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Holt, J.
December 15,1936, appellee, H. W. Holmes, filed complaint making appellant, W. W. Toler, and certain alleged employees of Toler, defendants. In this complaint Holmes alleged that he was the owner of a certain tract of land in Lawrence county and certain personal property thereon; that the defendants were unlawfully removing, and attempting to remove, the personal property from -the lands and out of the State of Arkansas.
He further alleged that W. W. Toler owned no property in the state and asked for a temporary restraining order and that upon final hearing it be made permanent, and further sought damages for the unlawful conversion of the property.
Toler is a nonresident of Arkansas and service was sought by warning order. An attorney ad litem was appointed and gave notice to Toler of the suit, furnishing him a copy of the complaint.
Toler filed separate answer September 28, 1937, denying the allegations of the complaint and further pleaded that he was the owner of the tract of land and the personal property described in Holmes’ complaint, having acquired title January 31,1934, by purchase 'from the Western Lawrence County Eoad Improvement District. He alleged that the road district had theretofore acquired title by sale and confirmation of the land in question for delinquent taxes for 1921 and 1922, and prayed for dismissal of appellee Holmes’ complaint, and that title to the land and “all appurtenances, machinery and fixtures be vested in him.”
Subsequent to the filing of appellant’s separate answer, W. W. Fischer, by interlineations in the original complaint, was made a party plaintiff to the cause, and April 4, 1938, appellees, Holmes and Fischer, filed an amendment to the original complaint and a reply to appellant’s answer in which they denied every material allegation in appellant’s answer, and in addition asserted that appellant’s alleged title to the property claimed to have been acquired from the Western Lawrence County Road Improvement District was void because of fatally defective description of the property in the sale and confirmation by the road district and in its deed of conveyance to appellant Toler..
They further alleged that on November 18, 1926, Holmes had redeemed the property in question for the delinquent taxes for 1921 and 1922, prior to the alleged sale and confirmation by the road district and that said district’s attempted sale and confirmation was void; that on March 28, 1924, Holmes sold to appellee, W. W. Fischer, all of the tools, machinery, buildings, and other improvements, located upon said land under a conditional sales contract whereby said lands were leased to Fischer for a. term of years ending April G, 1939, with permission to Fischer to maintain, use and operate same; that appellant and his employees had unlawfully taken possession of and removed said equipment and machinery belonging to Fischer and converted same to his own use, to Fischer’s damage in the sum of $25,051.40.
They further alleged that Holmes derived title to the lands by warranty deed on August 29, 1922, from the then owners and has had title thereto since that date. They prayed for cancellation of the purported deed from the road district to W. W. Toler, that title to the land be confirmed in appellee Holmes and that appellee Fischer recover damages for the wrongful conversion.
March 29, 1939, appellant Toler filed an amended answer in all material respects containing allegations similar to those contained in his separate answer filed September 28, 1937.
April 2,1940, the cause was heard before the court on the pleadings, testimony, depositions, and exhibits, submitted by the parties, and the court found that it had jurisdiction of all the parties and the subject-matter of the action; and
“That the lands involved in this suit were not properly and legally described in the complaint for foreclosure of delinquent-taxes due Western Lawrence County Road Improvement District; in the advertisement for sale, in the report of sale, and in the deed purporting to sell said lands to the defendant, W. W. Toler, and for that reason the purported sale thereof and the deed therefor to W. W. Toler is void and of no effect.
“. . . that the plaintiff, W. W. Fischer, is the owner of the rock quarry and all machinery located upon the lands involved herein ...
“That the plaintiff, H. W. Holmes, is the owner of the above described lands and is entitled to have his title thereto confirmed by this court.
“. . . that the defendant, W. W. Toler, has no title, right, or interest in and to said lands or to the rock crusher or machinery located thereon, and never had any such title by reason of his void deed from the "Western Lawrence County Eoad Improvement District, or by payment of any taxes he might have paid.
“. . . that the temporary restraining order should be made permanent, and that said defendant be forever enjoined from destroying, or removing any of the machinery or other personal property from said lands, and further enjoined fom interfering with the title or possession of the plaintiffs, W. W. Fischer and H. W. Holmes, to all of said real and personal property.
“. . . that the defendant, W. W. Toler, wrongfully, unlawfully and without right destroyed and converted to his own use portions of the rock crusher and machinery, railroad tracks, cars, and other personal property, belonging to the plaintiff, W. W. Fischer, to the amount of $1,000'for which amount W. W. Fischer has been damaged, and that he should have judgment against W. W. Toler for said sum, with interest from April 2, 1940, at 6 per cent, until paid.
“That the deed from Western Lawrence County Eoad Improvement District to W. W. Toler, as well as the deed from the commissioner in chancery conveying said lands to the improvement district, should be canceled as a cloud upon the title of plaintiff, H. W. Holmes,” and entered a decree accordingly. This appeal followed.
Appellant first contends that he was never properly served with summons in the cause; that no service was had upon him by personal service, and that the attempted service ¡by warning- order was invalid and insufficient.
Without attempting- to set out here the facts on the* question of the attempted service on appellant, it is undisputed that after appellant received notice from the attorney ad litem appointed by -the court, he filed, first, a separate answer to appellee Holmes’ original complaint.-, and later, after Holmes had amended his original complaint making W. W. Fischer a party plaintiff, Toler filed an amended answer, all without objection or attempting to preserve protest to the jurisdiction of his person. In addition, he filed certain motions, took depositions and submitted to a trial of the cause.
Clearly we think by these acts appellant entered his appearance for all purposes, even though not served personally, or constructively, with summons.
In Spratley v. Louisiana & Arkansas Ry. Co., 77 Ark. 412, 95 S. W. 776, this court said: “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. ’ ’
Appellant next contends that he obtained title to the land and rock quarry, machinery, and equipment as being a part of the freehold, by virtue of his deed from the Western Lawrence County Road Improvement District under date of January 31, 1934. We are of the view, however, that this contention cannot be sustained for the reason that the advertisement, sale and confirmation to the road district, of the land in question were had under an improper and void description, which made the deed of the road district tó the land void, and the deed under which the road district attempted to convey to appellant, Toler, was likewise void and of no effect.
Because of this inadequate and void description, the court below lacked the power to sell these lands for the road district taxes assessed against them. The lands were assessed, advertised, sold, and confirmed under the following- description: “R.B.R. S.E. Quarter of S.W. Quar.ter, Section 25, Twp. 18, R. 2 W. 25.88 acres,” which, as indicated, was inadequate and void.
In Rhodes v. Covington; 69 Ark. 357, 63 S. W. 799, this court said: “A description of land in a tax proceeding that does not sufficiently identify it ‘defeats one of the most just and obvious purposes of the statute — that of giving the owner notice that his land is to be sold, so that he may pay the tax and prevent the sales,’ or at least redeem his land before the expiration of the time allowed for that purpose. To effect the laudable purpose of protecting the owner, .the description should be such as will be readily understood by persons even ordinarily versed in such matters. A description which is intelligible only to persons possessing more than the average intelligence, or the use and understanding of 'which is confined to the locality in which the land lies, is not sufficient. Schattler v. Cassinelli, 56 Ark. 172, 19 S. W. 746.”
And in the later case of Halliburton v. Brinkley, 135 Ark. 592, 204 S. W. 213, the following description was held void: “N of RR Frl. SW1/4, section 26, T. 6 N., R. 7 S., 125 acres.” It was there said:
“ ‘In special statutory proceedings to enforce tax charges against lands, the abbreviations employed must have been in such general use and knowledge in reference to government surveys that the meaning thereof will be intelligible, not only to experts but also to persons with ordinary knowledge of such matters.’
. “And referring to the use of the letters ‘RR’ in that description further said: ‘The abbreviation “RR” is not an abbreviation commonly used to designate government subdivisions. Government surveys were not made with reference to railroads. The abbreviation “RR” does not necessarily convey the meaning of railroad to one of only ordinary experience in land titles. As suggested by appellants (referring to appellants on that appeal), the letters could have reference to Nidge Road or River Road. It might refer to any natural or artificial monument in mind’.”
See, also, the recent case of Moseley v. Moon, ante, p. 164, 144 S. W. 2d 1089.
It follows that the road district had no title to the property and, therefore, nothing to sell.
Finally appellant urges that the chancery court was without power to award damages to appellee, W. W. Fischer, and that the evidence does not warrant a judgment of $1,000 in his favor.
On the pleadings filed in the lower court, however, Fischer was made a proper party plaintiff, and not only was injunctive relief sought, but the question of title to the property was in issue. Clearly these were matters properly before the court, and having acquired jurisdiction for these purposes, it properly retained jurisdiction to settle all matters arising between the parties growing out of the subject-matter, whether legal or equitable.
As far back at 37 Ark. 286, in the case of Conger v. Cotton, this court said: “The settled rule is, that where, by reason of any equitable element, a court of chancery acquires jurisdiction of a matter in controversy, it will retain it for the settlement of all rights between the parties growing out of and connected with the subject-matter, whether legal or equitable, so as to do complete justice, and may even adjudge damages for compensation, which it could not do, if they were the principal object of the suit.”
And in the later case of Cleveland v. Biggers, 163 Ark. 377, 384, 260 S. W. 432, this court said:
“The action of the court in sustaining the demurrer and dismissing the complaint is defended upon the ground that, as a suit for damages, relief could be granted only in a suit at law.
“The case of Horstmann v. LaFargue, 140 Ark. 558, 215 S. W. 729, is against that view. In that case a suit for personal injuries was brought in equity, and in the same suit it was asked that certain alleged fraudulent conveyances be uncovered. The jurisdiction of the court was challenged upon the ground that a suit for unliqui-dated damages could be maintained only at law: but we held that, inasmuch as it was necessary for the plaintiff to go into equity to uncover fraudulent conveyances, all the matters in issue should be adjudged and complete relief afforded.”
Much evidence was introduced by the parties as to the amount of damages sustained by W. W. Fischer by the removal of the' machinery and fixture's from the rock quarry. There is evidence that the damages were much greater than the court awarded, and also evidence that the damages are much less. 'Suffice it to say, however, without attempting to abstract this testimony, that we think the findings of the chancellor are not against the preponderance of the testimony.
On the whole case, finding no error, the decree is affirmed. | [
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Smith, J.
Amanda Bagsby and B. L. Zachary were married May 30, 1904, and on September 4 of the same year a son was born, who was named Blakely. Shortly after the birth of this son Mrs. Zachary obtained a divorce from her husband on the ground of desertion. In 1908 Zachary married a second time, and installed this wife in a home which he owned in Alma, Arkansas, where he resided with her until his death, which occurred in 19'22. Zachary was an employee of the Missouri Pacific Railroad at the time of his death, and was killed while pursuing his employment, and the administrator of his estate recovered judgment against the railroad company for the death of his intestate. The judgment was for $2,750, of which $2,000' was for the benefit of the widow and next of kin and $750 for the benefit of the estate.
On April 28,1922, suit was brought by the mother of Blakely Zachary as his guardian and next friend against his father’s second wife to recover his interest in his father’s estate. On June 18, 1923, a consent decree was rendered in this case, which recites the appearance of the parties in person and by attorneys, who “announced that settlement of the same had been reached by mutual agreement of the parties thereto.”
The decree further recited: “Whereupon the court finds that the parties have agreed judgment shall be entered in favor of the plaintiff for the sum of $650 in full satisfaction of his interest and claim in the property belonging to the estate of said Bert or B. L. Zachary, deceased, consisting of” the homestead, “and also in full satisfaction of the plaintiff’s interest and claim in and to all of thn personal property belonging to said estate, consisting of” the proceeds of the judgment against the railroad company and certain other personal property. It was therefore adjudged that plaintiff have judgment for $650 in full satisfaction of all his rights of inheritance in the estate of his father, and that “all right, title, interest and claim of said Blakely Zachary in and to said lot is hereby vested in Fannie Zachary in fee simple forever.”
After the rendition of the above judgment Mrs. Zachary sold and conveyed the homestead to appellant, Kuykendall.
On April 9, 1927, Blakely Zachary brought this suit in ejectment to recover the homestead from Kuykendall, and the cause was transferred to equity, and upon the trial there the chancellor decreed that the plaintiff was entitled to recover the property, subject only to the dower rights of Ms stepmother, all questions of accounting being reserved, and this appeal is from that decree.
It is the opinion of the majority that the instant case is not essentially different from that of Rankin v. Schofield, 81 Ark. 440, 8 S. W. 674, and is controlled by it. In this case, as in that, a compromise of a minor’s rights was effected without the direction or consent of the court, and the court was not called upon to examine the terms of the settlement or to find whether it was fair to the minor. It affirmatively appears, in this case as in the other, that the court found only that a settlement of the minor’s claim had 'been made, and a decree was rendered in accordance with this settlement. Such a decree was declared by Mr. Justice Battle, in the opinion on rehearing" in the Rankin case, supra, to be void.
The doctrine of the Rankin case was reaffirmed in the case of Frazier v. Frazier, 137 Ark. 63, 207 S. W. 215, where it was said:
‘1 Moreover, we are of the opinion that the court erred in not setting aside the order of confirmation for the reasons which affected the substantial rights of the minors. Neither the guardian nor the guardian’s attorney can make any admissions to the prejudice of the ward. McCloy & Trotter v. Arnett, 47 Ark. 445, 2 S. W. 71. TMs is in accord with the general rule that a guardian ad litem has no power to join in an agreed statement of facts on which an action to which an infant is a party is to be submitted for decision. Greene v. Mabey, 35 R. I. 11, 85 Atl. 118, Ann. Cas. 1915A, P 1290, and note. In Rankin v. Schofield, 70 Ark. 83, 66 S. W. 197, the court held that, in the absence of authority given by statute, the guardian cannot agree to any compromise or family settlement by which the property interests of his ward are affected, without the concurring sanction of the court to which he must look for authority to bind his ward. This is an application of the well-known rule that a guardian has no power to bind the infant by any admission of fact. So it may be said to be the settled rule in this State and elsewhere that a next friend or guardian ad litem, cannot by admission or stipulation surrender the rig’hts of the infant. It is the duty of the court to protect the interests of the infants, and see to it that their rights are not 'bargained away by those who represent them.”
This opinion is not to be interpreted as denying the right of the representatives of a minor litigant to effect a compromise of his litigation, for a compromise might in many cases be entirely proper and highly advantageous to the minor; but it does mean that a compromise cannot be effective unless it is first approved by the court as being fair to the minor, and the approval would, of course, imply such investigation on the part of the court as made the fact appear that the minor’s interest had not been sacrificed. But in a case, as in the Rankin case and in this, where it affirmatively appears that no investigation and determination was made, and the court’s only action was to embody the settlement in the decree, making the .settlement the decree of the court, it is void.
The decree here attacked, being void on its face, was subject to the collateral attack made against it. The decree setting’ it aside is therefore affirmed. | [
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Smith, J.
Act 16 of the. acts of 1917 — page 78— was “An act to create the Red River Bridge District.” This act' created an improvement district to construct a bridge through betterment assessments.
Act 178, approved February 18, 1920, (Yol. 1, acts 1920, p. 1463), authorized the district to collect tolls from the users of the bridge, and to pay its construction cost from the proceeds thereof.
At the Extraordinary 1938 Session of the General Assembly there was passed act No. 3 (acts 1939, p. 1119), entitled “An act to prohibit the-collection of tolls on bridges in this state where the commissioners of bridge districts have collected sufficient money to pay all lawful outstanding indebtedness of the bridge districts.”
By § 2 of this act No. 3 all such bridges were declared to be free of toll, and to be the property of the state of Arkansas, and should thereafter ‘ ‘ be maintained by the Arkansas Highway Department, as is now provided by law.”
At the regular 1939 session of the General Assembly there was passed act 174, p. 411, entitled “An act to appropriate surplus funds in the hands of Red River Bridge District for the paving of- a highway leading to the bridge at Index, Arkansas.”
This act 174 authorized the board of commissioners of Red River Bridge District ‘ ‘ to retain all- moneys now held by it, over and above whatever such amount as may be necessary .to pay the outstanding indebtedness of said district until such time as the State Highway Department shall pave, either with its own funds, or as a Federal Aid project, or as a WPA project, that part of highway No. 71 leading from the north end of the bridge at Index, Arkansas, to Ogden, Arkansas.”
Act 174 further provides that when the indebtedness of the district has been paid, and the funds remaining have been expended in improving the above mentioned road, the district shall be dissolved, and its commissioners discharged and released.
A complaint was filed by the State Highway Commission, in which the organization of Red River-Bridge District was alleged under the provisions of act No. 16 of the Acts of 1917, and that pursuant to act 178 aforesaid tolls had been collected in excess of the cost of the bridge and of all other indebtedness of the bridge district. It was prayed that this excess be covered into the state treasury to the credit of the appropriate highway fund.
An answer was filed denying the right of the highway commission to the relief prayed, and the case was submitted to the chancery court upon an agreed statement of facts, in which it was recited: (1) That the state took over the bridge built by the district upon the passage of act No. 3 of the Extraordinary Session of 1938, “and the . same is now being ’ maintained, operated and controlled by the State Highway Department as a part of the highway system of the state of Arkansas known as U. S. highway No. 71,” and (2) That the commissioners of the district now have on hand $11,000, collected from tolls, and that “all outstanding bonds of said Red River Bridge District have been paid, and all debts owing by the district have been paid.”
Upon these facts it was decreed that act 174, supra, was a local act, and void for that reason, being violative of amendment No. 14 to the constitution, which prohibits the passage of such local legislation; and the parties concur in that holding.
It was then ordered that “the funds now in the hands of the defendant commissioners and its officers, amounting to the sum of $11,000 be turned over to the plaintiff for the use and benefit of U. S. highway 71 for the maintenance of the bridge across Red River,” and the commissioners were ordered to cover said funds into the treasury of the state of Arkansas for said purpose.
The commissioners of the bridge district have appealed from that decree, and, for its reversal, it is argued that the acts creating the bridge district have not been repealed; that the bridge was erected and operated pursuant to the provisions of these acts, and that the commissioners have not been released from the duties imposed by those acts, “and have not been directly authorized to whom they are to pay the funds on hand. ’ ’
We think the court was correct in ordering the surplus funds covered into the state treasury. The district has fully performed all the functions for which it was created. ‘The bridge is an essential part of highway 71 —-a unit in the state’s highway system. The state has assumed the obligation of maintaining and operating the bridge, and it is stipulated that this obligation is being performed, and it must be assumed that the state will continue to perform the obligation it has undertaken.
A different question would be presented had this surplus of $11,000 been accumulated from the collection of betterments assessed against the lands in the district. But it was not. It is the proceeds of tolls collected from persons who used the bridge and paid the tolls demanded, and the return of these tolls is not only impracticable but is impossible.
The cases of Williams v. Fort Smith, 165 Ark. 215, 263 S. W. 397, and State, ex rel Attorney General v. Little Rock-Highland Paving District No. 24, 199 Ark. 430, 133 S. W. 2d 878, announce the principles which control here.
In the case first cited a controversy arose over old paving material which was taken up by a new street improvement district, and replaced with new paving. Both the city and the owners of property abutting on the repaired street claimed the old material, and a suit was brought to restrain the city from appropriating the old material to the city’s use. The chancery court held that the old material belonged to the city, and, in affirming that decree, it was said by this court that the old improvement district was but an agency for the purpose of constructing the improvement, and that the district had no proprietary interest in the street, and that whatever control it had was given it for the purpose of making the improvement,' and that the right of control ceased upon the completion of the improvement. The cases of Pine Bluff Water Co. v. Sewer District, 56 Ark. 191, 19 S. W. 576, and Pulaski Gas Light Co. v. Remmel, 97 Ark. 318, 133 S. W. 1117, were cited to support those declarations of law.
It was there further said that the authority of the municipality over a street did not pass away on account of the authority given an improvement district for a special purpose, and that “neither did the taxpayers of the district, as such, or as abutting owners, gain any proprietary interest in the street, or in the material used hy reason of the fact that the improvement was constructed and paid for by taxation on the benefits to adjacent property.”
In the second case cited, that of State, ex rel. Attorney General v. Little Sock-Highland Paving District No. 24, supra, there was involvéd the construction of acts 11 and 112 of 1927. Under act 11 the state took over most of the roads in the state which had been constructed by improvement districts, and assumed the payment of the obligations of the districts. Act 112 dealt with the funds of districts whose roads were not wholly included in the state highway system. In construing these acts it was held (to quote a headnote) that “If the roads of a district are taken over by the state under the authority of act No. 11 of 1927, the funds of the district shall also be turned over to the state; if a part only is taken over, then only a part of the funds are taken on a mileage basis; if no part of the district’s roads are taken over, then the state takes no part of the funds on hand.” In other words, the holding is that, where the state takes over a road or street or bridge which is a part of a road constructed by an improvement district, and assumes the obligation of paying the indebtedness of the district, and of maintaining the improvemeiit, the state acquires' also the assets of the district. The $11,000 surplus is a part of the assets of the district, just as the bridge itself is, and the state takes title to all the property owned by the agency which it had created or which had been created under the authority of its laws.
