffs within five years after their canse of action accrued.
“Also, at the time of the execution of this defendant’s mortgage described above, the bar of the statute of limitations had fallen against, and was barring the enforcement of, the alleged and purported debt and vendor’s lien sued upon by the plaintiffs herein; and there was no memorandum showing any extension or renewal of said debt and lien, such as would operate to revive or extend said debt and lien and take the same out of the statute, indorsed on the margin of the record where the instrument, relied upon in this case as evidence of the said debt and lien, was recorded; and therefore, this defendant says, that as to it, the debt and alleged and purported vendor’s lien of the plaintiffs herein are barred by the statute of limitations, and as to it, constitutes no lien upon the property described in this defendant’s mortgage above set out.
“The aforesaid debt is now past due and unpaid, and there is now due thereon the principal sum of $2,200, together, with interest thereon from the 12th day of December, 1936, at the rate of 8 per cent, per annum to date.
“The said Harrison Thompson has departed this life, and his estate is in process of administration with Jim Keyes as administrator thereof. The deceased never married and, therefore, has never had any children; his father and mother preceded him in death; he had at one time the following brothers and sisters, namely: Maggie Thompson ('Bales Townsend), Scottie Thompson Taylor, Dora Thompson Keyes, Rose Thompson Mantooth, Maude Thompson Mims, Florence Thompson Taylor, and Frank Thompson; but Florence Thompson Taylor is now deceased, leaving her husband, J. D. Taylor, surviving her, and no children; Frank Thompson is also deceased with his widow, Minnie Martin Thompson, and four minor children, namely: Frank, Jr., John, Ben, and Ann, surviving him.
“This defendant says that its rights to have a foreclosure of said mortgage had become absolute; but that in order to have a complete foreclosure, it is necessary that the aforesaid persons, namely: Maggie Townsend, Scottie Taylor, Dora Keyes, Rose Mantooth, Maude Mims, J. D. Taylor, Minnie Thompson, Frank Thompson, Jr., John Thompson, Ben Thompson, and Ann Thompson, all being parties interested in the property in question, should he made parties to this action. Therefore, defendant prays: that the said persons be made parties to this action; that a guardian ad litem be appointed to represent the said minors, and that process issue to all, to the end that whatever interest they may have in the premises may be adjudicated in this action.
4.
"Wherefore this defendant prays: that the complaint of the plaintiffs herein be dismissed for want of equity and that they take nothing by this action; that this defendant, The Planters National Bank of Mena, Mena, Arkansas, have judgment against the estate of Harrison, Thompson, deceased, for said' sum of $2,200, together with interest from December 12, 1936, to date of said judgment, at the rate of 8 per cent, per annum; that this defendant have judgment against the plaintiffs and the estate of Harrison Thompson, deceased, for its costs herein laid out and expended; that the same be declared a lien upon the lands above mentioned; and that if the same be not paid within a time to be fixed by the court, skid property be sold to satisfy the same; that the equity of redemption of all parties to this action in said lands be forever barred; that a commissioner be appointed to make said sale and execute said decree; and that this defendant have all other just and equitable relief to Avhich this court considers it entitled.”
Maggie Townsend and Minnie L. Thompson, guardian, filed a reply to the amended and substituted answer of the Planters National Bank of Mena as follows :•
“Come the plaintiffs, Maggie Townsend and Minnie L. Thompson, as the natural guardian and next friend of Frank, John, Ben, and Ann Thompson, and for their reply to the amended and substituted answer of the Planters National Bank of Mena,
“First: Deny each, and every material allegation of the said amended and substituted answer.
“Second: Further replying- plaintiffs allege that under the provisions of its mortgage the hank is estopped io plead the statute of limitations against the claims of the plaintiffs.
“.Third: That the deed from B. F. Thompson to Harrison Thompson, in effect, created a trust relation and the statute of limitations could not begin to run against the claims of the plaintiffs as long as that relation existed.