The decree of the court, ordering the $11,000 surplus to be paid into the' state treasury, will be affirmed, but it will be modified by striking out the limitation that this particular fund must be used in the maintenance of the Bed Biver bridge. The money will be covered into the state treasury for the use of the state as provided by law, and the presumption will be indulged that the state will perform its obligation to maintain the bridge out of funds appropriated and available for that purpose. As thus modified, the decree is affirmed. | [
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WAYMOND M. BROWN, Judge
|, Appellant appeals from the circuit court’s revocation of his probation. On appeal, he argues that the circuit court erred in (1) refusing his proffered jury instructions and incorrectly instructing the jury regarding sentencing, and (2) imposing a sentence upon revocation that it could not have originally imposed. We affirm.
On September 8, 1998, appellant was charged by information with one count of residential burglary, a Class “B” felony; and one count of theft of property, a Class “C” felony, in case number CR-98-750, due to an incident arising on August 5, 1998. On the same date, in case number CR-98-749, appellant was charged by information with one count of residential burglary, a Class “B” felony; and one count of theft of property, a Class “C” felony, due to an incident arising on a different date. Appellant’s signed guilty plea 12 statement was filed on September 11,1998. He was sentenced to 240 months’ suspended imposition of sentence (SIS) each on the residential burglary charges in case numbers CR-98-749 and CR-98-750, and 120 months’ SIS each on the theft-of-property charges in case numbers CR-98-749 and CR-98-750. This was reflected in the circuit court’s order entered on September 11,1998.
On October 9, 2002, appellee filed a petition for revocation of suspension in case number CR-98-749, alleging seven violations of the conditions of his SIS by appellant. On December 2, 2002, an order of nolle prosequi was entered as to that petition.
On January 23, 2007, appellee filed a petition for revocation of suspension in case numbers CR-98-749 and CR-98-750, alleging eight violations of the conditions of his SIS by appellant, including being charged with aggravated burglary in case number CR-06-1524, aggravated burglary in case number CR-06-1525, and burglary. Appellant’s guilty plea statement was signed and filed on January 8, 2008. Pursuant to appellant’s plea, he was sentenced to 120 months’ imprisonment in the Arkansas Department of Correction (ADC) on the revocation of the theft charge as reflected in the circuit court’s January 8, 2008 judgment and commitment order. The revocation petition was nolle prossed as to the burglary charges in case numbers CR-98-749 and CR-98-750 in an order entered on the same date.
On June 21, 2011, appellant was charged by criminal information in case number CR-11-716, with one count of residential burglary, a Class “B” felony; and one count of theft of property, a Class “C” felony, due to an incident arising on June 17, 2011. Appellant's! a guilty plea statement was signed and filed on August 26, 2011. In the circuit court’s judgment and commitment order filed on the same date, appellant was sentenced to 120 months’ imprisonment on the residential-burglary charge and 120 months’ SIS on the theft charge pursuant to his plea agreement.
On May 23, 2013, appellee filed a petition to revoke appellant’s SIS in case number CR-11-716, alleging that he had violated four conditions of his SIS, including committing the offenses of residential burglary and theft of property in case number CR-13-483. In its June 20, 2013 sentencing order, pursuant to his plea agreement, appellant was sentenced to 120 months’ SIS on the theft charge in case number CR-13-483. The residential-burglary charge in case number CR-13-483 and the theft-of-property charge in case number CR-11-716 were both nolle prossed.
On January 29, 2016, appellee filed a petition to revoke appellant’s SIS in case number CR-11-716, alleging that he had violated four conditions of his SIS: (1) failed to pay fines, costs and fees as directed; (2) failed to live a law-abiding life, be of good behavior, and not violate any state, federal or municipal law; (3) committed the misdemeanor offense of theft of property on November 13, 2016; and (4) committed the offense of residential burglary on November 13, 2015, in case number CR-16-84. On May 9, 2016, appellee filed an amended petition to revoke appellant’s SIS in case numbers CR-98-749 and CR-98-750, in addition to case number CR-11-716. On May 11, 2016, appellee filed an amended information seeking sentencing of appellant as a habitual offender due to his having nine felony convictions—four of which were classified as violent felonies under Arkansas Code Annotated section 5-4-501 (d) as amended—including a Class “C” felony conviction |4for forgery in case number CR-02-84, and an additional felony not already listed in three separate cases not already listed herein.
At the May 12, 2015 trial, the circuit court submitted appellee’s proffered jury instructions to the jury, which were as follows:
In your deliberations you may consider the possibility that [appellant] will be paroled. Eligibility for parole or transfer is as follows. Residential burglary is punishable by a term of years. If you sentence [appellant] to a term of years, he will be eligible for parole after he reaches the age of 55, and his regular parole or transfer eligibility date.
The State has also alleged that [appellant] is a violent felony habitual offender. He has previously been convicted of four violent felonies, residential burglary. The offense of residential burglary as a violent felony habitual offender is punishable by imprisonment in the Arkansas Department of Correction for a term of thirty to sixty years, and-or a fine of up to $15,000.
Appellant was found guilty and sentenced by a jury to 720 months’ imprisonment in the ADC on his residential-burglary charge in case number CR-16-84, 120 months’ imprisonment on his theft-of-property charge in case number CR-11-716, 240 months’ imprisonment on his residential-burglary charge in case number CR-98-749, and 240 months’ imprisonment on his residential-burglary charge in case number CR-98-750. This was reflected in the circuit court’s May 12, 2016 sentencing order. This timely appeal followed.
Appellant argues on appeal that the circuit court erred in (1) refusing his proffered jury instructions and in incorrectly instructing the jury regarding sentencing, and (2) | imposing a sentence upon revocation that it could not have originally imposed and should be reversed. This court necessarily addresses both arguments simultaneously.
A circuit court’s ruling on whether to submit a jury instruction will not be reversed absent an abuse of discretion. Appellant argues that the circuit court erred in accepting appellee’s proffered instructions because those instructions included a sentencing range that, according to appellant, did not apply to him. And since the sentencing range in the jury instructions did not apply to appellant, the argument goes, the sentence he received was illegal because it was for a period longer that he initially could have received.
Appellee sought sentencing of appellant as a habitual offender pursuant to Arkansas Code Annotated section 5-4-501(d), which states:
(d)(1) A defendant who is convicted of a felony involving violence enumerated in subdivision (d)(2) of this section and who previously has been convicted of two (2) or more of the felonies involving violence enumerated in subdivision (d)(2) of this section may be sentenced to pay any fine authorized by law for the felony involving violence conviction and shall be sentenced to an extended term of imprisonment without eligibility for parole or community correction transfer except under § 16-93-615 as follows:
(C) For a conviction of a Class B felony or for a conviction of an unclassified felony punishable by life imprisonment, a term of imprisonment of not less than thirty (30) years nor more than sixty (60) years[.]
Appellant did not object to being sentenced as a habitual offender; he sought sentencing pursuant to Arkansas Code Annotated section 5-4-501(b). With the enhancement imposed |fiby Arkansas Code Annotated section 5-4-501 (b), appellant would have faced a significantly lower sentencing range of five to forty years, as was stated in his proffered jury instructions.
At issue here is a change to Arkansas Code Annotated section 5-4-501(d)(2)(A), which became effective on April 1, 2015. Prior to April 1, 2015, residential burglary was not deemed to be a “felony involving violence.” However, beginning on April 1, 2015, residential burglary was included in the list of crimes considered to be a “felony involving violence.” This change serves as the basis of appellant’s argument, for he argues that none of his prior felony residential burglaries should have counted toward his habitual-offender status under section 5^4—501(d)(2) because they all occurred prior to the effective date of the amendment to the statute. He argues that he should have been sentenced under section 5-4-501 (b)(2), but was instead sentenced under section 5-4-501(d)(2), causing him to be sentenced illegally because sixty years’ imprisonment was more than he could have been sentenced to under section 5-4-501(b)(2). Ap-pellee addresses appellant’s argument, in part, as if it is an ex post facto argument. It does so in error.
We strictly construe criminal statutes and resolve any doubts in favor of the defendant. There is no better settled rule in criminal jurisprudence than that criminal |7statutes must be strictly construed and pursued. Nothing is taken as intended which is not clearly expressed.
Both the United States and Arkansas Constitutions prohibit the enactment of any law which imposes punishment on a person for an act done that was not punishable at the time it was committed or which increases or imposes additional punishment than what was prescribed for that act when it was committed. This constitutes the ex post facto prohibition. To fall within the ex post facto prohibition, the law must be retroactive, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it. Furthermore, the change in the law must have altered substantial personal rights, not merely modes of procedure that do not affect matters of substance.
Arkansas Code Annotated section 5-4-501(d)(1) explicitly refers to a defendant “who previously has been convicted of two (2) or more of the felonies involving violence enumerated in subdivision (d)(2)[,]” which includes residential burglary. From this language, it is clear that a conviction, enhanced under the statute in its current state, must have occurred \ rafter the effective date of the statute; a revocation cannot be enhanced under this statute. It is clear that the enhancement will apply only to the new conviction and not any prior convictions. And finally, it is clear that this statute does not require that all convictions included in determining the applicability of the enhancement occur after the effective date of the statute; only that they be violent felony convictions committed by the appellant. Nothing in the language of the statute limits counted violent felony convictions to those occurring after the effective date of the statute. Appellant committed four felonies that are now classified as violent felonies. Appellant does not question whether, or deny that, he committed the felonies. Accordingly, though addressed by appellee—despite having not been explicitly raised by appellant—it is clear that no ex post facto violation argument could be supported by the facts of this case.
This court agrees with appellee that appellant’s argument before this court is based on notice, as it was below, despite appellant’s due-process reference:
Well, you’re not giving him due process because, first of all, 16-93-609 hasn’t been modified since 2001. Subsection “b” of that says if you commit a violent felony offense, and have previously been found guilty of a violent felony offense, you shall not be eligible for parole. And then it defines violent felony offenses under 5-4-501(d)(2), which says a felony involving violence means residential burglary. So therefore what he gets today is going to be day-for-day according to the statute. That’s a violation of due process. He’s not been given any notice of this just a conviction on his residential bur glaries. He has not had one since August 26, 2011, which is over five years ago. They changed it last year.
| flWhile appellant was not on notice that a change to the statute was pending, he was on notice when the statute became effective on April 1, 2015. In Hunter v. State, this court stated that “[t]he habitual criminal statute was not designed as a deterrent, but is simply a punitive statute which provides in clear language that, in an appropriate case, a prior conviction, regardless of the date of the crime, may be used to increase punishment.” The statute clearly distinguishes between the conviction being enhanced, which must have occurred after June 30,1983, and the “previous” conviction(s) used for enhancement purposes of the new conviction, for which no limitation period is stated.
It is clear that appellant was not sentenced illegally. Appellant was sentenced to ten years’ imprisonment in the revocation of his theft-of-property charge in case number CR-11-716, though he faced a maximum of twenty years’ imprisonment on the original charge; and was sentenced to the twenty-year maximum in the revocation of the residential-burglary charges in case numbers CR-98-749 and CR-98-750. Only the sentence for the new residential-burglary charge in case number CR-16-84 was enhanced, for he faced a maximum of twenty years’ imprisonment on the charge, but because he was sentenced as a habitual offender under the amended Arkansas Code Annotated section 5-4-501(d)(2), his sentence could have been and was increased to the permitted sixty-year maximum. Because |inwe hold that there was no notice issue to appellant with regard to the increased penalty made by the change to Arkansas Code Annotated section 5-4-501(d)(2), and we find that there is no ex post facto violation presented by the facts of this case, we must necessarily find that the sentence imposed on appellant was not illegal.
Affirmed.
. Appellant signed the same on September 10, 1998.
. Appellant pled guilty to theft in case number CR-95-217; second-degree escape in case number CR 95-620; and theft by receiving in case number CR-95-620. Appellant pled guilty in each case except case number CR-16-84, in which he was found guilty and sentenced by a jury.
. Sipe v. State, 2012 Ark. App. 261, at 6-7, 404 S.W.3d 164, 169 (citing Jones v. State, 2012 Ark. 38, 388 S.W.3d 411).
. Ark. Code Ann. §§ 5—4—501(d)(1) & (d)(2)(C) (Supp. 2015).
. Ark. Code Ann. §§ 5-4-501(b)(1) & (b)(2)(C).
. See Ark. Code Ann. § 5-4-501 (d)(2)(A) (Repl. 2013).
. Ark. Code Ann. § 5-4-50 l(d)(2)(A)(xi).
. We note that as stated, appellant’s argument is not an ex post facto argument.
. Smith v. State, 352 Ark. 92, 101, 98 S.W.3d 433, 438 (2003) (citing Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002); Sansevero v. State, 345 Ark. 307, 45 S.W.3d 840 (2001); Hagar v. State, 341 Ark. 633, 19 S.W.3d 16 (2000)).
. Id.
. Smith v. State, 352 Ark. 92, 101, 98 S.W.3d 433, 439 (2003) (citing Graham v. State, 314 Ark. 152, 861 S.W.2d 299 (1993); Hales v. State, 299 Ark. 93, 771 S.W.2d 285 (1989)).
. McGhee v. State, 82 Ark. App. 105, 108, 112 S.W.3d 367, 369 (2003) (citing U.S. Const. Art I, §§ 9 and 10; Ark. Const. Art. 2, § 17).
. Id. (citing Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995)).
. Id.
. Though slightly vague in exactly what he is arguing, this court notes that appellant never expressly makes an ex post facto argument.
. Williams v. State, 346 Ark. 304, 309, 57 S.W.3d 706, 710 (2001) (citing Crail v. State, 309 Ark. 120, 827 S.W.2d 157 (1992) (“It is well settled that ignorance of the law or lack of knowledge of a legal requirement is never an excuse to a criminal charge.”)).
. Hunter, 8 Ark. App. 283, 283-J, 653 S.W.2d 159, 164 (1983) (citing Washington v. State, 273 Ark. 482, 621 S.W.2d 216 (1981)).
. Spivey v. State, 25 Ark. App. 269, 272, 757 S.W.2d 186, 188 (1988).
. This court notes that appellee is correct that appellant did not raise his illegal-sentence argument below but that this court was still permitted to address it. It is well settled that an appellant may challenge an illegal sentence for the first time on appeal, even if he did not raise the argument below. VanOven v. State, 2011 Ark. App. 46, at 3, 380 S.W.3d 507, 510 (citing Donaldson v. State, 370 Ark. 3, 5, 257 S.W.3d 74, 76 (2007)). The issue of a void or illegal sentence is an issue of subject-matter jurisdiction, which we may review whether or not an objection was made in the trial court. Id. (citing Donaldson, 370 Ark. at 5, 257 S.W.3d at 76). A sentence is void or illegal when the trial court lacks authority to impose it. Id. (citing Donaldson, 370 Ark. at 5, 257 S.W.3d at 76). | [
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Smith, J.
Appellee filed a complaint alleging two separate causes of action, under the Federal Employers’ Liability Act, against the trustees in 'bankruptcy of the appellant railway company.
The first count in- the complaint alleges an injury suffered in September, 1936. Appellee was then a section hand, with thirty years’ experience in that service, and he testified that he was more familiar with that work than was Hess, his foreman. The section crew of which appellee was a member consisted of himself, his foreman, and two other section men — Bryan and Perryman.
This crew, while riding on a motor or hand-car, saw a train approaching, which was not an unusual event. The crew stopped the car and proceeded to remove it from the track. No attempt is made to predicate negligence upon the time or manner of removing the car, which was done by two of the men lifting each end thereof. Perry-man and appellee were at the front end of the car, lowering it down the railway embankment or dump, which was about four feet high. Hess and Bryan were at the other end, near the railroad track. There was a space' of about five feet between the rear end of the car and the railroad crossties. As the train approached, Hess and Bryan released their hold and testified that they did so to avoid being struck by the train. One of the controverted questions of fact in the case is whether it was necessary for Hess and Bryan to release their hold on the car to pro-, tect themselves. Appellee testified that they could have retained their, hold on the car without endangering their safety, and that if they had done so the car would not have rolled down on him and Perryman, as it did do. No orders were given by the foreman, and none appear to have been necessary, except to remove the car from the track. All the men understood how the car should be removed.
Appellee testified: “Clyde Bryan and Jake Hess, the section foreman, turned loose of the car, and let it right on down on Perryman and me and that rod that comes from the sills on the car sticks out. We both turned sideways to check the car and that rod caught me right here.” Appellee testified that as a result of being-struck in this manner he sustained a hernia from which he has since suffered. A judgment was recovered by appellee on this count in the sum of $4,000.
The testimony is sharply conflicting as to whether appellee sustained a hernia or other serious injury; but we pretermit a discussion of the injury, as we dispose of the ease upon a consideration of the question of liability for the injury, without regard to its extent.
Appellee knew that Hess and Bryan.had released their hold on the car, but stated that “I thought they ought to have helped hold the car.” He described the cause of the injury as follows: “I was just trying to hold it, I was trying to hold it to keep it from going on down the dump, trying to keep it from going on down where it would he hard to get back up.” Appellee and Perryman did hold the car and it did not run down the dump. This was an act of their own volition. Perryman does not claim to have been injured. There appears to have been no reason why appellee might not have stepped aside to a place of safety, as did the foreman and Bryan, except that appellee knew it would be difficult to roll the car up the dump, if it were allowed to roll down.
As has been said, the suit was brought under the provisions of the Federal Employers’ Liability Act, and the sufficiency of the evidence to establish negligence is governed by the terms of that act and the applicable provisions of the common law. Missouri Pacific R. R. Co. v. Montgomery, 186 Ark. 537, 55 S. W. 2d 68. A headnote to the case of Toledo, St. Louis & Western R. R. Co. v. Allen, 276 U. S. 165, 48 S. Ct. 215, 72 L. Ed. 513, reads as follows: “3. Except as specified in § 4 of the Federal Employers’ Liability Act, the employee assumes the ordinary risks of his employment, and, when obvious or fully known and appreciated, the extraordinary risks and those due to negligence of his employer and fellow employees.”
Here, there was no superior knowledge on the part of the foreman, nor were any orders given by him to appellee as to the manner in which he should perform his duties. He knew Hess and Bryan had released their hold on the car, and there was no reason why he, too, should not have done so, except that he knew it would be difficult to roll the car up the dump, if it were allowed to roll down. He knew better than anyone else whether his strength would enable him to prevent the car rolling, and we, therefore, conclude that any injury which he may have sustained — whatever its extent may be — was the result of a risk which he had assumed as an incident to his employment.
Appellee’s injury did not prevent him from remaining in the service of the railway company, and with the loss of only a few days ’ time he continued working as a section hand, under the same foreman, until August 10, 1937, at which time he sustained a second injury, to com pensate which he sued in the second count of his complaint, and upon this count a judgment was recovered in his favor for $6,000, making a total recovery of $10,000 on the two counts.
Appellee’s second injury occurred in the following manner. The section crew remained unchanged except that Raymond Temple had replaced Bryan. The motor car had been taken off the track at the noon hour while the men ate their lunch. After eating, the car was placed back on the track or re-railed, as that action was called.
Appellee detailed the circumstances of his injury as follows. This was the same motor car that I was in the first time I was hurt, and the same foreman. We were putting the car on the track to go back to work. Me and Rufus Perryman picked up the front end and started west with it, and when we came around here the right hind wheel hit the rail; it didn’t take it, and when Mr. Perryman dropped it, it would not have hurt me any worse if you had stabbed a knife into me. To put the motor car on the track you just pulled it over there and leave the rear wheels in the middle of the track, and the two head men will pick up the front end of the car and come around here with it, and then the two rear men pick up their end and come around here with it, and that is all that is done. I was standing astraddle of the east rail holding .the motor car. We had our backs to it. Perryman was to my left on the same end. Hess and Temple were at the rear of the car. I couldn’t see them, as I had my 'back to them. Perryman was at the left end, south of me, and we were headed north. I was working on the north side of the rail, on the right-hand corner. Perryman and I were lifting that end of the car, and we had it off the ground and the track, Mr. Rufus Pehryman —when the weight of the car came down on me, I looked over my shoulder to see what was going on, and he was grabbing hold of the car. He had broken loose, and he grabbed for it and the weight of the motor car struck me and injured my back, and I haven’t been clear of pain since.
In answer to the question, “It (the car) dropped suddenly?” appellee answered: “Yes, sir, it went down.”
Upon Ms cross-examination appellee testified as follows: “Q. You were not looking at Perryman? 'A. Not until the weight of the car hit me. Q. You don’t know what he did? A. I don’t know what he did. All I know is that he dropped the car.”
Perryman testified as follows: As we started to pick up the car, to re-rail it, Mr. Childers said: “The handle bar is too hot,” and he reached hack and got Mr. Hess ’ sack and put it on it, and we went ahead and hailed the car. Witness did not drop his end of the car, hut did let it down when appellee said the handle bar was too hot. When this was done appellee picked up the gunny sack and put it on the handle bar, and we went ahead and picked up and hailed the car, and we both let the car down together. He did not at any time take Ms hands off the front end of the car and cause it to fall on appellee', and he knew nothing about appellee being injured until the following morning, when appellee stated that he had sprained his back.
. Temple testified that he did not notice anything unusual in the way the car was let down, and he didn’t hear appellee and Perryman say anything to each other. He saw appellee put the sack on the handle bar, and they went ahead and put the car on the track, and the first he heard of appellee being injured was when the car stopped and they were going to put it off, he said he had strained his back at the other place. Was lifting the back corner of the car, and it didn’t seem to jar me any.
Hess, the foreman, testified 'that he and Temple were at the rear end of the car, and appellee and Perryman picked up the front end, and they walked on around until the car came against the east rail, and that is where the car was set up, and when the car hit the rail he jumped off to ball the left rear wheel. His shoulder was under the car and he couldn’t see what happened. Appellee said nothing about being hurt at that time, but after we had put the car off at another stop about a half a mile away appellee said.something about wrenching Ms back. The car was let down all at once, abruptly enough to cause him to look up, and he saw appellee and Perry- man. looking at each, other, and then they reached down and picked the car up. He thought they let it down to get another hold on the car.
On his cross-examination Hess was asked: “Q. You knew that somebody had done something that they shouldn’t have done in putting the car on the track?” and he answered, “No, sir.” He was then examined as follows: “ Q. Why did the hand car fall ? A. I knew they let the car down. Q. You knew that one of them or both of them did something to cause it to come down, one or both? A. I figured both. Q. Did one of them or both of them? A. ‘Both, I judge. Q. But did one or both of them? Mr. Warner: He answered that. Q. No, he didn’t, he is judging, you didn’t cause it to be dropped? A. No, sir. Q. The other man on the rear of the car by you didn’t cause it? A. No, sir. Q. One or both of them in front? A. Yes, sir, one or both of them. Q. It dropped suddenly? A. Yes, sir, it went down.”
On his redirect examination Hess testified as follows : “ Q. Did the car go down in any different manner than it usually goes down? A. They just let it down when I noticed it. Q. Did you notice any jolt or jar or anything like that ? A. No, sir. ’ ’
On his further cross-examination Hess testified as follows: “Q. You stated they let the car down in the usual way that they set it down.? A. We set it down all the time. Q. Yet you told this jury that it dropped abruptly and suddenly and you looked up and saw them facing each other? A It didn’t go down no faster than ordinary. Q. They put it down like they always do ? A. It just went down. Q. Was that the usual customary way of handling a car; tell the jury why you looked up? A. Because they didn’t have it all the way around and set it down before they got to where they should have set it down. ’ ’
The second count — like the first — was based upon the Federal Employers’ Liability Act, and the Supreme Court of the United States, in the case of Atchison, Topeka & Santa Fe Ry. Co. v. Saxon, 284 U. S. 458, 52 S. Ct. 229, 76 L. Ed. 397, said: “As often pointed out, one who claims under the Federal Act must in some adequate way establish negligence and causal connection between, this and the injury.” In other words, before there can be a recovery, to compensate an injury to the employee, there must be negligence on the part of the employer with causal connection between that negligence and the employee’s injury.
Upon this issue, we think the case of Missouri Pacific R. R. Co. v. Medlock, 183 Ark. 955, 39 S. W. 2d 518, under the facts therein stated, is controlling here. In that case the injured employee relied upon testimony to the following effect: “ ‘We worked until about 2 o’clock, and we started to turn our car to come back to town; it was at the crossing, and we started to turn the car around, and it got hung and one of the boys went around to prize it loose, and that left two at my end of the car, and some way Sleepy Reeves stumbled and left the weight on me. ’ ” We there said that the fact that one section'hand had let the weight of the car down upon his fellow servant was not, alone, sufficient to support a recovery, but it was essential to show that there had been inattention or disobedience of orders, or other misconduct in the performance of duty, on the part of the employee who had let the weight of the car fall on his fellow servant.
In the instant case the testimony is sharply conflicting as to whether Perryman let the car fall; but inasmuch as appellee testified that he did, we must assume that the jury found the fact so to be. But, even so, there is no testimony that Perryman was negligent in this respect. Appellee did not, at the time of his injury, reproach Perryman, nor did he then make complaint that Perry-man had improperly performed his duty in assisting to re-rail the car. He admitted that he did not see what Perryman did, and he gave no testimony to support the finding that Perryman had negligently allowed the car to fall upon him. All the other witnesses testified that they saw nothing out of the ordinary to attract their attention.
The weight of the car was such that one might sprain his back by lifting it, and especially so if he performed that duty in an improper manner. This, we think,' is one of the risks of the employment in which appellee was engaged and which, he must be held to have assumed. There can he no recovery here unless it he shown that Perryman was guilty of some act of negligence causing the car to fall which occasioned appellee’s injury, and appellee offered no proof to show what that act was, except to say that Perryman let thé weight of the car fall down upon him. That fact was shown in the Med-lock Case, supra, hut we there said that the proof of that fact alone did not establish liability — an affirmative showing of negligence being required.
Inasmuch as that showing was not made, the judgment must he reversed, and, as the causes appear to have been fully developed by the testimony of all the witnesses present, the case will be dismissed.
■Humphreys, Mehaeey, JJ., dissent. | [
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McHaney, J.
Other branches of this litigation have heretofore been twice before this court. Dillen v. Fancher, 193 Ark. 715, 102 S. W. 2d 87, and Dillen v. Fancher, 195 Ark. 400, 113 S. W. 2d 483.
Appellant is the daughter of appellee and the late Dotson Fancher, she being one of the two heirs-at-law of the latter. Dotson Fancher died testate. In his will, which was duly probated, he named appellee and his father, W. A. Fancher, his executors, with the provision that, upon the death of either, the survivor should continue as sole executor. W. A, Fancher preceded the testator in death and appellee is and has been sole executrix of said estate. The will provided that no bond should be required and no accounting should be made to any court. Letters were issued to appellee without a bond and she has filed no accounts with the probate court.
Appellant filed in the probate court a petition praying that appellee be required to make bond, and to file inventory, appraisal and accounting, or be discharged as executrix. This petition was denied. An appeal was taken to the circuit court and was again denied. It is now on appeal to this court.
The question presented is: Shall the provisions of the will control, regardless of statutory provisions ? Section 22 of Pope’s Digest requires bond to be given before the granting of letters. Section 51 provides that executors and administrators shall take possession of decedent’s personal property and make a true inventory thereof. Section 580 requires an appraisement thereof. Other sections provide for the filing of settlements and accountings.
The clear intention of Mr. Fancher, as expressed in his will, was that his wife, and his father, or the survivor of them should serve, in this case his wife, as executrix without giving* bond and without making reports and settlements. In Bankhead v. Hubbard, 14 Ark. 298, it was held that where letters testimentary upon estates of deceased persons are granted by the clerk, in vacation, he has no discretion in any case to dispense with the bond required by statute, even where the will'directs otherwise, but that in such matters the probate court has a. large discretion which will not be controlled by this court, unless there is such outrageous abuse of it as to produce manifest injustice. This case is cited' in Thompson on Wills (2d Ed.), § 555, to support this statement: “In a few other states, the matter of requiring a bond of the executor is left to the discretion of the court. In still others, the executor must give a bond unless the testator in his will has directed otherwise. In the latter instance the direction amounts merely to a power given the court to dispense with the bond where it is deemed prudent to do so, but does not deprive the court of the power to require a bond if it is deemed necessary or is demanded by one who is interested in the estate,- but the testator’s wishes in the matter will be respected unless good reasons for disregarding them appear.”
Here, appellant is a remainderman in the estate of her father, — her mother, the appellee, being the life tenant. Dillen v. Fancher, 193 Ark. 715, 102 S. W. 2d 87. For this reason alone she claims the right to require a bond and an accounting. She does not allege and prove any mismanagement, waste, or conversion by the life tenant. Indeed, in the second appeal of this case, 195 Ark. 400, 113 S. W. 2d 483, it was held that a charge of waste was not sustained. In Woerner on Administration and Wills, vol. 2 (3d Ed.), p. 833, par. 251, it is said: “But if a court become satisfied that the executor, who was solvent when named in the will, is likely to become insolvent, and that there is danger that he may abuse his trust, or has ground to suspect that he will indirectly and fraudulently administer the estate to the prejudice of creditors or legatees, he will be ordered to give bond with sufficient surety' to protect the estate. In such case any person who has an interest in the estate may interpose to move for an order requiring security, and when the interest is averred positively and under oath it cannot be questioned on the trial of an application for security. And a bond given by an executor without sureties, although approved by the judge of probate, is not such a bond as the law contemplated.”
We think the matter of requiring bond and accounting rests largely in the discretion of the probate court, and that this court should not interpose to control such discretion unless a manifest abuse thereof is shown, and none is either alleged or proven in this case.
The judgment must, therefore, be affirmed. | [
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GriffiN Smith, C. J.
This appeal presents questions requiring a construction of act 193, approved March 3, 1937.
Appellee, for a consideration of $4,362.64, sold Perry county a tractor, payment to be made in equal quarterly installments of $545.33, beginning January 15, 1939. The last installment matures October 15, 1940.
The purchase is evidenced by an agreement of August 16, 1938, executed by the County Judge. At an adjourned term of County Court August 29, 1938, the contract was confirmed by an order which, if valid, would have the effect of a judgment.
Appellant Taylor, a citizen and taxpayer, intervened. ITe was granted an appeal to Circuit Court, where the cause was heard on stipulation, without jury.
The Circuit Court properly held that Amendment No. 10 to the Constitution does not prohibit counties from making contracts for expenditures in excess of revenues derived or anticipated from the so-called Turnback Fund.
In Anderson v. American State Bank, 178 Ark. 652, 11 S. W. 2d 444, we held that the Turnback was not a county fund, and was not controlled by Amendment No. 10. Other decisions have been consistent with the Anderson Case.
The Circuit Court’s second declaration of law was that act 193 did not prohibit Perry county from making contracts and incurring expenditures for the 1938 fiscal year in excess of amounts received during such period if payment is pledged from the Turnback.
In its third declaration the court held that if the act should he so construed as to prohibit counties from making contracts and incurring expenditures in excess of amounts actually received from the Turnback and other funds during a designated fiscal year, that part of the act Avould be void because the command can only be understood and the legislative intent ascertained by referring to Amendment No. 10, and § 23 of Art. 5 of the Constitution does not permit laws to be revived, amended, or the provisions thereof extended by reference.
In conclusion, the court held that the contract to purchase, the order of the County Court approving the claim, and the eight warrants payable from the Turnback were in all respects valid.
Counsel for appellee insists it is not reasonably possible to spell out of the language of act 193 any limitations upon expenditures from the Turnback. In the first place, they say, title to the act is the Legislature’s assurance that nothing is to be dealt with except Amendment No. 10.1
After stating the duties of Prosecuting Attorneys with respect to enforcement of the Amendment and mentioning by way of emphasis its purpose to prohibit issuance of warrants or the making of contracts in excess of revenues received from all sources, the act says: . . . ‘ ‘ and, hereby, especially from the provisions of act 63 of 1931, being the County Turnback Fund, for any current fiscal year.”
This provision is followed -by a. clause authorizing County Judges “to set aside out of said Turnback Fund heretofore received not more than 50 per cent, of said fund for the purpose of constructing and maintaining county roads.” Other portions -of the section relate to pre-existing indebtedness, which will be referred to in order.
Appellee contends that § 1 deals with but two matters: duty of Prosecuting Attorneys to enforce Amend- meut No. 10, and the right, created in County Judges, to set aside fifty per cent, of the Turnback, and . . . “in accomplishing- these objects the act certainly did not, by its language, place any limitation or. inhibition on the' expenditure of the Turnback. The only mention of tlie Turnback found in the act is that part of § 1 following the figures ‘1874’ beginning with the words ‘wherein it is provided’ and ending with the words ‘fiscal year.’ The part of the section just referred to is certainly only descriptive. It .merely, gratuitously and futilely, expresses the opinion of the Legislature as to what Amendment No. 10 provides. This language, being purely descriptive, has no legislative force or effect, and therefore of itself can place no limitation upon the expenditure of the Turnback.”
We agree with appellee that the language employed cannot, “of itself,” place a limitation upon expenditures from the Turnback. But the language is not' intended to stand alone. Some meaning must be given to words used by the Legislature in its obvious endeavor to identify the Turnback. We must presume the lawmaking body was apprised of the interpretation.given Amendment No. 10 by this court. There was knowledge that the Turnback had been' classed as a state fund — a fund exempt from the provisions of the Amendment. With this information before it, the General Assembly undertook to compel enforcement of what it considered salutary provisions of Amendment No. 10 — enforcement through express directions to Prosecuting Attorneys. But following- the mandate so expressed, and following enumerated prohibitions of the Amendment which was designed to prevent any county officer from making expenditures and creating obligations in a manner counter to the Amendment’s purpose, there was added the language in controversy, . . . “and, hereby, especially from the provisions of act 63 of 1931, being the County Turnback Fund, for any fiscal year.” To give the quoted part of the' section effect, the word “from” must be construed as meaning revenue arising from the Turnback.
In White v. Loughborough, 125 Ark. 57, 188 S. W. 10, in disposing of a case involving- annexation of additional territory to a pre-existing paving’ improvement district, Chief Justice McCulloch, speaking* for the court, said: “It is an instance of the Legislature declaring a right and referring to other existing laws for. the remedy, 'which method of legislation does not offend against that provision of the Constitution which declares that ‘no law shall he revived, amended, or the provisions thereof extended or conferred by reference to its title only. ’ ”
The instant statute is not one where a law was “re-A’ived, amended, or the provisions thereof extended or conferred by reference to the title only. ’ ’ Section 1 sets out, in explicit terms, the essential provisions of Amendment No. 10, There is no reference whatever to a title. But there is a declaration that the Turnback shall be controlled by the provisions of Amendment No. 10, and this may be done by the method adopted. Further evidence of the legislative intent to require counties to conduct their financial affairs with revenues received from all sources for a particular year is reflected by the emergency clause (§ 4 of act 193) where it is declared that failure of officials to enforce the Amendment has “brought about a condition of laxity . . . relative to expending more funds than [are] received during each fiscal year . . .” [Italics supplied].
It must be conceded that the act is ineptly expressed; yet, if we are able, from the terms employed, to determine what the purpose of the Legislature was, and if the manner of enactment does not. violate accepted constitutional construction, it is the duty of this court to give effect to the intent.
County Judges, “at their discretion,” are authorized to “set aside out of said Turnback Fund heretofore received, not more than fifty per cent, of said fund for the purpose of constructing and maintaining county roads.” A limitation on this right is that its exercise shall not impair pledges for payment of bridge improvement district indebtedness, nor shall the act affect “any agreements heretofore entered into for the payment of judgment or judgments entered against any county or counties of this state.”
Prior to approval of act 193, it was lawful for County Judges to pledge expectant funds from the Turnback. Hence, if an apportionment of 50 per cent, or any other part of such Turnback, when set aside in a separate account for construction and maintenance of county highways, should result in impairment of contracts made before the act was approved, to such extent the statute would be void.
We are of the opinion that the reference in § 1 of act 193 to “agreements heretofore entered into for the payment of judgment or judgments” contemplated valid contracts made by County Judges payable from the Turn-back. Where purchase was so made, an implied agreement arose that such judge, ivhen County Court convened and the claim was duly presented, would make an order of allowance. Such allowance would have the effect of a judgment. Under this construction no distinction is made between valid contracts, and agreements for judgments.
The judgment is reversed. The cause is remanded with directions to the Circuit Court to enter an order adjudging that payment of the warrants in question may be made from any presently available funds of the county. As to that part of the judgment directing payment from prospective Turnback funds — funds accruing to succeeding fiscal years — there is disregard of what we construe to have been the legislative intent, as expressed by act 193. Therefore, the agreement upon which the judgment was predicated is prohibited.
Act 193 is as follows: “An act to make it a misdemeanor for any county official in the state of Arkansas to violate the terms and conditions set out in Amendment No. 10 to the Constitution of the state of Arkansas for 1874. Be it enacted by the General Assembly of the state of Arkansas: Sec. 1. Hereafter it shall be the express duty of each Prosecuting Attorney in each respective judicial district in this state to enforce, without requiring affidavits of information, the terms and conditions of Amendment No. 10 to the Constitution of 1874 wherein it is provided, among other things, that no County Judge, County Clerk or other county officer, shall sign or issue any scrip, warrant or make any allowance for any purpose whatsoever or authorize the issuance of any contract or warrant, scrip or other evidence of indebtedness in excess of the revenue received from all sources and, hereby, especially from the provisions of act 63 of 1931, being the County Turnback Funds, for any current fiscal year, provided the various county judges at their discretion are hereby authorized to set aside out of said Turnback Fund hereafter received not more than 50 per cent, of said fund for the purpose of constructing and maintaining county roads, and when so set aside by proper order of County Court the same shall be used for that purpose only, and provided further this act shall not prevent the carrying out of any pledge made by any county for the payment of bridge improvement district indebtedness, and provided further that this act shall not affect any agreement heretofore entered into for the payment of judgment or judgments heretofore entered against any county or counties of this state. Section 2. The General Assembly realizing the terms and conditions imposed upon county officials in this state by virtue of Amendment No. 10 does hereby make this express intent as the intention of this act; namely, that, henceforth, it shall be the duty of e.ach Prosecuting Attorney in each judicial district in this state to adequately enforce the provisions of said Amendment No. 10 and that said Prosecuting Attorney shall be liable to impeachment of office if he or his office does not see to it that the provisions, terms, and conditions of Amendment No. 10 are adequately complied with; for the purpose it shall hereafter be necessary for each county official in this state to annually, during the last week of each year he is in office, supply the Prosecuting Attorney or his office in their office in their respective districts with a report showing funds received and funds paid out during each fiscal year. Section 3. All. laws and parts laws in conflict herewith are hereby repealed and this act is hereby designated to be severable and should any part thereof be held invalid such holding shall not affect any other part thereof. Section 4. Although the people of this state adopted Amendment No. 10 to the Constitution of the state of Arkansas for 1874, and although its provisions are adequate if properly enforced, the same have not been enforced and has thereby brought about a condition of laxity on the part of our county officials relative to expending more funds than received during each fiscal year; therefore, an emergency is hereby declared to exist and this act shall be in full force and effect from and after its passage. Approved March 3, 1937.
Stipulation: (1) On or prior to August 29, 1938, the plaintiff delivered to the defendant one D-6 Caterpillar Tractor 72-inch gauge, serial No. 2 H 5382 W, fully equipped. Said tractor was accepted by .said county. (2) The delivery and acceptance of said tractor was made pursuant to a contract of sale and purchase executed on behalf of said county on August 16, 1938, by Oscar Brazell, County Judge thereof, wherein the said county agreed to purchase of the said J. A. Riggs Tractor Company the tractor aforesaid, f. o. b., Little Rock, for the sum of $4,362.64. The purchase price for said machinery and equipment was to be paid by eight warrants of said county, each in the sum of $545.33, payable out of any money in the treasury of said county to the credit of the Highway Improvement Fund. (3) On August 29, 1938, the same being an adjourned day of the regular July, 1938, term of said court, the County Court of said county made and entered an order approving, ratifying and confirming said contract of purchase and sale, and upon the same day, after examining the duly verified and itemized claim of the said J. A. Riggs Tractor Company filed against said county for the purchase of said tractor, approved the same and ordered the County Clerk to issue and deliver the warrants in the amount and payable out of the funds as here-inbefore set out. Said warrants have been issued and delivered. (4) At the time of the purchase of said tractor said county was in need of machinery and equipment with which to maintain and construct county roads. That the equipment hereinabove described is suitable for said purposes, and was purchased at a price that was fair and reasonable. That is was to the best interest of said county to purchase the machinery and equipment aforesaid; that the county is now using the machinery and equipment and has been so doing since the date of its delivery, for the purpose of constructing and maintaining roads of said county, and that said tractor has been found to be satisfactory in all respects. (5) The Highway Improvement Fund hereinabove mentioned and out of which the warrants aforesaid are payable, consists exclusively of money received by Perry county from the state of Arkansas under act 11 of the Second Extraordinary Session of the Forty-ninth General Assembly, approved February 12, 1934, which designates said money in the state treasury as the “County Highway Fund,” sometimes also referred to as the “County Turnback Fund.” (6) The amount of money called for by either of the said contract of purchase, the allowance of the claim for the purchase price of said tractor, or the warrants issued thereon, all as aforesaid, when added to the aggregate of the contracts, allowances and warrants previously made and issued during the year 1938, payable also from the Highway Improvement Fund, exceeds the amount that will be received from the state of Arkansas by said county for credit to its Highway Improvement Fund during the fiscal year 1938.