“Wherefore, the premises considered, the plaintiffs pray that their claims he decreed to be a first lien on the land and that the land he sold in satisfaction thereof, and for all proper, general and equitable relief. ’ ’
The plaintiffs then filed a motion to dismiss the cause of action against the administrator as follows:
“Come the plaintiffs and dismiss their complaint herein as to the aclministrator, Jim Keyes, because:
“First: Neither the plaintiffs nor the defendant, Planters National Bank. of Mena, pray for judgment against the estate of Harrison Thompson and neither is entitled to judgment in this cause against said estate, and the administrator is not a necessary party.
“Second: Because the defendant, Planters National Bank of Mena, in its answer set out all of the heirs who have or could have any interest in the estate of Harrison Thompson and asked that all of said parties be made parties to this suit, and the said parties have been, at the instance of the Planters National Bank of Mena, made parties and have been duly summoned.”
On the 11th day of April, 1938, the trial court denied the motion and entered the following order:
“On this 11th day of April, 1938, the first day of the regular April term of this court, came on for hearing the motion of the plaintiffs herein to dismiss as to the administrator of the estate of Harrison Thompson, deceased: all parties appeared by their attorneys; and the motion was submitted to the court upon the pleadings and argument of counsel; whereupon the court after being well and sufficiently advised in the premises and after due consideration and deliberation did find that the said administrator was a necessary party to the action and that this motion came too late, being after issne joined.
“Therefore, it is, by the court, considered, ordered and adjudged: That the motion be denied and overruled; that the administrator, Jim Keyes, be given ten days to answer; and that the plaintiffs pay the costs of this motion. ’ ’
Thereafter, James Keyes filed a separate answer as follows:
“Comes now the defendant, James Keyes, administrator of the estate of ITarrison Thompson, deceased, and for his answer to the complaint of the plaintiff herein states:
“Deniés that on September 26, 1917, B. F. Thompson executed to his son, Harrison Thompson, a deed to the lands mentioned and described in the complaint of plaintiff; denies that the consideration expressed in said deed was $1,000 paid and $1,000 to be paid to each of the other parties named in the complaint; denies that a lien was retained in said deed to secure payment of the alleged residue of the purchase money; defendant denies that the said B. F. Thompson had conveyed to his two children, Dora Keyes and Frank Thompson, 80 acres of land as alleged in the complaint; denies that the execution of said deeds to Dora Keyes and Frank Thompson and the provisions in the deed to Harrison Thompson were by the said B. F. Thompson intended to be a distribution of his estate among his said children; denies that Harrison Thompson made settlement with all the children named except the plaintiffs; denies that plaintiffs have received no part of the amount which was directed to he paid to them in said deed.
“Defendant further answering denies each and every allegation set forth in the complaint of the plaintiff, except that this defendant admits that the said Harrison Thompson died as alleged in plaintiff’s complaint and admits that this defendant is the duly appointed, qualified and acting administrator of the estate of said decedent. -
“Defendant denies that estate owes debts in addition to the claims of the plaintiffs which amount to as much or more than the assets in his hands belonging to said estate.
“Further answering defendant says that neither the plaintiffs nor his co-defendant have ever presented any claim for probate against the estate of the said Harrison Thompson, deceased, and no claim in favor of either of them has ever been probated or allowed and that the assets of the estate in his hands are ample to pay all probated claims without the lands described in plaintiffs ’ complaint and that, therefore, this defendant is not a necessary or proper party to this action.
“Wherefore, defendant prays judgment on this his answer and that the plaintiffs take nothing as against him and that he recover all his costs in this suit expended and for all farther legal, equitable and proper relief.”
The cause was submitted to the trial court on the 18th day of May, 1938, upon the pleadings, exhibits thereto and the oral testimony of Mrs. Maggie Townsend and Mrs. Minnie L. Eddleman, Tom Eials and J. Y. Townsend on behalf of the plaintiffs and Fred Embry on behalf of the Planters National Bank, resulting in the following finding by the court:
“That the court has jurisdiction of the parties and subject-matter of this cause and finds: ‘That since this suit was instituted one of the plaintiffs, Florence Taylor, departed this life; that she made a will be-, queathing to Minnie L. Thompson for the use of Frank, Jr., John, Ben, and Ann Thompson, the children of Minnie L. Thompson and of Frank Thompson, deceased, all amounts due her by the estate of H. Thompson; that said will has been duly probated; that upon the death of Florence Taylor her cause of action was revived in the name of Minnie L. Thompson as the guardian and next friend of the said minor children; that since said revival of said cause Minnie L. Thompson has married Ira Ed-dleman ; that Maggie Townsend was Maggie Bales.