Pertinent parts of Amendment No. 10 are: “The fiscal affairs of counties . . . shall be conducted on a sound financial basis, and no county court or levying board or agent county shall make or authorize any contract or make any allowance for any purpose whatsoever in excess of the revenue from all sources for the fiscal year in which said contract or allowance is made; nor shall any county judge, county clerk, or other county officer, sign or issue any scrip, warrant or make any allowance in excess of the revenue from all sources for the current fiscal year. . . . When the annual report of any . . . county in the state of Arkansas shows that scrip, warrants or other certificates of indebtedness had been issued in excess of the total revenue for that year, the officer or officers of the county . . . who authorized, signed or issued such scrip, warrants or other certificates of indebtedness shall be deemed guilty of a misdemeanor and upon conviction thereof, shall be fined in any sum not less than five hundred dollars nor more than ten thousand dollars, and shall be removed from office.”
Burke v. Gullege, 184 Ark. 366, 42 S. W. 2d 397; Stanfield v. Kincannon, 185 Ark. 120, 46 S. W. 2d 22; Ogden v. Pulaski County, 186 Ark. 337, 53 S. W. 2d 593; Independence County v. Independence County Bridge District No. 1, 187 Ark. 140, 58 S. W. 2d 938; Ladd v. Stubblefield, 195 Ark. 261, 111 S. W. 2d 555.
Article 5, § 23, of the Constitution: “No law shall be revived, amended, or the provisions there.of extended or conferred by reference to its title only; but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length.”
In Scales v. State, 47 Ark. 476, 1 S. W. 769, 158 Am. Rep. 768, Chief Justice Cockrill said: “It is well settled that § 23 of article 5 of the Constitution does not make it necessary, when a new statute is passed, that all prior laws modified, affected, or repealed by implication by it should he re-enacted.”
In Watkins v. Eureka Springs, 49 Ark. 131, 4 S. W. 384, this court said: “We are not, however, prepared to assert that when a new right is conferred or cause of action given, the provision of the Constitution quoted requires the whole law governing the remedy to be re-enacted in order to enable the courts to effect its enforcement. . . . They (the makers of the Constitution) meant only to lay a restraint upon legislation where the bill was presented in such form that the legislator could not determine what its provisions were from an inspection of it. What is not within the mischief is not within the inhibition. Every intendment is to be indulged in favor of the prerogative of the legislative branch of the government. A doubt of its powers to legislate inures to its benefit. The language of the provision is so broad that a literal construction would hamper legislation almost to the extent of prohibiting it.” See Farris v. Wright and cases cited in dissenting opinion by Mr. Justice Smith, 158 Ark. 519, 250 S. W. 889.
Article 2, § 17, of the state Constitution is: “No bill of attainder, ex post facto law, or law impairing the obligation of contracts shall ever be passed.” | [
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Humphreys, J.
Appellant and appellee were married on the 13th day of October, 1907, and resided on the north % of lot 10 in block 6 of the original donation to the town of Greenwood, Arkansas, during the time they lived together as husband and wife. Appellee brought a suit for a divorce against appellant in the Greenwood district of Sebastian county and obtained a decree from her, but she was allowed $25 per month alimony. The decree was set aside for some reason and they entered into a written agreement in which she settled her claim for alimony for $75 cash- paid by him to her. In this agreement, it was stipulated that they would live separate and apart and that neither would interfere or meddle with the business of the other. It also stipulated that appellant should have the custody and control of the two small children and further stipulated that appellant would not cause appellee any trouble over the homestead during his natural life. This agreement was signed on the 10th day of May, 1926. After the written agreement had been entered into, appellant and appellee joined in a deed to their son, Floyd Bell, on the 17th day of January, 1927, conveying him the land in question which appellee was still occupying, which deed was duly recorded and presumably placed on record by appellee.
Appellant moved back to Booneville where she had formerly lived and brought a suit in Logan county on the 11th day of September, 1930, for a divorce from appellee on the ground of desertion. In her complaint no mention was made of alimony or any interest in the homestead. Appellee was residing upon the homestead at the time and has continued to reside thereon since that time and pay the taxes on the property. Appellant was granted a divorce on the g*round of desertion on the 13th day of October, 1930.
Thus the matter rested until August 3,1939, at which time appellee brought a suit in the Greenwood district of Sebastian county against his son, Floyd Bell, to cancel the deed appellant and appellee had made to him and placed of record, alleging that there was no consideration for the deed and that it was placed of record through mistake; that his son, Floyd Allen Bell, had never been in possession of the property, but that appellee had been in possession thereof and paid the taxes thereon for many years.
Appellant obtained permission to file an intervention in the suit and did so alleging that the property was deeded to her son in good faith as far as she was concerned and that she joined in the deed on appellee’s promise that he would never try to take the property from their son, Floyd Allen Bell. She further alleged that the reason she had asked for no alimony and no part of the land involved in her suit for divorce in Logan county was on account of his promise never to take the property from their son or attempt to do so. She further alleged that since he had brought the suit to cancel the deed to their son and alleged that it was without consideration and that it was recorded through mistake that his conduct and acts showed that he had perpetrated a fraud on her in order to denude himself of his property so that she would not ask for alimony or division of the property in the Logan chancery court where she obtained a divorce in 1930. The prayer of her intervention was for the value of one-third of the lands owned by appellee at the time that intervenor obtained a divorce from him in the Logan chancery court. Their son, Floyd Allen Bell, who was made defendant in a. suit to cancel the deed, was duly served,' but. filed no answer and wholly made default. Appellee filed an answer to the intervention filed by appellant denying that any fraud was practiced by him on appellant to prevent her from asking for alimony in the suit she had brought in Logan county and stating that the property rights of appellant and appellee were settled by an agreement made and entered ilito by and between them on the 10th day of May, 1926, and that he paid appellant $75 in cash and further agreement on her part that she would not molest appellee’s right to the homestead during his lifetime and that the reason appellant asked for no alimony or property in that suit was that they both recognized at that time the validity of the separation agreement entered into between them and pleaded the judgment of divorce in her favor in the Logan chancery conrt in bar of her right to intervene in the suit he had brought in the G-reenwood district of Sebastian county to cancel the deed they had made to their son.
The cause was submitted tó the conrt upon the intervention and the answer thereto and the evidence introduced in the cause which resulted in a dismissal of the intervention for want of equity, from which is this appeal.
There is no evidence that any fraud was intended by either party in the separation agreement or at the time the deed was made by appellant and appellee to their son or that appellee perpetrated any fraud on appellant to prevent her from claiming an interest in his property when she brought her suit for divorce in the Logan county chancery conrt. No inducement was held out by him to keep her from asking in the divorce suit in Logan county for alimony or a division of the property. They lived separate and apart from 1927 until 1930 when she obtained a divorce in the Southern district of Logan county. The suggestion is made that at the time they joined in the deed to their son appellee had in mind that he would denude himself of his property in fraud of his wife’s rights in case she should subsequently obtain a divorce, but this is merely surmise.
This court said in the case of Taylor v. Taylor, 153 Ark. 206, 240 S. W. 6, that: “Our statute allows one-third of the husband’s estate to be assigned to the wife when she obtains a divorce, and not afterwards. She would have no interest in the nature of dower in her husband’s estate after the divorce is granted, and, if she could enforce the right by independent proceedings after the divorce is granted, great confusion and uncertainty would result. ... If she did not ask and obtain the relief when the decree of divorce was granted to her, the matter became res judicata.”
There is nothing in their deed to their son nor in the contract of separation indicating that any fraud was intended by either of them. It has been more than nine years since she obtained a divorce in the Southern district of Logan county. If she has any right on the ground of fraud practiced upon her at the time she obtained her divorce in the Southern district of Logan county her remedy would be to go into that court and have the decree modified or corrected on the ground of the alleged fraud and not by way of intervention in the Sebastian chancery court, Greenwood district, in an independent suit appellee has brought against their son to cancel the deed. The son was made a party in the independent suit brought by appellee and service was had upon him and no guardian was appointed to represent him, the clear inference being that he has long since attained the age of twenty-one years.
The court was without power to grant the petition of intervention under the facts and circumstances of this case and the decree dismissing the intervention for want of equity is correct.
The judgment is, therefore, affirmed. | [
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Mehaffy, J.
This action was instituted by appellee against the appellant in the Clark circuit court for damages for personal injuries alleged to have been received because of the negligence of appellant.
The appellant is a foreign corporation operating buses in the State of Arkansas. It operated a bus from Little Rock to Texarkana, and on November 1,1937, appellee flagged appellant’s bus just north of Friendship in Hot Spring county, Arkansas. It is alleged that when ap-pellee stepped up to get on the bus his right foot was on the bottom step, he reached up and took hold of the hand rail to pull himself up and his right foot slipped because the appellant, its agents and employees, had negligently and carelessly left a banana peeling on the bottom step which caused appellee’s right foot to slip out from under him. The complaint then described the injuries received by appellee, and prays damages in the sum of $3,000.
The appellant answered denying specifically each allegation in the complaint; denying that appellee Avas injured, and pleaded contributory negligence.
There was a jury trial and verdict and judgment for appellee in the sum of $2,500. The case is here on appeal.
Motion for new trial was filed and overruled. There are a number of assignments of error in the motion for new trial, but the appellant urges only one; that the court erred in refusing to grant its request for a directed verdict on the ground that the evidence .is' not sufficient to sustain the verdict. It is also stated by appellant that the appellee was guilty of contributory negligence.
Appellee’s evidence is to the effect that he lived at Friendship, Hot Spring’ county, about 11 miles from Arkadelphia; he is 31 years of age, raised in Clark county; that on November first he came to Arkadelphia; going from his home to the highway, he flagged appellant’s bus at a place where he had caught the bus many times; followed his usual custom in stopping the bus, paying’ his fare, and coming to Arkádelphia; the bus came by where appellee got on a little after two o ’clock; when he flagged the bus, it pulled up and stopped at the edge of the concrete and he caught hold of the bar with his left hand; the driver opened the door from his seat, and he placed his right foot on the bottom step; when he started to raise his left foot his right foot slipped out from under him, jerked him loose from the bar he was holding and he hit the ground on the end of his back bone and left hip; something slick caused his foot to slip out from under him; this object was on the step; after he fell he got up and got on the bus and went in and sat down; paid his fare to the driver; after he got to Arkadelphia he was suffering so much that he went to see Dr. Bourland; the doctor gave him some rest tablets and liniment and then appellee Avent down to his brother’s; later that day he came back into town and Avent to see a laivyer, after which he Avent home and went to bed. He then describes his injuries and suffering. It is unnecessary, however, to set out this testimony, because it is not contended that the verdict is excessive.
The testimony of Mr. McMahan, who lives at Friendship, shoAvs that Jones came to his house to get on the bus to go to Arkadelphia; it Avas between one and two o ’clock Avhen he came, it was a clear day, and he was with Jones on the north side of the highway. The bus came along about íavo o’clock and Jones walked out and flagged it; the driver opened the door of the bus and as Jones put his foot on the step and started to lift his left foot, his right foot went out from under him; he fell to his left on his hip; after he fell he got up and went on the bus; witness sarv something when Jones’ foot slipped out from under him and went and picked it up; it was about a half of a banana peeling; it was not a fresh peeling, looked like it was about two or three days old; it was dark, or dark broAvn; the steps of this bus were also dark, and the banana peeling was something of the same color. He did not see the banana peeling on the step, but saw something fall on the ground and wanted to knoAv Avhat Jones had stepped on that threw him; he took the banana peeling to the house and kept it until Jones came back and saw what caused him to fall like lie did; showed the banana peeling' to several persons; one of them was Mr. Charlie Garrett.
Charlie W. Garrett testified in substance that he saw appellee and as he stepped up with his right foot on the first step; about the time his left foot was leaving the ground he slipped backwards and fell on his left side; went up to the place where he fell after the bus left and Mr. McMahan showed him a banana peeling he had in his ha-nd.
Dr. 'Bourland, a physician, of Arkadelphia, testified about treating appellee and the extent of his injuries.
The driver of the bus testified that the bus was inspected at Little Rock and there was no banana peeling on the step then. There is no evidence of any inspection of the steps from the time it left Little Rock until ap-pellee’s accident. The driver says that he is in .sole charge of the bus after it leaves Little Rock, and that the bus stopped about five minutes in Malvern, which is several miles from Arkadelphia; that in that five minutes he inspected the tires, but did not give the bus a general inspection; he thinks he would have seen a banana peeling if one had been on the steps.
A number of other witnesses of appellant testified about the inspection of the bus in Little Rock.
"When appellee attempted to get on the bus, he put his right foot on the lower step and slipped on something slick which was on the step. McMahan saw him slip and saw some small object fall from the step to the ground- and immediately went out to where the bus had stopped and picked up a part of a banana peeling.
There is no dispute about the fact that appellee attempted to get on the bus and slipped and fell, although the driver testified that he did not know he had fallen. It is also undisputed that he stepped on something slick which caused him to fall. It is also shown from the evidence that the banana peel fell from the step as the appellee slipped, and that McMahan picked it up; that the step and the banana peeling were practically the same color.
• Appellant calls attention to a number of decisions of this court and other courts, and says: “It is the well settled doctrine in this state'that a jury’s verdict cannot be predicated-upon conjecture and speculation” and that is true. It is not sufficient for a person to show that the defendant may have been guilty of negligence. The evidence must point to the fact that it was-guilty of negligence.- But this does not have to be shown by direct testimony, nor to a.mathematical certainty.
In testing the sufficiency of the evidence to support the verdict of a 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 substantial evidence to support the verdict.
“We have many times held that this court, on appeal, in determining the sufficiency of the evidence, will consider the evidence in the light most favorable to appellee and will indulge all reasonable inferences in favor of the judgment. ’ ’ 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. Baking 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 & Elect. 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., Baldwin, et al, Trustees 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; Loda v. Raines, 193 Ark. 513, 100 S. W. 2d 973.
In a recent case the late Justice Butler, speaking for this court, said: “We agree with the appellants that the record seems to present a case where the preponderance of the evidence is against the verdict. A number of witnesses, who were present at the time of the alleged incident from which the injury is said to have grown, contradict in round terms appellee’s testimony to the effect that no accident happened and the appellee was not injured as he contended. 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.
A case very much like the instant case was decided by this court and we said: “We think, under the rule of ordinary care to prevent injury to passengers, contended for by appellant as the correct rule, that there is ample evidence in the record to sustain the verdict and judgment. All. the evidence tends .to show that appellee slipped and fell upon a banana peel lying either upon the steps or floor of the vestibule. The fact that the porter cleaning up the vestibule and the conductor and “news-butch” failed to observe it a short time before arriving at Wister, does not conclusively establish the fact that the banana peel was not there and had not been there for some time. The jury might have reasonably inferred that it was negligently overlooked by all of them. A part of a banana peel is a small thing, and might easily have escaped the force of the broom in sweeping or the inspection of the “news-butch” and conductor through carelessness on their part, under the rule contended for by appellant.” St. L.-S. F. Ry. Co. v. Daniels, 170 Ark. 346, 280 S. W. 354.
In the case of Mo. & N. A. Ry. Co. v. Johnson, 115 Ark. 448, 171 S. W. 478, we said: “We will not reverse the judgment because of the insufficiency of the evidence, for as we view this evidence, it is not physically impossible that appellee was injured as a result of stepping- into an unblocked frog, although it is highly improbable that the injury was caused in that manner.”
The late Chief Justice Hart, speaking for this court, said: . “In considering whether or not the court should have directed a verdict for the defendant, every fact and inference of fact favorable to the plaintiffs, which the jury might believe to be true, must be accepted as true, and every fact unfavorable to the plaintiffs which the jury might reject as untrue must be rejected.” Hines v. Betts, 146 Ark. 555, 226 S. W. 165.
Under the rules announced by this court in the above eases the judgment must be affirmed. It is the established rule of this court that the jury and not this court determines the facts, and when they have done so, if there is any substantial evidence-to support their finding, it cannot be disturbed by this court.
The judgment is affirmed. | [
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Humphreys, J.
This is an appeal from the chancery court of Poinsett county dismissing a petition in habeas corpus for the custody of a child under fourteen years of age by its mother against its stepmother who had the custody of the child as guardian by appointment of the clerk of the probate court of said county either before or ■after the confirmation of the appointment by the probate court, on the ground that the chancery court was without jurisdiction to try the cause.
The petition alleged that appellant was the mother of the child and after the final separation of appellant and the father of the child she resided in Memphis, Tennessee, and kept the child; that in January, 1933, the father of the child married appellee and early in 1934 he obtained custody of the child who lived with him and appellee in Marked Tree, Poinsett county, Arkansas, until the father died on July 5, 1938, and thereafter with appellee; that on July 8,1938, appellee applied for and was granted letters of guardianship of both the person and property of the child by the probate clerk of said county and the approval of the appointment was set down for hearing in the probate court on August 18, 1938; that this petition for a writ of habeas corpus was filed in the chancery court of said county on the 17th day of August, 1938, and on said date the writ was issued and delivered to the sheriff and served upon appellee on the 18th day of August, 1938, before the time for trial in the prohate court.
In addition to the allegations set out above it was alleged that appellant was a proper person to have the custody of her child and was able to support and care for him. It was also alleged that appellant did not have an adequate remedy at law.
A motion to dismiss the petition was also filed by appellee specifically alleging: “That the probate court of Poinsett county, Arkansas, having appointed defendant herein as guardian of the person and estate of the said minor child, this court has no jurisdiction of the cause of action, if any, stated, in plaintiff’s petition.”
Appellee also filed a response to the petition for a writ of habeas corpus denying that appellant was a proper person to have the custody of her child and attached thereto a copy of the divorce decree showing that the father obtained a divorce from appellant on the ground of adultery.
The only question arising on this appeal is whether the chancery court had jurisdiction of the cause of action. The cause was dismissed for the want of jurisdiction because the matter of the appointment of a guardian for the person of the child was pending in the probate court.
In this state, the law is that a mother after the death of a father, becomes the natural guardian of the children and is entitled to their custody. Section 6220 of Pope’s-Digest is as follows: “In all cases not otherwise provided, for by law, the father while living, and after his death, or when there shall be no lawful father, then the mother, if living, shall be the natural .guardian of their children, and have the custody and care of their persons, education and estates; and, when such estate is not derived from the person acting guardian, such parent shall give security and account as other guardians.”
This section governs the right of a mother to the custody of her child in the event the father dies, whether she is a resident of the state or not, provided of course, the child is within the jurisdiction of the court. In other words, if a father who has the custody of a child in this state, dies, the mother is entitled to the custody thereof, if a fit person, whether she resides in this state or not, under the statute quoted above.
It is true that the probate court has power under § 6202 of Pope’s Digest to appoint guardians for minors and possess the control and superintendence of them, but this does not mean that the probate court may appoint a third party guardian of a minor if the mother under the provisions of § 6220 is entitled to the custody thereof. A nonresident mother would have no right to ask that a probate court appoint her guardian for her child. The probate court is prohibited from appointing a nonresident of this state either a guardian or curator by § 6121 of Pope’s Digest, which reads as follows: “No person other than a resident of this state shall be appointed a guardian or curator, and if,, after his appointment, any guardian or curator remove from this state, his appointment shall be revoked and proceedings had as in other cases of revocation.”
It follows that a nonresident mother could not obtain custody of her child in a probate court. If a nonresident mother is a fit person and has a right to the custody of her child her remedy would be elsewhere and not in the probate court. In the case of Bowles v. Dixon, 32 Ark. 92, a habeas corpus proceeding was filed in the chancery court by the father to recover the custody of his ■ children against Elizabeth E. Bowles. An answer to the . petition was filed by William W. Bowles setting out that he was the lawful and duty appointed guardian of the minors mentioned in the petition, appointed as such by the probate court of Chicot county and as such claimed the custody of said minors, and pleaded that the chancery court had no jurisdiction of the subject matter‘of the suit.
On the trial it was shown that John Dixon was the father of the children and that William Bowles had been appointed guardian of said minor children by the probate court and this court said:
“ Whether the order of the probate court appoint ing appellant guardian of the minors, on his own application, was regular, or erroneous, is not a question before us in this case.
“By statute, as well as by common law, the father (unless incompetent or unfit) is the natural guardian, and entitled to the custody, care and education of his minor children. . . . That the court below, sitting in chancery, had jurisdiction to take the minors from the custody of the appellant, their statute guardian, and deliver them into the custody and care of appellee, the father and natural guardian, we think there can be no well founded doubt.”
Our conclusion is that the chancery court erred in dismissing the petition for writ of habeas corpus for the want of jurisdiction to try the cause. The defense interposed by appellee that she had been appointed guardian of the child by the probate court was no defense to the action of appellant for the custody of her child if' a fit person to have the custody and control thereof. The chancery court should have heard the case on its merits as to whether the mother was a fit person to have the custody and control of her child.
On account of the error indicated, the decree dismissing the petition is reversed and the cause is remanded to the trial court to hear the case on its merits. | [
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Mehaefy, J.
On January 24, 1924, W. D. Wingfield and wife, and B. A. Moody and wife executed and deliv ered a mortgage to the Columbia County Bank on 1,220 acres of land, including the 40 acres involved in this suit, to secure the sum of $8,490.42. This mortgage was recorded January 25,1924V ■■ On January 29,1924, the mortgagors executed and delivered to appellee,' J. N. Bond, a warranty deed to the 40 acres and the same was recorded February 2, 1924.
In October, 1928, suit was filed to foreclose said mortgage and a decree entered in September, 1929, in favor of the Columbia County Bank against the mortgagors for the amount due, with interest, together with lien on said 1,220 acres, subject to a prior lien in favor of one Anne Mower. The land was sold to the Columbia County Bank, a commissioner’s deed was presented and approved by the court on January 30, 1930, and ordered recorded. A scire facias to revive said judgment issued July 18, 1932, and judgment was revived October 27, 1932. Appellee was not made party to any of said proceedings.
The Columbia County Bank was consolidated with the Peoples Bank under the name of Columbia-People.! Bank on December 1, 1931, and this bank became insolvent and was taken in charge by the Bank Commissioner in May, 1934. On April 10, 1936, the State Bank Commissioner sold 1,100 acres, including the 40 acres in .question, to appellant for the sum of $12,500.
This action was instituted on June 18, 1937, by appellants, alleging the facts above set forth and that the lands described included the northwest quarter of the southeast quarter of section 30, township 19 south, range 19 west. It was alleged in the complaint that when the mortgage was executed to the Columbia County Bank it had no knowledge of the deed made to appellee and received no knowledge until June 12, 1937. •
Foreclosure proceedings were begun, as mentioned above, and the land,’ including the 40 acres here involved, was sold by the Commissioner to the Columbia County Bank and said sale and Commissioner’s deed were approved by the court, and the deed recorded in 1930.
The appellants pray that the appellee, J. N. Bond, be given a reasonable time within which to redeem said 40 acres for such amount as may be adjudged to he due on said 40-acre tract; that if J. N. Bond fails to pay to appellant the amount adjudicated within the time allowed, or fails to plead herein whatsoever, the prayer is that the deed to Bond he found inferior and subordinate to appellant’s deed, and that title to said 40 acres he quieted in appellants.
After constructive service, appellee appeared and filed an answer denying the allegations of the complaint and alleging that he purchased the property on J anuary 29, 1924; a warranty deed was executed and delivered to him, and was filed for record on February 2, 1924. He denies that appellants had no actual knowledge of the existence of this deed. Further answering, he alleges that before the deed from Moody and Wingfield was delivered to him, the Columbia County Bank agreed and promised to satisfy the mortgage covering this land, and the justice of the peace making- the deed was advised to hold it until advised from the bank that the mortgage had been satisfied, and said justice of the peace did hold said deed until he was advised by the Columbia County Bank that said mortgage was satisfied and then delivered same to appellee. Appellee alleges that on January 29, 1924, he went into possession of said land, cleared it, built fences and started cultivating same; that he had been in open, exclusive, adverse possession of same at all times since J anuary 29, 1924; had assessed the land for taxes in his name and has at all times since 1924 paid taxes on said land and if the appellants or the ones under whom they claim title ever had any interest in said land, the interest is now barred by the statute of limitations. Appellee prays that complaint of appellants be dismissed for want of equity, and that title of said land be quieted in him as against said appellants.
On April 27,1938, the court entered a decree dismissing appellants’ complaint for want of equity, and quieting-title to the above described 40 acres of land in appellee, J. N. Bond. The case is here on appeal.
The following agreement was entered into:
“By stipulation,, following records of Columbia couxity affecting land in question were introduced in evi- deuce, and it was agreed appellee was not made a party to tbe foreclosure proceedings or any proceedings based thereon.
“Deed of trust by W. D. Wing-field et ux and B. A. Moody et ux to Columbia County Bank to secure $8,-490.42, due December 1,1924, with eight per cent, interest thereon from date until paid; acknowledged by W. D. Wingfield et ux, B. A. Moody et ux, filed for record January 24, 1924, and recorded January 25, 1924.
“Warranty deed executed and delivered by B. A. Moody et ux and W. D. Wingfield et ux to J. N. Bond, dated and acknowledged January 29, 1924, filed for record and recorded February 2, 1924.
“Decree foreclosing mortgage described above; judgment for Columbia County Bank against W. D. Wingfield et ux and B. A. Moody el ux for sum of $7,-884.35 with eight per cent, interest from September 19, 1929, until paid, together with lien on 1,220 acres, subject to prior lien in favor of one Anne Penfield Mower, executrix, in amount of $3,170.61.
“Commissioner’s report of sale based on said decree, wherein the land was sold to Columbia County Bank on December 31, 1929, for sum of $5,920.01, Commissioner’s deed presented and approved on January 30, 1930, and ordered recorded.
“Commissioner’s deed, based on said decree and sale, filed for record January 30, 1930, recorded January 31, 1930.
“Scire Facias to revive said judgment issued July 18, 1932, served on B. A. Moody et ux July 19, 1932, and oil W. D. Wingfield et ux July 27,1932.
“Decree of revival of said judgment dated October 27, 1932.
“Deed from Marion Wasson, State Bank Commissioner, to appellant, Foster-G-rayson Lumber Company, dated and acknowledged April 10, 1936, filed for record December 22, 1936, and recorded December 23, 1936, whereby 1,100 acres, including 40 acres in question, were conveyed for a stated consideration of $11,000.”
The evidence on the part of the appellee was to the effect that the appellee bought the land from Wingfield and Moody and learned at the time he agreed to purchase, that someone had a mortgage on it; the deed and money was placed with W. A. Mallocli; money to bé paid to the grantors when the mortgage was cleared, and the deed to be delivered to witness. The deal was held np for several days until Mr. Moody could state that the mortgage was cleared; after securing the deed appellee took immediate possession, erected buildings thereon, and cleared and fenced the land, putting about 35 acres in cultivation. Mr. Hardaway was in charge for appellee. No one has ever claimed title adverse to appellee prior to the filing of this suit, except that McNeill Avrote him that he, Avitness, Avas paying taxes on 40 acres of the land they OAvned; Avitness told McNeill that he had bought the land and paid for it, Avhereupon McNeill said that he Avould see Moody and get it straightened out, and that is the last he heard of it; does not remember the exact date, but it was about 1924; he paid $400 for the land and did not learn that the Columbia County Bank had a mortgage on the land until McNeill Avrote him that he was paying- taxes on property they OAvned; Moody and Wingfield agreed to get a release from the mortgagee and this was left entirely to Mr. Mal-loch and Mr. Moody; the $400 was to be paid to Moody and Wingfield; he made his first crop on the land about 1927; McNeill wrote him about seven years after he bought the land and he Avent to see him and McNeill told him the money was paid by Mr. Moody and he avou! d straighten it out; appellee has paid taxes oil the land every year since 1924.
W. J. Malloch testified that appellee asked him to hold the money and to pay Moody and Wingfield upon instructions from the bank that the mortgage had been satisfied; he also held the deed. After a feAv days Avitness received a letter from McNeill that the papers Avere satisfied and to go ahead and deliver the deed and money; this was written information and the signature appeared to be McNeill’s. Does not remember the contents except in a general way; it stated substantially that that was his authority to deliver the papers and deeds and turn over the money; does not remember the exact words; arrangements were made betAveen Moody, Bond and the bank and they were to furnish witness with a statement telling him the record was clear before he delivered the deed to Mr. Bond or the money to Mr. Moody; witness knew that McNeill was cashier of the bank.
Mr. Moody, a witness, testified that he and Wing-field sold the land to Bond advising him at the time that it was under mortgage to the Columbia County Bank; witness agreed to see McNeill and try to get the land released from the mortgage; McNeill stated to witness that he would satisfy the mortgage on the land; this occurred a few days after witness sold the land to Bond and witness reported this to appellee; some six or seven years later, when witness was advised that the mortgage had not been satisfied he went to see McNeill and was advised by him to see the president of the bank who stated that he was not interested; Mr. Hutchinson was not president of the bank when he had his first conversation Avith Mc-Neill; told McNeill that Malloch was holding’ the deed and money until they got the title straight; witness voluntarily gave mortgage to the bank to secure a prior indebtedness and did not borrow any additional money at that time; witness' asked McNeill in 1924 about releasing the mortgage, and he said it would be all right to go ahead and he would release the 40 acres; did riot obtain a Avritten release, but thought McNeill’s statement Avould be all that Avas necessary; has never seen the written instrument Mr. Malloch testified about, but he said he received a Avritten statement from McNeill.
■ Mr. Hardaway testified that he rented the land from appellee in 1926, about 25 acres in cultivation, four or five in woods, balance in pasture, all under rail fence; had not known of anyone claiming interest in the land adversely to appellee and has known of no one claiming except appellee; the b^tnk has not had any control over it; the rail fence around the land burned and witness fenced it with wire in 1935 for appellee.
E. L. Waller and Bayless Lindsay testified that they had knoAvn the land for several years and that when ap-pellee bought it it was wild and unimproved and appellee immediately commenced to clear and improve and fence it; nearly all of the land is in cultivation; they do not know anyone, nor have they heard of anyone having any claim to the land adverse to appellee since he bought it; the hank has had nothing to do with farming, clearing, fencing or cultivation of the land.
J. C. McNeill testified that he was cashier of the Columbia County Bank in 1924 and until the bank was consolidated with the Peoples Bank in 1932; he recalls the Columbia County Bank obtained a mortgage from Wing-field and Moody on several hundred acres of land in 1924; that witness wrote Moody in 1930 that if $400 Avas paid to the bank it would release the 40 acres, and he said this was the first time the board eAmr considered the release of the 40 acres; nothing had been paid for'the release, and he denied writing Malloch and stated he would not have had any authority without a resolution of the board. In 1930 he got authority from the board of directors to accept $400.
A. P. Walker, county and probate clerk, testified that the land in question was assessed to Columbia County Bank and also to appellee in the years 1930 and 1931; the bank paid taxes in 1933; appellee appears to have assessed the land every year, but he has no record showing he paid the taxes.
McNeill then introduced a letter that he had written to Moody, dated July 29, 1930. He also testified that he did not remember talking to appellee and that Malloch was mistaken.and he could not recall anyone to whom he wrote in 1924 unless he had a copy of the letter; did not write such a letter to Malloch; does not recall talking to appellee and does not know why appellee was not included in the foreclosure suit.
The appellants insist that the bank was not charged with any notice of appellee’s deed because it was made subsequent to the mortgage, and that an agreement to satisfy a mortgage must be shown by clear, satisfactory, and convincing evidence. They call attention first to Riley v. Atherton, 185 Ark. 425, 47 S. W. 2d 568.
In the case referred to the court quoted from 19 R. C. L. that an agreement to release the mortgagor from his personal liability must be established by clear and convincing evidence, for the effect thereof is to set aside the written contract. That is not the question here. The parol release was not to release the mortgagor from any liability at all, but all of the evidence shows that the ap-pellee here was to pay the $400 when the mortgage on this 40 acres was released, and there was no agreement to release the mortgagor from any liability.
But, as argued by the appellants, the appellee claims not only that there was an agreement to release the 40 acres from the mortgage, but that appellee claimed title also by adverse possession. Appellants cite and rely on First State Bank of Eureka Springs v. Cook, 192 Ark. 213, 96 S. W. 2d 510. The court said in that case: “A purchaser from the mortgagor stands in no better position than the mortgagor himself as to gaining title by possession and lapse of time, if the mortgage be recorded. The record is notice of the mortgage to a subsequent purchaser; and the mere fact that he has had actual possession under his purchase for the statute period of limitation is no bar to a foreclosure of the mortgage.”
In the instant case the preponderance of the. evidence shows that arrangement had been made with the bank for it to release the mortgage, and not until that agreement Avas reached was the deed turned over to ap-pellee and his money paid to the grantors. "When' this Avas done, and not until then, appellee took possession, cleared and cultivated the land, paid the taxes, and we think the overAvhelming Aveight of evidence is that this Avas all done with the understanding that the 40 acres had been released from the mortgage.
It is true the cashier of the bank testifies that he does not recall the conversations with appellee and others, but they testify positively that the mortgage had been satisfied. It Avould be quite unusual for the bank to have a mortgage on this property and permit anyone to occupy it, cultivate and pay taxes on it the length of time appellee did, if there had been no agreement to release.
Equity cases aré tried here de novo, but unless the decree of the chancellor is against the preponderance of the • eAÚdence, we do not reverse.
In the instant case we think the decree of the chancellor is supported by the preponderance of the evidence, and the decree is therefore affirmed. | [
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Smith, J.
Judgment was. rendered in the court below upon an insurance policy for the amount thereof. Death by suicide was a risk not insured against, 'and the sole question presented on this' appeal is whether the insured had committed suicide. There is no substantial conflict in the testimony in this case. It was all given by the family and friends of the insured, and is to the following effect: Insured had been an employee of a railroad company for a number of years. His health failed in August, 1935, and he quit work for a while for treatment, but returned to work for the railroad com pany in January, 1936, when, on account of continued sickness, he gave up his job. He did no work after that time, and was worried and nervous. His section foreman testified: “Well, he was worrying about his financial condition and being out of work. He was worried quite a bit about that.” This foreman had told the insured that he would have to go to the hospital, and that he would not be able to work any longer, and insured did no work after that time. Shortly thereafter, and a few days before his death, insured was taken to the State Hospital for Nervous Diseases for examination. Nothing appears in the record as to the result of, or the report upon, this examination.
Oh May 12, 1936, insured and his wife, the beneficiary of the policy, went to visit his daughter in Benton, Arkansas, and arrived there about two o’clock in the afternoon. Insured went to the room assigned to him in his daughter’s house, and remained there. His wife left and went to town. After his wife departed insured requested his daughter to get him a drink of water, and she went to the well a short distance from the house to do so, when returning with the water, she heard a noise in the house, and 'was told by a passerby that it was a gun shot. She hurried into the house, and found her father in a dying condition, lying on the floor, with his head resting against the wall,' and a discharged pistol lying on the floor a short distance from his right hand and about two feet from his body. The insured lived only a short time and did not regain consciousness. The pistol belonged to the daughter of insured, and had been left on a shelf in a comer of the room, which was about three feet above the floor. The pistol was easy on the trigger, according to the daughter’s testimony, and would go off from a jar or the slightest touch of the trigger.
It may be. stated with entire certainty that the insured killed himself, either accidentally or intentionally. The thought that he may have been murdered has not been suggested, and it is inconceivable that-any member of the jury should have entertained even a suspicion that the devoted daughter had killed her father, and no one else had the opportunity to do so;
How, then, did the insured kill himself? Appellee makes this answer: “It is as reasonable to assume that deceased was examining the pistol, when it was acci-dently discharged, or that he was overcome by one of his falling spells (to which he was subject), and in attempting to steady himself by grabbing at the shelf on which the pistol lay, caused its accidental discharge, as to assume that he deliberately placed the gun to his head and took his own life.” .
We do not think these theories can be accepted with any show of reason, or that they would be seriously considered, if this were not a controversy between a bereaved widow and an insurance company. The undisputed testimony is to the effect that deceased was not examining the pistol when his daughter left him to get the drink of water, and the fatal shot was fired during her short absence. The daughter testified that the pistol was “on a shelf in a corner of the room he was in,” but the undisputed testimony is to the effect that the body was not found near the shelf nor in that corner of the room. The coroner testified that appellee had stated at the inquest that insured had been -seen weeping on the day of his death, and while that testimony is denied, there appears to be no question but that insured was in the depths of utter despair on the-very day of his death, on account of his physical and financial condition.
When the daughter returned hurriedly from her mission for her father, she found him lying on the floor, with his head resting against the wall, and the pistol lying on the floor a' short distance from his right hand, which was outstretched. There was a mirror hanging on the wall to the left of the door, and the bottom of the mirror was about five feet above the floor, and to the right of the mirror were some splotches on the wall that looked like blood. Insured’s feet were some two or three feet from this wall and almost directly in front of the mirror, and his body was lying at an ángle out from the mirror.
The coroner testified that “The wound was practically halfway between the ear line and the top of the head, just a fraction of an inch to the rear of the median line going to the ear.” He further testified that he probed the wound, and that the bullet was still in deceased’s head, and had ranged downward. He testified also that there was evidence of powder burns on the deceased’s head. Appellee’s brief concedes the truth of these facts, but states that “There were very few powder burns around the wound.” The significant fact is not the extent of the powder burns, but, rather, the fact that, there were powder burns above or behind the ear at the place where the bullet entered.
. It must be conceded that we have a number of cases, of very tenuous character, affirming verdicts apparently finding that the insured had not committed suicide, in which the evidence greatly preponderated to the contrary. '• But we have always recognized the fact that the legal sufficiency of the testimony to support such a verdict was a question of law for the court. Catlett v. St. Louis, I. M. & So. Ry. Co., 57 Ark. 461, 21 S. W. 1062, 38 Am. St. Rep. 254.
In the following cases the jury had found that the insured had not committed suicide: Industrial Mutual Indemnity Co. v. Watt, 95 Ark. 456, 130 S. W. 532; New York Life Ins. Co. v. Watters, 154 Ark. 569, 243 S. W. 831; Ætna Life Ins. Co. v. Alsobrook, 175 Ark. 523, 299 S. W. 743; Fidelity Mutual Life Ins. Co. v. Wilson, 175 Ark. 1094, 2 S. W. 2d 80; Home Life Ins. Co. v. Miller, 182 Ark. 901, 33 S. W. 2d 1102.
We reversed each of those cases, for the reason that, in our opinion, there was no reasonable conclusion which could be drawn from the testimony recited in those opinions except that death had been caused by suicide, notwithstanding the verdicts of the jury to the. contrary. A comparison of the facts stated in those opinions — which we shall not pause to make — will show that in none of them was it more certain that the insured had committed suicide than in the instant case. It is, therefore, our duty, when, in our opinion, there is no reasonable view of the testimony except that the insured had committed suicide, to reverse the judgment pronounced upon the contrary finding by the jury.
The cases above cited and others on the subject have recognized the case of Grand Lodge A. O. U. W. v. Banis ter, 80 Ark. 190, 96 S. W. 742, as our leading case on the subject, and all subsequent cases have professed to follow the principles of law there announced, in the application of which some judgments have been affirmed, while others have been reversed. That case and all others announce the proposition' — which we here reaffirm — that ‘ ‘ There is a presumption against suicide or death by any other unlawful act, and this presumption arises even when it is shown by proof that death was self-inflicted— it is presumed to have been accidental until the contrary is made to appear.” But no case has ever held that this presumption was conclusive and might not be overcome by testimony. Nor has any case ever held that the testimony must be that of eye-witnesses. It is, on the contrary, a matter of common knowledge that suicide is usually committed with'as much secrecy as possible, and could be but rarely shown, except by proof of the facts and circumstances attending its commission.
In the case of Fidelity Mutual Life Ins. Co. v. Wilson, supra, we quoted with approval from 14 R. C. L. 1236-7 the following statement- of law on this subject: “The-presumption against suicide will stand and be decisive of the case until overcome by testimony which shall outweigh the presumption.”
We think the undisputed testimony and the physical -facts outweigh this presumption and leave no reasonable doubt but that the insured committed suicide. -
The judgment must, therefore, be reversed, and as the cause appears to have been fully developed, it must be dismissed. It is so ordered.
Humphreys, Mehaffy and Baker, JJ., dissent. | [
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MIKE MURPHY, Judge
1 ¶ A Pulaski County jury convicted appellant Melissa, Stearns of first-degree murder in the January 24, 2014 stabbing death of Herschel Johnson. She was sentenced to thirty-five years in the Arkansas Department of Correction. Stearns’s sole argument on appeal challenges the sufficiency of the evidence supporting her conviction. We affirm.
Jimmy James testified that on the day of the stabbing, he was at the mobile home where Stearns had been living with Johnson. He explained that Stearns and Johnson had been arguing and that they had asked him to take Stearns to the store, which he did. Upon their return, Stearns and Johnson continued to argue. James testified that he went to use the bathroom and that by the time he came put, Stearns had stabbed Johnson. He explained that he heard Johnson call Stearns a “fucking whore” and had told her to get out. James said he could hear Stearns go to the kitchen and run back to Johnson saying, “Call me a whore again. I dare you. I dare you.” After hearing a scuffle, James came out of the bathroom and |2saw the blood on the back of Johnson’s shirt. He explained that it appeared Stearns had run out of - the room to get rid of the weapon and that she had come back asking, “What happened here?”