“The court further finds that Harrison Thompson died on November 14, 1937; that he had never been married ; that J ames Keyes is the administrator of his estate'; and that there are no persons interested by inheritance in the estate of Harrison Thompson except Dora Keyes, Maggie Townsend, Bose Mantooth, Scottie Tayloi, Maude Mims, and the minor children of Prank Thompson, deceased; that J. D. Taylor, named as one of the defendants, is the husband of Florence Taylor, deceased, but has no interest in the estate of Harrison, Thompson, his wife having by will bequeathed her interest to the children of Prank Thompson.
“The court further finds that B. F- Thompson had eight children; that desiring to divide his property among his children he gave Dora Keyes and Prank Thompson each eighty acres of land and executed a deed to Harrison Thompson to the following lands: (Particularly describing the 240-acre tract in question.)
That the deed acknowledged the receipt of $1,000 and the balance of the consideration was that Harrison Thompson would pay Maggie Bales, Scottie Taylor, Bose Mantooth, Florence Taylor, and Maude Mims, children of the grantor, the sum of $1,000 each, and it was expressly provided that a lien was retained upon said land to secure payment of the amounts as stated.
“That Harrison Thompson paid Dora Keyes, Maude Mims, Bose Mantooth, and Scottie Taylor the amounts mentioned, but did not pay Maggie (Bales) Townsend and Florence Taylor; that there is now due each of them • the sum of one thousand dollars with interest at the rate of 6 per cent, per annum from the 29th day of September, 1933, making a total due each of them of one thousand, two hundred seventy-eight and 16/100 dollars ($1,278.16); that there is a valid lien against the land aforesaid for said amounts.
“The court further finds that on the 29th day of September, 1933, Harrison Thompson, to secure the payment of a note for twenty-two hundred dollars ($2,200) bearing interest at 8 per cent, per annum, executed a mortgage to the Planters National Bank of Mena, on the lands herein described; that nothing has been paid on the principal and there is now due on the interest $256.91, making a total of $2,456.91; that said mortgage was executed subject to a prior lien on said lands for the payment of two thousand dollars, being the debt found herein to be due Maggie Townsend and Minnie L. Eddleman as guardian.
“It is, therefore, by the court considered, adjudged and decreed that the plaintiffs, Maggie ToAvnsend and Minnie L. Eddleman, as guardian and next friend, each have and recover $1,278.10, Avith interest from the date until paid at the rate of 6 per cent, per annum; that the Planters National Bank of Mena have judgment against said lands and the administrator of the estate of Harrison Thompson in the sum of $2,456.91, Avith interest from this date until paid at the rate of 8 per cent, per annum; to secure the payment of the judgments the parties have liens on the land described herein, which are prior and paramount to any right, title, claim, interest, equity or estate of any parties defendants herein, or any one claiming through, by or under them, except that the lien of Maggie Townsend and Minnie L. Eddleman is superior to the lien of the Planters National Bank of Mena. It is further considered, ordered, adjudged and decreed that if the sums herein mentioned are not immediately paid Avith the costs of this action, the commissioner of this court, after he shall have advertised the time, terms, and place of the sale for 30 days publication in some newspaper in Polk county, Arkansas, having a bona fide circulation therein by at least tAvo insertions, sell at the Avest door of the courthouse, in the city of Mena, at public outcry to the highest bidder, on a credit of three months, the lands herein described. The purchaser at such sale shall be required to give bond Avith approved security for the payment of the purchase price and a lien shall bo retained on said land to further secure such purchase price; provided that if Maggie.Townsend shall become the purchaser at such sale for d|i amount in excess of the judgment in her favor, in lieu of giving bond she may credit the amount of her bid, less the commissioner’s fee, upon the judgment herein rendered at the time of the confirmation of such sale, which credit shall be an ex-tinguishment of this judgment to the extent of such credit; and, provided further, that if her bid shall exceed the amount of the judgment, she shall be required to give bond only for the overplus. The same provisions shall apply to Minnie L. Eddleman in the event she should become the purchaser. If the Planters National Bank be comes the purchaser at such sale, it shall only be required to give security for the payment of the amounts adjudged to be due Maggie Townsend and Minnie L. Eddleman, guardian, and whatever amount its bid is in excess of the amounts due said parties combined with the judgment of the Planters National Bank.