James explained that Johnson was coherent and said he was going to ’ call the police and “put her in jail,” so James decided to go home. Stearns followed James to his car and demanded he take her to her friend'Josh Strong’s house. James did so. After dropping Stearns off, James stopped by Johnson’s home to check on him. According to James, about three minutes had elapsed. He testified that when he arrived, Johnson was intoxicated, but the bleeding had stopped and the wound “didn’t look life threatening.” Johnson told him he would get another beer and then call the police. James had a warrant pending, so he did' not want to be around when the police-arrived. Ultimately, the following day, Johnson’s brother, Roger Johnson, found him deceased in his bed and called 911. ' '
Christy Hudson, who lived ,in the same community, went to check on Johnson at his home when she was told that paramedics were outside his mobile home. The detective asked Hudson if she knew where Stearns was. Suspecting that Stearns was at Strong’s home, Hudson went to get her. When Hudson found Stearns and told her Johnson had passed away. Steams responded, “Oh, my God, who would .hurt Herschel?” Hudson took Stearns back to the scene so she could talk to the detective.
Strong explained that Stearns was living with Johnson because she did not have a place to stay at the time and that their roommate relationship was platonic. When Stearns went to him after the incident she was' hysterical, and Strong said that Stearns told him that she had “nicked” Johnson with a knife and that she was worried she had hurt him. Strong Rsaid that Stearns did not say anything about Johnson being violent toward her. The State then introduced a text Stearns had sent to Strong on the day of the incident that said, “About to kill this motherfucker.”
Tiffany Smith, who was incarcerated with Stearns at the Pulaski County jail, testified that Stearns opened up to her about the stabbing. Smith explained that Stearns first told her that she had been cutting up apples in the kitchen and that Johnson had fallen on the knife. Eventually, Stearns told Smith that her biggest regret was not throwing the knife away. Instead, Stearns had washed off the blood and hidden the knife under the refrigerator. Smith testified that Stearns also regretted that she had not changed Johnson’s shirt before she put a jacket on him after the incident. Lastly, Smith explained that Stearns had asked her to call Strong and tell him to delete all his text messages from Stearns, specifically, the one that said, “About to kill this motherfucker.”
Detective Jeff Allison testified that Stearns originally denied being at the home when Johnson got hurt. She then changed her story but said that she had “barely swung” the knife at Johnson and that he had been so mean toward her. She told Allison it was never her intention to hurt him; she just “wanted him to take [her] more serious.”
Dr. Jennifer Forsythe performed the autopsy on Johnson. She testified that the wound was consistent with the size of the knife found under the refrigerator. Dr. Forsythe explained that the knife struck Johnson’s aorta. She said that the knife went halfway through his body and that the length of the wound was 1.8 centimeters. She testified that the stab wound was “100 percent cause of death” and that the wound was “not an insignificant nicking of the body”; rather, it was a “fatal stab wound.”
1¿Steams contends that the incident was an accident and not intentional, and she filed this timely appeal.
On appeal, a motion for directed verdict is treated as a challenge to the sufficiency of the evidence. See Reynolds v. State, 2016 Ark. 214, at 3, 492 S.W.3d 491, 494. This court views the evidence in the light most favorable to the State and affirms if there is substantial evidence to support the verdict. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. This court does not weigh the evidence presented at trial or assess the credibility of the witnesses, because those are matters for the fact-finder. Id. The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. Only evidence supporting the verdict will be considered. Leaks v. State, 345 Ark. 182, 185, 45 S.W.3d 363, 365 (2001).
On appeal, Stearns contends that the evidence adduced at trial was insufficient to convict her of first-degree murder; specifically, she asserts that the evidence of “purposeful conduct” was not substantial. Stearns argues that the proof came closer to that necessary to reach a conviction for second-degree murder or manslaughter.
|sA person commits murder in the first degree if, with the purpose of causing the death of another person, the person causes the death of another person. Ark. Code Ann. § 5-10-102(a)(2). A person acts purposely with respect to his or her conduct or a result of his or her conduct when it is the person’s conscious object to engage in conduct of that nature or to cause the result. Ark. Code Ann. § 5-2-202. A criminal defendant’s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. See Leaks, 345 Ark. at 182, 45 S.W.3d at 365. It is axiomatic that one is presumed to intend the natural and probable consequences of his or her actions. Thompson v. State, 338 Ark. 564, 569, 999 S.W.2d 192, 195 (1999). Furthermore, the intent necessary for first-degree murder may be inferred from the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds. Id.
Steams covered up and lied about her involvement in the murder. After stabbing Johnson, Stearns immediately started trying to cover up evidence when she hid the knife and returned asking James, “What happened here?” Stearns also lied to the police during her first interview about her involvement in the killing. This court has held that lying about a crime can indicate a consciousness of guilt, and a jury may properly consider an attempt to cover up one’s connection to a crime as proof of a purposeful mental state. Leaks, 345 Ark. at 186, 45 S.W.3d at 366. Furthermore, the jury could infer that Stearns was angry with Johnson, as James had testified to their arguing immediately prior to the stabbing. Contrary to Stearns’s statement to police that she “barely swung” the knife, the medical examiner testified that the blade had gone halfway through Johnson’s body. These facts point to purposeful conduct.
| (¡Under these circumstances, we hold that the jury was presented with substantial evidence of Steams’s intent, and we affirm.
Affirmed.
Virden and Glover, JJ., agree.
. A person commits murder in the second degree if the person knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life. Ark. Code Ann. § 5-10-103. A person commits manslaughter if the person recklessly causes the death of another person. Ark. Code Ann. § 5-10-104, | [
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Humphreys, J.
Appellee brought suit against appellants in the circuit court of Clay county to recover damages in the sum of $740, for killing- one of her-mules, injuring another and tearing up h.er wagon and harness at “■Bare Crossing” east of Piggott through the alleged negligence of their servants in operating one of their trains. The alleged negligence consisted in a failure to give warning of the approach of the train, to stop after discovering the peril of the property and in running the train at a reckless speed.
Appellant, St. Louis-San Francisco Bailroad Company, filed a motion stating it was an improper party to the action because at the time of the accrual thereof it was neither in the possession of or operating its property, but that the same was in the possession and .being-operated by trustees appointed by the U. S. District Court, Eastern Division, of the Eastern District of Missouri and entered its appearance in the cause for the sole purpose of presenting the motion. The court overruled the motion and then appellants, reserving its exceptions to the action of the court in denying a motion to dismiss, answered, denying all allegations of the complaint, and interposing the further defense, that if the property was damaged it was because of the contributory negligence of the party in charge thereof negligently driving same on appellant’s tracks.
The cause was submitted to a jury upon the evidence introduced and instructions of the court resulting in a verdict and judgment against appellants for $325, from which is this appeal.
If any error was committed by the court in refusing to dismiss the suit against the St. Louis-San Francisco Railway Company, the exceptions thereto were not preserved in the motion for a new trial and same is not before us for determination.
The record reflects, without dispute, that the view of the servants operating* the train was obstructed so they could not. see travelers on the highway, except through a narrow opening*, by a levee which appellants permitted an improvement district to construct across its right-of-way up to its ties on both sides of the track and on top of which, weeds have been permitted to grow up; that no post was erected to warn persons in charge of the train that a crossing* was there and that the train was traveling at the rate of 35 miles an hour at the time of the collision.
The testimony is conflicting* as to whether the statutory signals by the trainmen were given for the time and in the manner required by § 11135 of Pope’s Digest.
The trainmen testified that they gave the signals, but Marvin Hinkle, who was 400 feet from the crossing, testified that the first signal given was within 360 feet of the crossing and Nick Moody, who was driving the team, testified that the train was within 60 or 75 feet from the crossing when it first whistled and that he was within 16 or 17 feet of the track and that although he tried to stop the team he could not do so before the train struck the team and wagon.
Mr. Story, the engineer, testified that had he been running the train at 15 or 20 miles an hour when he approached the crossing instead of 35 miles an hour he could have stopped the train before he ran over the team.
This court said in the case of Davis v. Scott, 151 Ark. 34, 235 S. W. 407, that: “Deceased knew the train was approaching, and, if he looked toward it after it came in sight, he may have been misled by the excessive speed, and on that account failed to properly judge his chance of getting across before the engine reached him. But, whether the deceased actually looked at the approaching train or not it is fairly inferable that if the train had been under control at a lower rate of speed, the engineer, by throwing’ on the emergency, might have slowed down the train so that deceased could have gotten across in safety.”
We think in view of the levee that obstructed the vision of the trainmen as well as travelers on the highway the rate of speed at which the train was traveling was a question which the jury might consider in determining whether appellants were negligent in operating same; and also that the jury might take into account in arriving at whether appellants were negligent the circumstance that it permitted a levee to be constructed across its right-of-way so as to prevent the trainmen from observing travelers on the highway and so as to prevent travelers from seeing trains approaching the crossing.
In addition to the physical conditions at and near the crossing for which appellants were responsible, the jury were, of course, warranted in taking into consideration whether signals were given in determining whether appellants were negligently operating the train when it ran over the team.
The killing of and injury to the property being admitted the law presumes appellants were negligent and the burden rested upon them to show they were not negligent and to show that the driver was guilty of contributory negligence. They have not met the burden by the undisputed evidence, and we cannot say as a matter of law that the court erred in refusing to instruct a verdict for them.
The instruction on the lookout statute, Pope’s Digest, § 11144, was not abstract and erroneous for the reason that the engineer testified that he could have avoided the injury had he been running at a speed of 15 or 20 miles an hour, and the' jury may have found or would have been warranted in finding that he was running at an excessive rate of speed in view of the physical conditions at and near the crossing.
Appellant contends that the verdict is excessive, but according to the evidence the actual value of the mule killed, the damage to the one injured and the damage to the wagon and harness amounted to as much or more than $325, for which a verdict was returned.
No error appearing, the judgment is affirmed. | [
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Johnson, C. J.
In briefs but one ground is argued and insisted upon by appellant for reversal. Under settled rules of this court all other alleged errors are abandoned. Stevens v. Shull, 179 Ark. 766, 19 S. W. (2d) 1018.
The ground insisted upon and argued in briefs is that the trial court erred in refusing to direct the jury to return a verdict in favor of appellant; or that the testimony is insufficient to support the verdict.
In testing the legal sufficiency of the testimony, we must view it in the light most favorable to appellee. McGehee & Co. v. Fuller, 169 Ark. 920, 277 S. W. 39; Missouri Pacific Rd. Co. v. Nichols, 170 Ark. 1193, 278 S. W. 648; Wisconsin & Arkansas Lbr. Co. v. Hall, 170 Ark. 576, 280 S. W. 363.
The testimony, when viewed in the light most favorable to appellee in the instant case, is to the following effect:
Appellee, R. H. Harding, is the father, administrator and next of kin of Willard Harding, deceased. On November 25, 1931, Willard Harding, deceased, a boy about 17 years of age, was riding upon one of appellant’s freight trains, which he had boarded at Hoxie in this State. On the train with the deceased was one Oliver Jobe. The freight train was going from Hoxie to North Little Rock and passed through Austin, a station on appellant’s line of railroad, about 9. p. m. When the train begun pulling out of Austin, a brakeman approached deceased and Oliver Jobe and demanded that they get off the train. At this time the train was running about 15 miles per hour. Oliver Jobe, instead of obeying the demand of the brakeman, proceeded down the moving train of cars toward the engine, but the deceased, when last seen by Jobe, remained at the place where he was when first approached by the brakeman. Oliver Jobe testified that Willard Harding stated to the brakeman that he did not want to get off the train because it was running too fast. Just before 11 p. m. of the same night, appellant operated a passenger train over and upon its tracks upon Avhich deceased was found a few minutes later. Deceased Avas found immediately after 11 p. mv having attracted the attention of people who resided in the vicinity by his cries, lying upon the south track of appellant’s railroad; both his legs and one arm were severed. In response to questions asked by attendants, deceased stated that he was knocked off the train. This declaration of deceased Avas elicited by attorneys for appellant on cross-examination of witnesses. One witness testified, upon examination, he found imprints, made by one’s feet, knees or his head, at or near the ends of the cross ties and near the point where deceased was found.
This testimony was amply sufficient to make out a prima facie case in behalf of appellee, and against appellant. St. Louis, Iron Mountain Railroad Co. v. Gibson, 107 Ark. 431, 155 S. W. 510.
In addition to what has been said, the jury was fully Avarranted in finding that the deceased was knocked off the freight train by an employee of appellant, or that he was forced by such employee to disembark from the freight train while it was moving at a dangerous rate of speed. Either of these conclusions would be amply sufficient to support a finding of negligence.
The declarations of deceased as to the cause of his injury were elicited by attorneys for appellant, therefore such declarations became competent and relevant testimony, notAvithstanding such declarations were neither dying declarations nor a part of the res gestae. The rule is stated thus in 64 C. J., § 242 (2d), page 230: “Hearsay evidence, admitted without objection, should be considered and given its natural probative effect, subject to any infirmative suggestion due to its inherent weakness, and may establish a material .fact in issue, and sustain a verdict or judgment.”
No reversible error appearing, the judgment is affirmed. | [
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Hart, C. J.
Fletcher Coe has appealed from a judgment of conviction against him for the statutory crime of keeping in his possession an unregistered still.
The first assignment of error is that the evidence is not legally sufficient to warrant the verdict. According to the evidence for the State, the sheriff and his posse, upon information, located a copper still in Miller County» Arkansas, about three o’clock in the morning, during the latter part of October, 19'27. The still was complete and ready for operation, but no one was at it. The officers hid, and remained near the still until after daylight. They saw the defendant and Fred Lolla approaching, with a horse upon which were two sacks of chops and a sack of sugar. Several barrels of mash were already at the still. They filled up the copper pot with mash, and lighted the gasoline burner with which the still was operated. After they had been working around the still for about forty-five mi-nutes, the officers arrested the defendant and Lolla. Whiskey was running out of the still at the time. The defendant and his companion claimed that they were out hunting cows, and came upon the still by chance, and so testified at the trial. The evidence for the State, if believed by the jury, was legally sufficient to warrant a'verdict of guilty. Lacefield v. State, 171 Ark. 655, 286 S. W. 818; Conley v. State, 176 Ark. 654, 3 S. W. (2d) 980; Miller and Gregson v. State, 171 Ark. 756, 286 S. W. 949; Vincent v. State, 171 Ark. 759, 286 S. W. 944; and Francis v. State, 177 Ark. 401, 7 S. W. (2d) 769.
The next assignment of error is that the court erred in refusing to instruct the jury that the testimony given against the defendant “must be of such a character as to exclude every reasonable hypothesis save his guilt.” The conviction did not rest upon circumstantial evi dence. The testimony of the witnesses for the State was direct and positive as to the matters they saw. Hence the instruction requested was not predicated upon any facts proved at the trial, and the court properly refused to give it. Vincent v. State, 171 Ark. 759, 286 S. W. 944.
The next assignment of error is that the court refused to give an instruction asked by the defendant, to the effect that the mere presence of the defendant at the sitill should not he considered against him, unless other testimony connected him with the possession of the still. It was the theory of the defendant that he was out hunting cows, and came upon the still by chance, and did not have or keep it in his possession in violation of the statute. The court instructed the jury that, if it should find that the defendant was at the still by chance, and had nothing to do with the operation or nse of it, he would not be guilty. It was not error to refuse the instruction asked by the defendant when the same subject was covered by an instruction given by the court. Rosslot v. State, 162 Ark. 241, 258 S. W. 348; and Burns v. State, ante, p. 1.
We find no reversible error in the record, and the judgment must be affirmed. | [
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Kirby, J.,
(after stating the facts). Appellant insists that the court erred in striking out the testimony of its salesman of the information received about the ownership of the Southern Produce Company, upon inquiry from the First National Bank of Helena, and also that the undisputed testimony entitled it to a judgment for the amount of its claim.
In Herman Kahn Co. v. Bowden, 80 Ark. 30, 96 S. W. 129, 10 Ann. Cas. 132, this court said:
“A person who holds himself out as a partner of a firm is estopped to deny snch representation, not only as to those as to whom the representation was directly made, but as to all others who had knowledge of such holding out, and in reliance thereon sold goods to the firm, provided they exercised due diligence in ascertaining the facts. The cases go even further, and hold that, if one has knowledge that he is being held out to the world as a partner, and fails to contradict the report, he may become liable to those crediting the firm on that account. Campbell v. Hastings, 29 Ark. 513; Fletcher v. Pullen, 70 Md. 205, 14 Am. St. Rep. 355. It follows therefore, for much stronger reasons, that, if the party himself puts out the report that he is a partner, he will be liable to all those selling goods to the firm on the faith and credit of such report.”
The undisputed testimony shows, and appellee admits, that she signed the financial statements, reciting in one of them that she was the owner of the Southern Produce 'Company and in the other two that it was owned by herself and R. M. Rider; and, although it is true that she stated this was done without reading the statements and to help her husband in the business, it necessarily was a report put out by her that she was a partner in the business or owner of it, making her liable as such to those selling goods to the firm on the faith and credit of the report. These statements, it is true, were not made directly to appellant company, but it had knowledge thereof, of appellee’s holding herself out as a partner of the firm, and the salesman of appellant company stated that the goods were sold to appellee’s firm or company in reliance thereon, after he had made inquiry of the First National Bank about the rating and ownership of the Southern Produce Company, and upon .being told by its vice president, Mr. Faulkner, now deceased, that appellee, Mrs. R. M. Rider, was a partner in the company, and that it was a responsible concern. The court erred in striking out this testimony. Appellant had the right to show such inquiry made in ascertainment of the facts and the exercise of diligence in the matter; and, since he inquired of the bank and was given the information furnished by appellee, it could make no difference that the vice president of the bank, who supplied the information, had since died.
Instruction No. 3 was correct as requested, including the words stricken out by the court, but it was more favorable to appellant, as given, than it was entitled to, and could not have had any prejudicial effect, but for the erroneous rejection of the testimony relating to the inquiry made at the bank.
Instruction No. 4 should also have been given. The undisputed testimony shows that the amount sued for was the correct balance due for the flour sold, and the testimony is virtually undisputed that appellee put out the report that she was a partner in the Southern Produce Company; that plaintiff made diligent inquiry about the matter, and sold the goods to that company in reliance upon the representations contained in the report. Such being the case, the verdict was without substantial evidence to support it, and the judgment must be reversed, and the cause remanded for a new trial. It is so ordered. | [
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Butler, J.
Robert Knight, the appellant, was indicted by the grand jury of Jefferson County on a charge of grand larceny 'committed, as it is said,- by stealing an overcoat, the property of J. F. Mullins. He was tried upon this indictment, convicted, and sentenced to serve one year in the State Penitentiary. He seeks to reverse the verdict and judgment, first, because of the court’s refusal at the close of the testimony to direct a verdict of not g’uilty on the theory that, if any crime was committed, it was false pretenses and not larceny; and second, for .error of the court in giving the following instruction:
“If you believe from the evidence in this case beyond a reasonable doubt that the defendant, in Jefferson County, Arkansas, and within three years prior to the filing of the indictment, by fraudulent artifice obtained from Wilks & Webb an overcoat of the value of more than $10 and the property of J. F. Mullins, and that at the time the property was obtained you also believe from the evidence beyond a reasonable doubt that he obtained it and carried it away with the felonious intent to steal it, you will convict him of the crime of grand larceny as charged in the indictment.”
Wilks & Webb, a firm engaged in the clothes cleaning business in Pine Bluff, had an overcoat of J. F. Mullins in their possession for the purpose of cleaning and pressing it. Mrs. Lower.y, who was employed by the cleaners, testified that appellant called for some clothing which he had previously left at the cleaning shop' and at the same time asked for and obtained the overcoat of J. F. Mullins, paid the charges on Mullins ’ coat, and left the shop with it. Appellant is a negro man, and the first time the witness ever saw him was when he called for the Mullins overcoat, but she identified him as the same person as the one Robert Knight, who had been indicted by the grand jury.
W. M. Wilks, a member of the clothes cleaning firm, stated that he was present when Robert Knight came to his shop and obtained the Mullins overcoat; that he knew Knight when he saw him, and that Knight, at the time he obtained the coat, paid the charges, and asked for the ticket so that he (Knight) would know what to collect for it from Mr. Mullins. According to the witness, Mullins ’ overcoat was worth about $50. Witness stated positively that it was the defendant who had got the coat.
Mrs. Mullins, the wife of 'J. F. Mullins, testified that she had sent her husband’s overcoat to the cleaner; that she did not know the defendant, Robert Knight, and did not send him for the coat. At the time the coat was sent to the cleaner and taken away by the defendant, Mullins was away from home.
The defendant, testifying in his own behalf, stated that he did not get the overcoat from the cleaning shop but that he sent another young negro to the shop for the clothing that he, himself, had left there, and that this boy brought him the clothing he had been sent for, but no other. Defendant stated that he did not sign for the clothing, as testified to by Mrs. Lowery, and that he could neither read nor write; that he did not know either Mr. or Mrs. Mullins.
The defendant contends that the evidence was not sufficient to identify him as the person who had obtained the overcoat, and, if it was sufficient for that purpose, it was insufficient to establish the crime of larceny. To sustain this contention he cites the case of Haley v. State, 49 Ark. 147, 4 S. W. 746, in which case the following- language was used: “Where by fraud, conspiracy, or artifice the possession is obtained with felonious design and title still remains in the owner, larceny is established. Where title, as well as possession, is absolutely parted with, the crime is false pretense.” We think that an application of the law stated in the case cited to the facts proved in the case at bar establishes the correctness of the court’s refusal to direct a verdict for the defendant and warrants the giving of the instruction set out above. The ownership of the property stolen was laid by the allegations of the indictment in J. F. Mullins, and Wilks & Webb were entitled only to the possession and control of the overcoat for the purpose for which it was deposited with them, and could not have parted with the ownership of Mullins. Moreover, the evidence shows that they did not intend, by giving the defendant the coat, to invest him with its ownership, bnt thought, by reason of the false artifice of defendant, that he had been constituted the owner’s agent for the purpose of getting the coat and conveying it to the owner. It is clear therefore that the title remained in J. F. Mullins and possession of the coat was obtained by the defendant through artifice with a felonious design and that it was his intention to carry away and steal it.
The defendant cites a number of other decisions of this court in line with the case of Haley v. State, supra, which, as stated in our application of that case to the evidence in this case, are clearly against his contention. The defendant went to the cleaning and pressing shop and obtained therefrom the overcoat by falsely pretending that he had been sent for it by Mrs. Mullins, the wife of the owner of the coat. Wilks & Webb, the cleaners, had no authority to deliver the coat to defendant and no property passed to him, but the mere possession, feloni-ously obtained, which is the essence of the crime of larceny. It follows that the trial court correctly declared the law in giving the instruction objected to, and the verdict of the jury was justified under the evidence adduced on the part of the State. The judgment is therefore affirmed. | [
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G-riffiN Smith, C. J.
Petitioner asks that a temporary writ of prohibition be made permanent.
In ail action brought in Hot Spring Circuit Court, John Hellen alleged he was a resident of the city of Hot Spring’s, in Garland county; that the defendant, Dixie Motor Coach Corporation, is a foreign corporation authorized to do business in Arkansas; that plaintiff purchased a bus ticket at defendant’s station in Hot Springs good for transportation from that city to Pitman’s Service Station; that he was unfamiliar with the highways and did not know when the bus arrived at the station; that Hubbard, in charge of the bus, failed to call the destination, but proceeded to a point four and one-half miles beyond, then demanded fifteen cents as additional fare; that such amount was paid; that concurrent with payment plaintiff asked how much farther it was to the station and was informed by Hubbard it had been passed; that he (plaintiff) asked to be taken back to the station, whereupon “. . . [Hubbard], with great violence and force, grabbed plaintiff by the shirt, tearing it, and at the same time kicked the plaintiff in the side, injuring him, . . . and by use of great force put this plaintiff off the bus.’’
Summons was issued by the clerk of Hot Spring Circuit Court. It was served on Virgil East, “. . . driver of coach, [in] Hot Spring county.”
The court overruled a motion to quash. Defendant procured temporary prohibition.
'Was the service effective?
Act 98, approved April'1, 1909, provides a method for obtaining service on all foreign and domestic corporations which maintain a branch office or other place of business in any of the counties of this state. Plaintiff says the attempted service was had under authority of Act No. 70, which became a law February 26, 1935, without the Governor’s approval.
Section 2 of Act 70 provides that it shall not he so construed as to repeal existing venue or service statutes —except as to conflicts — the intent being to' afford . . additional methods of obtaining service of summons as against the owners and operators of motor buses, coaches and trucks.” Section 3 is the emergency clause.
What necessity induced the General Assembly to provide additional methods of obtaining service?
Act No. 98 of 1909 permitted summons to be served on foreign or domestic corporations in any county where a branch office or other place of business was maintained, but trial ivas restricted to the county of service except in certain circumstances involving joinder. Act No. 70 does not affect Act 98.
It is insisted by petitioner that injuries sustained by the plaintiff did not result from operation of the bus; that “. . . there was the interposition of a separate, independent agency — the alleged altercation or re-encoun ter. . . . The right of action in this case, if any exists, must find its justification in the allegation that the defendant’s employee, Tom Hubbard, with great force and violence, grabbed the plaintiff, John Hellen, by the shirt’,” etc.
In The Law of Automobiles, by Berry, and in Blash-field’s Cyclopedia of Automobile Law and Practice, the rule announced is:
‘It is certain that the passenger has the right to pass from the conveyance at the end of his journey in safety— that is, free from the assault of the carrier’s servants. Therefore, it would seem the principle attending the obligation continues to • afford protection to the passenger until the further necessity of relations with the servants of the carrier at and in the vicinity of its conveyance as by way of settlement of the charg*e for the transportation is passed. . Obviously the passenger may not be ruthlessly assaulted by the carrier’s servants without liability on its part while in the very act of paying the charge of transportation. . . . Though the journey is ended, the passenger is clearly within the protection of the carrier and the relation continues until the settlement of fare is made and he is permitted by the carrier to take his leave in peace.”
“The carrier-passenger relationship imposes on the taxicab operator the obligation to protect the passenger from the insult or assault not only by outsiders, but by his own servants as well. Thus far the passenger has a right to the absolute protection of the carrier, and thus far the carrier is an insurer of his safety, to-wit, from such assaults or insults at the hands of its. servants.”
We said, in St. Louis, Iron Mountain & Southern Railway Company v. Jackson, that carriers of passengers are not absolute insurers of the safety of their passengers against injury and ill treatment from other passengers. “Such is not the rule, however, in case of injury resulting to the passenger from the misconduct of its servants, it being an insurer of the safety of the pas senger against wilful assaults and intentional ill treatment of its servants, for whose acts it is responsible. ’ ’
If Act No. 70 was intended as a service statute, applicable to that class of cases illustrated by the instant suit, then it must be conceded plaintiff was injured by operation of the bus on a highway of the state, it being necessary for present purposes to look only to allegations of the complaint.
It was held in Coca-Cola Bottling Company of Southwest Arkansas v. Bacon, Judge, that summons served in Nevada county on the defendant’s truck driver in a suit alleging injuries from drinking contaminated Coca-Cola was void, the defendant’s place of business being in Ouachita county, and it having no agent or place of business in Nevada county. In that case the law was declared to be: ‘ ‘Reading [Act 70] from its four corners, the mode 'or manner of service provided therein has application only to actions for damages to persons or their property occasioned by the negligent operation of motor buses, coaches or trucks, on the highways of this state.”
We think, however, that § 3 of Act 70 shows the purpose for which the legislation was enacted. There, it is recited that through operation of motor buses and trucks upon the highways of the state, persons are being injured and their property -damaged, “. . . and in many instances there is now no agent of the owner or operator of such vehicles upon whom service of summons can be had in counties through which same are being operated; therefore an emergency exists on account of such injuries and damages to persons and property, and no adequate provision for services of summons existing, it is found that an emergency exists,” etc.
In the case at bar the plaintiff is a resident of Garland county. The incident of which he complains occurred west of Hot Springs, on Highway No. 270, in Garland county. It is alleged that Hellen “. . . purchased a ticket at defendant’s station in the Citizens Building in Hot Springs.” This is equivalent to a declaration that defendant maintained a place of business in Garland county.
No necessity existed for filing the action in a county other than Garland. There was ample legal facility for service of summons.
. It is our view, therefore, that Act No. 70 was intended to afford service rights only in those cases where adequate provision had not been made by previous statutes, and that it has no application to the case at bar.
Writ granted.
McHaney and Baker, JJ., concur.
Act No. 98 of 1909 appears as § 1369 of Pope’s Digest.
While Powers Manufacturing Company v. Saunders, 169 Ark. 748, 276 S. W. 599, 274 U. S. 490, 47 S. Ct. 678, 71 L. Ed. 1165, is not involved in the instant case, Act 98 of 1909 was the statute pointed to by the Supreme Court of the United States as creating the discrimination upon which the reversal was predicated. • • ■
Act 70 of 1935 appears as § 1377 of Pope’s Digest. Section 1 is as follows: “When the defendant is the owner or the operator of any motor bus or buses, motor coach or coaches, or motor truck or trucks, engaged in the business of carrying and transporting either passengers, freight, goods, wares or merchandise over any of the highways of this state, the service of summons may be had upon any such owner or operator by serving same upon any clerk or agent of any such owner or operator selling tickets or transacting any business for such owner or operator, or may be upon any driver or chauffeur of any bus, coach or truck being operated or driven by such driver or chauffeur as a servant, agent or employee of any such owner or operator, and service so had upon the agent or agents of any such owner or operator or had upon any such chauffeur or driver of any such bus, coach or truck being operated, or driven by such driver or chauffeur as a servant, agent or employee of any such owner or operator shall be deemed and considered as good and valid service upon such owner or operator whether such owner or operator be a person, firm or corporation.”
The emergency clause, in part, i’s: “Whereas, many motor buses, coaches and trucks are being operated upon the public highways of this state and by reason of their operation persons are being injured and their property damaged and in many instances there is now no agent ,of the owner or operator of such vehicles upon whom service of summons can be had in counties through which same are being operated, therefore an emergency exists on account of such injuries and damages to persons and property and no adequate provision for service of summons existing, it is found that this act is necessary . . ,” etc.
Berry, The Law of Automobiles, vol. 6, p. 210.
Blashfield’s Cyclopedia of Law and Practice, vol. 4, § 2216.
118 Ark. 391, 177 S. W. 33, L. R. A. 1915E, 668.
Compare cases cited at page 396, 118 Ark. 391, 117 S. W., p. 35. Also, see West Publishing- Company’s Arkansas Digest, vol. 4, § 283 (3) under “Carriers.”
193 Ark. 6, 97 S. W. 2d 74. | [
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Humphreys, J.
This is an appeal from a decree rendered by special chancellor Berry Floyd, in the- chancery court óf Marión County, in favor of W. H. Dobbs, on motion filed in an original attachment proceeding for a judgment against the intervener, G-. E. Roberts, and Ms bondsmen, J. B. Cook, N. A. Lowery and W. F. Butler, for the value of certain property not returned by them in the attachment proceeding in the same court, wherein W. H. Dobbs was plaintiff and Paul Stone defendant. Tbe attachment proceeding was tried by the regular chancellor, Judge Sam Williams, at a prior term of court, and a decree rendered therein.
It was alleged in the motion that - the intervener, G-. E. Roberts, obtained the release of 1,400 railroad ties which had been attached in the attachment proceeding by filing a bond conditioned for their return; and, in the decree sustaining the attachment, the intervener was ordered to return or deliver them to the sheriff, which he failed to do; and that his bondsmen, J. B. Cook, N. A. Lowery and W. F. Butler, are liable therefor.
J. B. Cook and Floyd Butler denied the execution of the bond or that the intervener, J. B. Roberts, failed to return or deliver any of the property ordered to be returned or delivered in said decree. This answer was sworn to before the clerk of the court.
When the motion was called for trial, appellants herein objected to the trial thereof on oral evidence, and requested that same be heard on depositions, which request was refused, over their objection and exception.
Appellants contend that this ruling by the court constituted prejudicial, and therefore reversible-, error. We do not understand that the statute allowing the use of depositions in equitable proceedings is mandatory. The language of the statute is that “depositions may be used on the trial of all issues, and upon all motions in actions by equitable proceedings.” Even though the request to do so was made by appellants, and refused by the court, no showing is made that the action of the court prejudiced them in any way. No reversible error was committed by allowing the motion to be tried on oral evidence.
The next contention of appellants for a reversal of the decree finding that they executed the intervener’s bond is that there is no evidence whatever to support it. They call attention to the fact that they verified the response denying the execution of the bond, and to the recital in the decree that the issues joined by the motion and response were tried upon the evidence of certain witnesses and certain excerpts from the witnesses who testi fied in the attachment proceeding, and that none of said witnesses testified that the intervener’s bond was given. The decree did not recite specifically that all the pleadings and proceedings in the attachment suit were before the special chancellor, but, of course, they were, as this motion was filed in that case. The transcript herein shows that the clerk read the original decree in the attachment proceeding to the special chancellor, yet no mention was made of it in the decree rendered by the chancellor. It appears that, in the original decree the intervener’s bond called in question was referred to. In the decree sought to be reversed on this appeal, the special chancellor specifically found “from the record in this case that, J. B. Cook, Floyd Butler and N. A. Lowery are the bondsmen of the intervener, Gr. E. Roberts,” meaning, of course, that the record in the attachment proceeding before him, and subject to his inspection, showed that they had executed the bond. This proceeding, by motion in the attachment suit, was a continuation thereof for the purpose of obtaining the property, or its value, from the intervener and his bondsmen, who failed to return the attached property to the sheriff in accordance with the original decree. The record in the entire proceeding was necessarily before the special chancellor, and we must presume from his finding that the intervener’s bond, signed by appellants, was in the files and inspected by him.
Appellants also contend for a reversal of the decree on the ground that the evidence fails to show that the 1,400 railroad ties attached by the sheriff were delivered to the intervener on his cross-bond. The evidence was conflicting in this particular, and we cannot say, after a careful reading thereof, that the finding of the special chancellor was contrary to a clear preponderance of the evidence.
No error appearing, the decree is. in all things affirmed. | [
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Holt, J.
March 6, 1920, O. P. Morrison and wife executed a deed of trust to C. M. Blocker, trustee for Mary Temple Huckins,' on certain property in Miller county, Arkansas, to secure their note for $2,000, due two years from date.
July 21, 1920, appellants, L. D. Young and Irene Young, his wife, purchased the mortgaged lands in question from O. P. Morrison and wife. They immediately went into possession and have been occupying the lands up until December 12, 1939.
December 12, 1939, default having been made in the payment of the note, a suit to foreclose was brought in the Miller chancery court by appellees against O. P. Morrison and wife and appellants, L. D. Young and wife. Copies of the deed of trust and the note sued on were made a part of the complaint. Service was had upon Morrison and wife by warning order and personal service had upon L. D. Young and wife. No answer was filed by the Morrisons, but appellants, L. D. Young and wife, filed their separate answer, specifically pleading a,s a defense adverse possession of said lands for seven years, the five-year statute of limitations on the note in question, and denied knowledge of the assumption clause in the deed.
During the March, 1940, term of the Miller chancery court, on the 25th day thereof, Morrison and wife having made default and failing to appear, decree was rendered against them condemning the mortgaged lands to be sold in satisfaction of the indebtedness.
Upon motion by appellees (plaintiffs below), appellants attached their deed from Morrison and wife to their amended answer and filed same February 19, 1940. This deed contains, among other things, the following provisions: “We, O. P. Morrison and Eliza Morrison, his wife, for- and in consideration of the sum of $3,000 to us paid by L. D. Young, and the assumption by the said L. D. Young of one certain deed of trust for the sum of $2,000 to Mrs. Mary Temple Huckins, dated March 6, 1920, and recorded in Book VV at page 439, do hereby grant, bargain, sell, and convey unto the said L. D. Young and unto his heirs and assigns forever, the following land lying in the county of Miller, state of Arkansas, to-wit:- . . .”, and dated July 21, 1920, about four months after the Morrisons’ deed of trust to appel-lee, C. M. Blocker, trustee.
February 23,1940, appellees demurred to appellants ’ answer and amendment thereto. March 25, 1940, upon a hearing on this demurrer, after entering a decree against the Morrisons, as above indicated, the cause was continued as to Young and wife to March 27.
On the latter date the cause was again heard by the court and appellees ’ demurrer to the answer and amendment thereto of L. D. Young and wife was sustained and their answer dismissed.
March 30, 1940, appellants, Young and wife, filed motion to vacate the decree of March 25, 1940, and the decree of March 27, 1940, and that they be permitted to plead the five-year statute of limitations (§ 8933, Pope’s Digest) as a defense and bar to appellees’ foreclosure suit.
Appellees filed response to appellants’ motion and on April 6, 1940, upon a hearing, the court overruled the motion to vacate the decrees of March 25 and March 27 and held that the only rights that appellants, Yonng and wife, had in the property were as set ont in its decree of March 27 wherein the court decreed that the title to the property claimed by appellants was “inferior and subject to the plaintiffs’ deed of trust covering said property which the said defendants assumed and agreed to pay as a part of the purchase money and that their sole rights in said property is the right to redeem from said mortgage indebtedness, and there being no offer to do so, it is ordered and decreed that their title in and to said land be and the same is hereby canceled and set aside and the plaintiffs’ title forever quieted as against their claim.”
Following this decree, the property was advertised, and sold, the sale approved, and the deed executed by the commissioner to the purchaser.
The principal contention upon which appellants seek relief here is that the trial court erred in denying their defense of the five-year statute of limitations as a bar. We think, however, that there is no merit to this contention.
As has been indicated, appellants, Young and wife, held possession of the land in question under a deed from O. P. Morrison and wife whose subsisting mortgage'indebtedness was in full force and effect at the time appellants purchased the equity of redemption, and who as a part of the consideration specifically assumed and agreed to pay the mortgage indebtedness due the mortgagee and which indebtedness, according to the proof, was kept alive by the mortgagee by payments of insurance, appearing on the back of the note, the last payment of $12.85 being dated October 19, 1939.
This finding appears in the decree of the trial court dated March 25, 1940, in the following language: “The court further finds that under the terms of said deed of trust said plaintiffs have from time to time paid taxes and insurance on said property. The last credit on said note being October 19, 1939, for insurance in the sum of $12.85.”
Since the evidence upon which the trial conrt based its foreclosure decree of March 25,1940, does not appear in the transcript, and therefore has not been abstracted, a presumption must be indulged here that evidence was introduced upon which said decree was based sustaining the allegations of the complaint that advancements were made and indorsed on the note which kept it alive beyond the time suit was instituted in accordance with the trial court’s decision.
This court has many times held against the contention of appellants. As early as Millington v. Hill, Fontaine & Co., 47 Ark. 301, 1 S. W. 547, this court said:
“. ... Mrs. Millington attacked the validity of the lien of the mortgages already mentioned, upon the ground, . . . that the debts they secured were usurious in their inception. A demurrer to the answer was sustained. It is clear that Mrs. Millington was not prejudiced by this ruling.
“The mortgages had been executed by Bolton before his conveyance to her, and she had not only purchased subject to the mortgage liens, but had assumed to discharge the mortgage debts to the amount of $6,000, as part of the purchase price to be paid by her. . . . Bolton thus provided the means with which to pay this $6,000 and placed it in Mrs. Millington’s hands for that purpose. It is not a matter that concerns her whether the mortgages are void, the debts fictitious, or not. . . To permit her to hold the lands and repudiate the mortgages, would be to give her the land without exacting the purchase price.”
In the comparatively recent case of Haney v. Holt, 179 Ark. 403, 16 S. W. 2d 463, this court said:
“. . . ‘one who takes a conveyance, absolute or conditional, which recites that it is second or subordinate to some other lien or incumbrance, can in no proper sense claim that he is a purchaser of the entire thing. He purchases only the surplus or residuum after satisfying the' other incumbrance’ . . .
“The plaintiffs, by accepting their subsequent mortgage under the circumstances aforesaid, ceased to be strangers to the defendant’s prior mortgages, and were thereby brought into contractual relations with said mortgagees, and they imposed limitations upon the interest acquired by them in the property . . .
“Again, it is insisted that the judgment in favor of Holt against W. H. Haney should be reversed because the account was barred by the statute of limitations; but the chancellor correctly held that 'the stipulation in the case took away from the defendant the right to plead the statute of limitations. The stipulation expressly recites that W. H. Haney was indebted to H. H. Holt in the sum of $349.85.”
See, also, Gunnels v. Farmers’ Bank of Emerson, 184 Ark. 149, 40 S. W. 2d 889.
And in the still later case of Cunningham v. Federal Land Bank of St. Louis, 192 Ark. 156, 90 S. W. 2d 503, this court said: “Under repeated opinions of this court we have consistently held that a grantee in a, deed who expressly assumes and agrees to pay an outstanding mortgage debt against the lands conveyed by accepting such deed binds himself to the mortgagee or his assignees for the debt. This right inures to the mortgagee and his assignees as a matter of law, and no election or other affirmative action upon his part is necessary or required to establish it.”