“It is further considered, ordered, adjudged and decreed that, upon a sale of said lands and property as aforesaid, and confirmation thereof by this court, all of the right, title, claim, interest, equity, or estate of the parties connected with this suit either plaintiffs or defendants in and to said property, and every part thereof, shall be and same is hereby decreed to be forever barred and foreclosed, including all rights or possibility of dower and homestead of' any of said parties.
“It is further considered, ordered, adjudged and decreed that M. M. Martin, chancery clerk, be and he is hereby appointed commissioner of this court to execute this decree, to make the sale aforesaid, and report his actions hereunder to this court. The plaintiffs shall pay all costs that they have caused to accrue and the Planters National iBank shall pay all-costs that it has caused to accrue; the commissioners (and costs of sale) shall be divided equally between the plaintiffs and the Planters National Bank.
“From the proceeds of the sale the commissioner shall first pay the cost of sale, the amounts adjudged to be due Maggie Townsend and Minnie L. Eddleman, guardian and next friend, then the Planters National Bank of Mena, and if there should remain any balance pay the same to James Keyes^dministrator.
“And the court doth retain control of this cause for such further orders as may be necessary to enforce and protect the rights of the parties hereto, as well as any who may subsequently become parties hereto by proper proceedings.”
Appellants have duly prosecuted an appeal to this court from the findings and decree of the trial court.
The record reflects that Florence Taylor and Maggie Townsend were the daughters of B. F. Thompson and that he had six other children; that prior to the execution of the deed by him to Harrison Thompson on September 26, 1917, he had conveyed to two of them, Dora Keyes and Frank Thompson, each, 80 acres of land; that the deed he made to Harrison Thompson did not mention Dora Keyes and Frank Thompson, to whom he had theretofore conveyed lands; that the deed contained the names of the other six children; that in addition to the consideration mentioned in the deed to Harrison Thompson it was provided among other things and as a part of the consideration therefor that Harrison Thompson should support the grantor, B. F. Thompson, for and during his life; that the deed also referred to the five persons to whom Harrison Thompson should pay $1,000 each in the year 1918 as his heirs. These circumstances indicate that in selling the land to Harrison Thompson his father was parting with all of his property else he would not have required Harrison Thompson to support him during his life. We think it reasonably inferable that in making the deed his purpose was to equalize his children in the disposition of his property by requiring his grantee to pay each of the heirs who had received nothing up to that time $1,000 each, and, therefore, wé cannot agree with the learned attorneys for appellant that the sale of the land by B. F. Thompson to Harrison Thompson, his oldest son, was a common bargain and sale proposition and created the relationship of debtor and creditor, with security, between B. F. Thompson and Harrison Thompson. We do not think it can be said that the five heirs to whom Harrison Thompson was required' to pay $1,000 each were constituted agents under the deed to collect the money for B. F. Thompson, the grantor. We thinks it very clear that .B. F. Thompson expected each of the heirs mentioned in the deed to receive $1,000 each for their several benefits as a part of the consideration for the conveyance of the 240-acre tract. It is true that B. F. Thompson retained a vendor’s lien to enforce the payment of the balance of the purchase money, but it was for the security of the five heirs he mentioned in the deed and not a security for himself. The testimony reflects that the plaintiffs in this action, who were two of the heirs mentioned in the deed, were never paid the $1,000 each by Harrison Thompson and that when he executed the mortgage to the Planters National Bank he placed a provision in it recognizing his indebtedness to the plaintiffs and his obligation to pay same. He specifically states in the mortgage executed by him to the Planters National Bank that the mortgage he was giving it was inferior to the vendor’s lien securing his indebtedness of $2,000 and interest to the plaintiffs. It is true that the plaintiffs’ right of action accrued in 1918 and that more than five years had elapsed before the mortgage was executed to appellant and before the institution of this suit, but one may toll the statute of limitations by a written recognition of the debt either before or after the statutory bar.
We think the provision in the mortgage executed by Harrison Thompson to the Planters National Bank of Mena was a written recognition or acknowledgment that he owed the plaintiffs $2,000 which was secured by a vendor’s lien on the property he was mortgaging to it and that a consideration for giving it the mortgage was that the mortgage should be inferior to the vendor’s lien on said tract of land securing the indebtedness he owed to appellees as a part of the purchase money to the very land he was mortgaging to it. This suit was instituted within five years after the written acknowledgment of the indebtedness. The language used by Harrison Thompson was that he warranted the title to it as “against all lawful claims except a prior lien for $2,000 'in an undivided one-third interest in'and to this land to which this mortgage (meaning the bank’s mortgage) is inferior. ’ ’
This court said in the case of Haney v. Holt, 179 Ark. 402, 16 S. W. 2d 569, that: “He (referring to a second mortgagee) purchases only the surplus or residuum after satisfying the other incumbrances; if 'a mortgage expressly provides that it shall be subject to a prior mortgage, it is subject to it independently of the fact that the prior mortgage is not of. record. The plain tiffs, by accepting their subsequent mortgage under the circnmstances aforesaid, ceased to be strangers to the defendant’s prior mortgage, and Avere thereby brought into contractual relations Avith said mortgagee.” And, also, said in the case of Clapp Bros. & Co. v. Holliday Bros., 48 Ark. 258, 2 S. W. 863, that: “A mortgagee avIio accepts a mortgage Ávhich recites a prior mortgage of the same property, and proAddes for its payment, is estopped to deny the existence of the prior mortgage, or the Amlidity of its lien, though it be not acknowledged and recorded as required by the statutes; but he does not, by his acceptance, assume the payment of the first mortgage aboA^e the value of the mortgaged property Avhich he receives.” And, also, said in the case of Gunnels v. Farmers’ Bank of Emerson, 184 Ark. 149, 40 S. W. 2d 989, that: ‘ ‘ One Avho takes a mortgage reciting that it is a second mortgage is not entitled to assert that the prior mortgage is barred by reason of failure to indorse a memorandum on the record of a reneAval note secured by the prior mortgage as the second mortgagee contracted with reference to the first mortgage. ’ ’
The mortgage the bank took from Harrison Thompson Avas ample notice to the bank that a vendor’s lien had been retained on the whole property to secure the balance of the purchase money and by making any kind of investigation it could have ascertained that the unpaid purchase money amounting to $2,000 Avas due the plaintiffs in the case and not to anyone of the others mentioned in the deed. We think the debt was sufficiently identified by the writing itself, but certainly so by the oral evidence which in no Avay contradicted the Avritten instrument. The clause in the mortgage Avas a Avritten acknoAAdedgment on the part of Harrison Thompson that he OAved the debt and it Avas a Avritten contract and agreement on the part of the bank that the $2,000 and interest should be paid before the bank Avas paid the amount expressed in its mortgage. Our conclusion based upon the Avritten statement in the bank’s mortgage that its mortgage was inferior to the vendor’s lien of appellees and that appellees’ A^endor’s lien aauis prior to that of the bank clearly estopped the bank from pleading the statute of limitations even as a general creditor of the estate of Harrison Thompson, deceased, or under the theory that it, the bank, was a third party or a stranger to the contract.
It is true that there is some uncertainty in the provision as to whether the bank’s mortgage was subject to a lien on a one-third interest to the property or to a lien upon the whole property, and in view of the fact that the bank itself wrote the mortgage and the language used must be given the strongest construction possible against the party drafting the mortgage, and in view of the fact that it was talked over by the cashier, attorney of the bank, and Harrison Thompson and the deed itself reflected that the vendor’s lien covered the entire property, we think the construction should be given the clause that the bank’s mortgage was subject to the vendor’s lien upon the whole property for the balance' of the purchase money. In arriving at our conclusion we have only considered the evidence to which objections were not made, hence it becomes unnecessary to determine whether the administrator, James Keyes, was a necessary party or whether the testimony objected to was admissible.
No error appearing, the judgment is affirmed. | [
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Kirby, J.
Appellant, who resides in the State of Wisconsin, acquired title to an iSO-acre- tract of land in Little River County in 1928, but, through ignorance of our tax collection system, failed to pay the general taxes due thereon for the year 1928, and the land was returned delinquent, and was sold in June, Í929, to the State. The land was not redeemed within two years as required by law, and the forfeiture was duly certified to the State in June, 1931.
Suit was filed on August 24, 1931, pursuant to act 296 of 1929, page 1235, to confirm this forfeiture, and a decree of confirmation was rendered as prayed on May 16, 1932, quieting and confirming the title to the land in the State.
Thereafter, on May 15, 1933, appellant filed his verified petition in said action, in which he set up his ownership of the land and his lack of knowledge or information as to the pendency of the confirmation suit until after the rendition of the decree of confirmation. Various irregularities were alleged in the sale of the land to the State, which, if shown to be true, were sufficient to render the tax sale void, and it was the purpose of the confirmation proceedings to cure these irregularities.
The intervention alleged the nonpayment of the taxes due on the land for the year 1928, but did not allege the date of the sale, nor did the petition in alleging the various duties required of the collector and county clerk to make a valid sale, which under the law should have been performed in the year 1929, recite that year as it should have done. In alleging the omission of duties on the part of these officials, the year was alleged in each instance as “192.......” However, an amended intervention was filed which correctly stated the year to be 1929, but this amended intervention was not filed until May 29, 1933, which was more than one year after the date of the confirmation decree. This amendment did not constitute the filing of a new cause of action, but, as was said of a similar situation in the case of Sternberg v. Strong, 158 Ark. 429, 250 S. W. 344, “was properly an amendment to a complaint insufficient and defectively stated in the first instance.” Moreover, we judicially know that a sale for the 1928 taxes would occur, as the amended intervention alleged, in the year 1929, in which year the official duties of the collector and clerk in returning the land as delinquent and advertising it for sale would have been performed, and it was the improper performance of these duties whieh the intervention alleged rendered the sale invalid.
Appellee, who donated the land from the State after the rendition of the confirmation decree, intervened in this proceeding, and filed a demurrer to the intervention. The demurrer was sustained to the intervention, and it was dismissed as being without equity, and this appeal is from that decree.
The recent case of Black v. Waddell, ante p. 872, is decisive of the question presented on this appeal. We there said: “We think the clear intent and meaning of § 9 of act 296 is to grant to the true owner one year from the date of the confirmation decree in which to assert any defenses which might have been available to him prior to the decree, and that this right is conditioned only upon his ability to show that the tax sale or forfeiture to the State was void or voidable. Since § 9 of act 296 is construed to be an extension of one year of grace to the landowner, conditioned only upon his ability to show that the tax forfeiture or sale was void or voidable, it necessarily follows that it is immaterial whether or not he had actual or constructive notice of the pendency of such suit.”
The intervention sufficiently alleges the invalidity of the forfeiture to the State and contains the jurisdictional recital that the owner had no knowledge of the pendency of the confirmation suit until after the rendition of the decree of confirmation. Now, while the decree may have cured the irregularities which otherwise would have rendered the sale void, the confirmation was subject to the rights of the owner within one year to intervene by filing a verified motion asserting that he had no knowledge of the pendency of the suit and setting up a meritorious defense to the complaint upon which the confirmation decree was rendered. The case of Black v. Waddell, supra, is decisive of the question that a showing that the original forfeiture was void is a meritorious defense within the meaning of § 9 of this act.
"We conclude therefore that the court was in error in sustaining the demurrer to the intervention, and the decree is reversed, and the cause will be remanded with directions to overrule the demurrer. | [
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