Under these authorities, it is clear that the clause, sufra, in the deed from the Morrisons to the Youngs brought the Youngs into a contractual relationship with the mortgagee as a matter of law and until appellants performed such contract they were not in a position to question the validity of the note or the lien securing it for the reason that while appellants owned the land, their ownership was subject to the indebtedness assumed. They went into possession bound by the terms of this contract and as we have said, the statute of limitations was not available to them as a defense.
Appellants also sought in their answer to avoid the effect of the foregoing decisions on the ground that they did not know that the mortgage assumption agreement was in the deed from the Morrisons to them. Proof to sustain this contention, however, would have been improper for the reason that it would vary the terms of a written contract and, therefore, this allegation in their answer was no defense.
In Mott v. American Trust Co., 120 Ark. 70, 186 S. W. 631, quoting from headnote No. 2, it is held: “In an action by a mortgagee against a remote grantee of the land, whose conveyance recited that it was subject to the mortgage, hut who took from the vendees of a mortgagor as part consideration for the sale of a livery stable the written contract stipulating for the conveyance to the remote grantee ‘subject, however, to a mortgage . . . due and payable to’ the mortgagee, parol evidence that the remote grantee orally agreed to pay the mortgage debt was inadmissible as varying the written contract, since where the statement in a writing as to the consideration is of a contractual nature, it cannot be changed or modified by parol.” See, also, Hood v. Young, 178 Ark. 439, 11 S. W. 2d 767; and Elliotts Cravens, 182 Ark. 893, 33 S. W. 2d 373.
The mortgage in question executed by Morrison and wife which appellants assumed, and which was made an exhibit to the complaint, in addition to securing the principal sum to appellees, contains a provision whereby the mortgagors agreed to keep the property insured, the taxes paid and upon failure of the mortgagors to make these payments, the mortgagees (appellees here) upon discharging said obligation, should be secured by said mortgage on said premises with the same rights, security and enforcement thereof as on the principal sum.
As we have indicated, the record reflects that the mortgagees (appellees here) from time to time paid taxes and insurance up until beyond the date of the trial and by so doing kept the note alive and tolled the statute of limitations. This was the effect of our holding in Dunnington et al. v. Taylor et al., 198 Ark. 770, 131 S. W. 2d 627, and has been followed in the subsequent case of Bell et al. v. McElroy, 198 Ark. 1069, 132 S. W. 2d 816. The action, therefore, was not barred by the statute of limitations.
Finally appellants urge as a defense to appellees’ snit to foreclose the mortgage in question, the seven-year statute of limitations (§ 8918, Pope’s Digest). This court, however, in White et al. v. White et at., 198 Ark. 740, 131 S. W. 2d 4, held that the seven-year statute of limitations was not applicable to mortgage foreclosure suits and in the course of the opinion said: “Appellant contends that since the record shows on its face that the suit was not brought within seven years after the cause of action accrued, the right to bring the action is barred under § 8918 of Pope’s Digest. . . . The section of the statute relied upon applies to actions to recover land and do.es not govern suits to foreclose mortgages.”
On the whole case, no error appearing, the decree is affirmed. | [
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Holt, J.
December 14, 1939, appellant, Grace Mc-Gougb, beneficiary under a group accident and health insurance policy issued to her husband by appellee, filed suit to recover under the terms of said policy. 'She alleged in her complaint that her husband died on March 2, 1939, from the accidental breathing of carbon monoxide gas.
Appellee in its answer denied- every material allegation in the complaint.
The only issue involved in the trial of the cause below was whether the deceased, Horace McGough, met his death “from the accidental breathing of carbon monoxide • gas” or “from a heart attack or any other disease.” The jury determined this issue in favor of appellee, and this appeal followed.
The record reflects that deceased, Horace McGough, left his home about 7:30 p. m., March 1,1939, and upon returning remained in his automobile, in his garage, where he was found dead at about 7:30 the following morning. At the time his body was discovered, he was sitting in an upright position under the steering wheel with his cap on his head. The doors of the car were open, but the garage doors were closed. The engine of the ear was running and the garage was warm and full of fumes and smoke. The temperature was about 40 degrees outside.
The only question presented for review here is whether the trial court erred in perpiitting the hypothetical question, hereinafter set out, to be propounded by appellee to its witness, Dr. T. J. Raney, Jr.
Appellant’s objections to this question are (l).that the facts incorporated in it did not state all of the material facts as substantiated by the proof in the case; (2) that the question invaded the province of the jury; and (3) went beyond the evidence and was, therefore, misleading. It is our view that none of these objections can be sustained.
The question is as follows:
“Q. I will ask you, doctor, in this case there is in evidence that Mr. Horace McGough was a man 52 years old; he had used alcohol over a period of four or five years, and definite testimony on occasions to excess to the extent that he became intoxicated and wouldn’t return to his home but slept out; and sometimes to the sufficient extent that he had been arrested; that immediately prior to his death he had a pasty complexion; had become, in the opinion of laymen, somewhat heavy and overweight; one week prior to his death he had reason to believe he was to be discharged — might be discharged from the railroad, or placed in a position at reduced salary; on the morning of his death he was found in his car sitting in an erect position; his hands folded in his lap; his clothes were not disheveled; his cap was on his head; at that time his complexion observed by the physician who saw him was that his face in its entirety was ash gray in complexion ; in addition thereto the garage doors were closed and contained smoke from the exhaust of the automobile itself, but no testimony as to the amount of carbon monoxide; the engine at the time was running; it was hot; with those facts before you, what, in your opinion as a physician, would be the cause of the death of Mr. Mc-Gough? A. I would think that the man died of heart trouble — a heart attack I should say, instead of heart trouble. ’ ’ with sufficient accuracy and detail the facts which the evidence tended to show about the injury and condition of appellee. Hypothetical questions must fairly reflect the evidence, but such questions do not necessarily embrace disputed facts that are essential to the issue, and it was said in the case of Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405. ‘In taking the opinion of experts, either party may assume as proved all facts which the evidence tends to prove. The party desiring opinion evidence from experts may elicit such opinion upon the whole evidence or any part thereof, and it is not necessary that the facts stated as established by the evidence should be uncontroverted. Either party may state the facts which he claims the evidence shows, and the question will not be defective if there be any evidence tending to prove such facts. When a party seeks to take an opinion upon the whole or any selected part of the evidence, it is the duty of the court to so control the form of the hypothetical question that there may be no abuse of his right to take the opinion of the experts.’ ”
At the outset it may be said that this litigation involves a highly technical question and competent expert testimony might aid the’ jury in arriving at a correct verdict. It was necessary for the jury to determine from all the evidence whether McGough met his death from inhaling carbon monoxide gas or from some natural cause, as heart failure.
The witness, Dr. Raney, offered by appellee as an expert, was a graduate of the Arkansas Medical School, was for three years connected with the ¡Baptist State Hospital in Little Rock, first as intern, then as house doctor, and finally as resident physician. During this time, and since, he has made a study of carbon monoxide poisoning and has come in contact with several cases. On this record certainly we think him qualified as an expert.
The general rule as to what constitutes a proper hypothetical question is stated by this court in the recent case of Missouri Pacific Transportation Co. v. Robinson, 191 Ark. 428, 86 S. W. 2d 913, as follows:
“It is next contended by the appellant that the court erred in permitting the hypothetical question to be asked and answered. We do not think there was any error committed by the court in permitting the hypothetical question to be asked and answered. The question states
Appellant objects to certain parts of the hypothetical question as being without any competent evidence for their support.
Objection is made to the following: “He had used alcohol over a period of four or five years.” We think there is ample evidence in the record to support this statement.
Mrs. McGough testified: “Q. State to the jury, Mrs. McGough, whether you ever had occasion to go in the garage and get your husband? A. I had had occasions to go out and get my husband. My husband wasn’t fin habitual drinker, but he did drink sometimes, and I have had to go out there and get him several times. . . . Q. When he was drinking would he come in the room where you were? Where did he go? A. Hardly ever, and especially if the family had retired he wouldn’t come in. He would stay in the garage and sit in his car. It was very cold and he would be sleepy, ’ ’ and that for, perhaps, a year and a half she had gone to the garage at different times, for her husband, after he had been drinking.
Met Gralligher testified that he had arrested Mc-Gough three or four times for intoxication, the last time about thirty days before his death, and the first approximately four years prior thereto.
Objection is next made to the following: “. . . that immediately prior to his death he had a pasty complexion; had become, in the opinion of laymen, somewhat heavy and overweight. ” '■
Met L. Gralligher, chiéf of police of Pine Bluff, testified on behalf of appellee, that he saw deceased about thirty days before his death and that he had a pasty complexion and that he weighed between 180 and 200 pounds, and had the general appearance of not being well. This ' evidence was sufficient to support this part of the question.
Again objection is made to the following: “. . . one week prior to his death he had reason to believe he was to be discharged from the railroad, or placed in á position at reduced salary.” We think this part of the question was supported by ample testimony. Mr. Wicker, an assistant superintendent of the railroad, testified that McGough’s work had been unsatisfactory since 1937 due to absence from his job and that he had informed Mc: Gough that unless his work improved he would recommend reduction to a lower station, resulting in decreased salary.
Finally objection is made to the statement: <£. but no testimony as to the amount of carbon monoxide! ’ ’ We fail to find in this record any testimony as to the amount of carbon monoxide gas in the garage at the time deceased’s body was found, 5r at any time after he went into his garage, nor as to the amount of carbon monoxide which c'ould have been inhaled by the deceased. Appellant points us to no evidence on this question. We, therefore, think that this wa,s- properly included in the question.
It is our view that the question, taken in its entirety; was a proper one and included no statements that were not supported by evidence and did not fail to include all of the undisputed essential facts.
Finding no error, the judgment is affirmed. | [
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Kirby, J.,
(after stating the facts). Appellant contends that the court erred in giving said requested instruction No. 5, set out above, and the contention must be sustained. This instruction requires a higher degree of responsibility from employers than the law warrants, placing on the master in effect the absolute duty to furnish a safe place for his servant to work, while under the law he is only bound to the exercise of ordinary care to provide a reasonably safe place in which to work. It was so held by this court in the case of Fort Smith-Spadra Mining Company v. Shirley, 178 Ark. 1007, 13 S. W. (2d) 14, wherein an instruction almost identical with the one-here was condemned and held to be erroneous.
The error in giving appellee’s instruction No. 5 was not cured by the giving of a correct instruction on the point for appellant, said correct instruction necessarily being in conflict with, and contradictory of, said erroneous instruction of appellee’s. St. Louis-San Francisco Ry. Co. v. Horn, 168 Ark. 191, 269 S. W. 576; Bullman Furniture Co. v. Schmuck, 175 Ark. 422, 299 S. W. 738. “Separate and disconnected instructions, each complete, and irreconcilable with each other, cannot be read together so as to modify each other and present a harmonious whole” Temple Cotton Oil Co. v. Skinner, 176 Ark. 17, 2 S. W. (2d) 676.
Neither was appellant required to make a specific objection to the instruction, as it was inherently erroneous; a general objection being sufficient to reach the defect. First National Bank v. Peugh, 160 Ark. 517, 255 S. W. 4.
There are some other objections to the instructions which we do not notice, since they do not appear to have been preserved in the motion for a new trial.
For the error committed in the giving of appellee’s requested instruction No. 5, the judgment is reversed, and the cause remanded for a new trial. | [
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McHaney, J.
Appellants own the east half of the southeast quarter of the southeast quarter of section 30, township 6 south, range 20 west, and appellee owns the west half of the same description. This litigation grows out of a difference of opinion as to the proper division line between their respective tracts of land. At the time appellants purchased their land in September, 1936, it, with other land purchased by them, was enclosed with a fence. Thereafter, appellee purchased the west half of southeast southeast of 30, had the line between him and appellant surveyed by the county surveyor, which survey showed the west line of appellant s’ fence to he on, ap-pellee’s property 54 feet on the south side and 194 feet on the north side, the fence running from a point 54 feet west of. the southwest corner of appellants’ tract in a northwesterly direction to a point 194 feet west of the northwest corner of their tract. This fence Avas bnilt by one Golden, appellants’ grantor, Avho purchased from Missouri State Life Ins. Company in 1929, and he estimated where the proper line Avas by stepping it off. Ap-pellee, after the survey, started tearing doAvn the division fence Avith the vieAV of replacing it on the proper line, Avhen he was temporarily enjoined by the action of appellants in bringing this action. Trial resulted in a decree for appellee, dismissing the complaint of appellants for Avant of equity, and in establishing the division line in accordance Avith the survey made at the instance of appellee by the county surveyor.
For a reversal of this decree tAvo arguments are made: 1. Was the last survey made by the surveyor correct; and 2. If so, does the testimony establish title in appellants by adAmrse possession.
1. There were t\vo surveys made of this division line. The surveyor testified that he was not satisfied Avith his first survey, and went back and ran the line a second time; that on this second survey he used as a starting point a big gum tree AAdiich is shown on the government field notes as a starting point, and he is satisfied that the second survey is correct. The trial court accepted this testimony. It is undisputed, and we see no reason to disregard it. Assuming that appellee had the burden of showing the correctness of this survey, we think at least a prima facie case Avas made.
2. As to the adverse possession of appellants, it is true their land has been under fence for more than seven years. Neither appellants nor their grantor ever had the land surveyed. They owned 50 acres in one body — this 20 and 30 acres in an adjoining section. They refused to join Avith appellee in the survey made by him, but said they were satisfied with the line as shown by the fence. Golden testified -that he claimed only the 20 acres called for in his deed, as to this particular tract. The fence was built by estimate made by stepping off distance from another point. Appellee testified that he bought his land in December, 1937, and thereafter had a talk Avith Mr. Waters on Christmas Eve day, and told him hé thought the fence was over the line on this land, and that Waters told him to go ahead, have the survey made, and “if it wasn’t on the line he wanted it on the line. ‘Q. Did he tell yon what he wanted done about it if the line wasn’t right? A. Yes, sir, he said if the fence wasn’t on the line he wanted it on the line, and if he had any of my land fenced up lie wanted me to have it.’ ” Appellee was corroborated by two witnesses who' heard the conversation between the parties on Christmas Eve, 1937.
The rule laid down in Goodwin v. Garibaldi, 83 Ark. 74, 102 S. W. 706, and quoted with approval in Couch v. Adams, 111 Ark. 604, 164 S. W. 728, is: “The following is the law on this subject, which has been repeatedly announced and adhered to by,this court:
“ ‘When a landowner, through mistake as to his boundary line, takes possession of land of an adjacent owner intending to claim only to the true boundary, such possession is not adverse, and though continued for the statutory period, does not divest title; but when he takes possession of the land under belief that he -owns it, incloses it and holds it continuously for the statutory period under claim of ownership without any recognition of. the possible right of another thereto, on account of mistake in the ’boundary line, such possession and holding is adverse, and, when continued for- the statutory period, will divest the title of the former owner who lias been thus excluded from possession.’ Goodwin v. Garibaldi, 83 Ark. 74, 102 S. W. 706.”
■ We, therefore, hold that the evidence was ample to justify Ihe trial court in finding and holding that the possession of appellants and their grantor was through error in establishing the division line, and that they intended to claim only to the true boundary, and that such holding was not adverse.
The decree is, accordingly, affirmed. | [
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Butler, J.
The .suit involves the contest of the last will and testament of Henry W. Jones, deceased, who left surviving him three children by a former marriage and a widow who had -been married before her marriage to Jones, and who, at that time, was the mother of a number of children. Jones executed his will in 1916, by which he gave to his wife all of his property for her life, and at her death to her children, the -stepchildren -of Jones, and his own children were bequeathed the sum of $5 each. The will was contested by the deceased’s children, Robert Jones, Charlie Jones and Rhoda Burkett, on the ground of lack of testamentary capacity, and undue influence. There were no children born to the testator by his second marriage.
In the circuit court the case was submitted to the judge sitting as a jury, who, after having -heard the testimony, found against the will, and it is to review his decision that this appeal has been prosecuted.
The judge, in trying the case, necessarily -considered the question of testamentary capacity and undue influence together, and this court is concluded by his -finding, if there was any substantial evidence adduced which would tend to establish and sustain Ms finding and judgment. In determining the sufficiency of the evidence this court must give to the evidence heard by the court tending to establish the correctness of his finding its strongest probative force and value. This rule is so well settled that we deem it unnecessary to cite the authorities sustaining’ this view.
As we have said, the questions of testamentary capacity and undue influence are so interwoven in any case where these questions are raised that the court necessarily considered them together (St. Joseph’s Convent v. Garner, 66 Ark. 623, 53 S. W. 298), for in one case where the mind of the testator is strong and alert the facts constituting the undue influence would be required to be far stronger in their tendency to influence the mind unduly than in another, where the mind of the testator was impaired, either by some inherent defect or by the consequences of disease or advancing age. It is clear that feeble intellect will not be of itself sufficient to establish lack of testamentary capacity, for that condition must be so great as to render the testator incapable of appreciating the nature and consequences of his act; but this feebleness may be inferred when, from the facts in proof, it is apparent that he was incapable of appreciating the deserts and relations of those whom he excludes from participating in his estate, although he might have had the ability to retain in memory, without prompting, the extent and condition of his property, and to comprehend to whom he was giving it. Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405; Mason v. Bowen, 122 Ark. 407, 183 S. W. 973, Ann. Cas. 1917B, 713.
The facts constituting undue influence largely depend upon the condition of the mind of the person alleged to have been influenced. It has been said in the case of Kelly’s Heirs v. McGuire, 15 Ark. 555, that if one is of such great weakness iof mind as to be unable to resist importunity, and his act is not that of a judgment deliberately exercised, but the result of the control of a stronger mind by any means or artifice, cunning or fraud, that act is void.
The court, in discussing what would amount to undue influence, associates the state of mind with the causes operating upon it to induce the commission of an act. In the case of Tobin v. Jenkins, 29 Ark. 157, where the question before the court was whether or not the testator was of disposing mind and memory to make the will, and, if he was, was he also at the same time free to act, this language was used:
“Free agency and capacity to contract are each indispensably necessary to make a valid contract or execute a valid will. The lack of mind comprehends both, because without mind there can be no free agency; but if there is mind it must be free to act, and if restrained unduly to the extent that free agency is destroyed, the act is void. This incapacity, or undue restraint, must exist ait the time the act is done; if capacity and free agency exist then, the act is valid, irrespective of the state of mind or degree of restraint, whether before or after that time. 'But, in order to determine the capacity and its free action at the time- the will is made, a wide range of inquiry is permissible into facts and circumstances, whether before or after the time of the making of the will, the better to enable the jury to determine the probable state of the mind and the extent and force of the restraint at the time the will was executed. And as regards undue restraints, it may be proper to remark that it is not necessary that the mind should act under influences at the time brought to bear, or then employed, but they may be such as have at a previous time been so fixed and impressed as to retain their controlling influence at the time the act is done. Nor is such restraint necessary to be effected by force or intimidation; for it has been held, upon authority, that if the mind acts by force of long training to submission, .so that the will of another is adopted for its own, and without reflection, the party thus influenced is incompetent to contract. * * * There is another ground, which, though not so distinct as actual force, nor sio easy to be proved, yet, if it should be made out, would certainly destroy the will, and this is, if a dominion was acquired over a mind of sufficient sanity for general purposes, and of sufficient soundness and discretion to regulate his affairs in general; yet if such a dominion or influence were acquired over him as to prevent the exercise of such discretion, it would be equally inconsistent with the idea of a disposing mind.”
This reasoning is adopted by the court in the case of Kennedy v. Quinn, 166 Ark. 509, 266 S. W. 462. There may be, however, influences which determine the action of the testator which axe legitimate in their nature, such as that which springs from natural affection and which is occasioned by the associations of the testator with the beneficiaries in the ordinary affairs of life and by the confidential relations existing between them at the time of the making of the will. The influence which the courts reprehend, and which is considered sufficient to overturn the act of the testator, is that evil influence which springs from fear, coercion, or other causes which deprive the testator of his free agency and the disposing of his property. Milton v. Jeffers, 154 Ark. 516, 243 S. W. 60.
With these principles of law in mind, we proceed to the examination of the testimony introduced at the trial in the court below.
There is evidence that at the time of the execution of the will there was no one of the beneficiaries present, but the testator, unaccompanied, appeared in the office of an attorney and there informed the attorney as to how and to whom his estate should be given. The attorney, and others who happened to be in the office at the time, and who witnessed the will, gave as their opinion that, from their previous knowledge of the testator and of his conduct at the time, he had sufficient mental capacity to understand and appreciate the full force and effect of his testamentary act. Others, his neighbors, and men with whom he had had business transactions, told of the way he transacted his ordinary business — how he would make purchases for himself and his neighbors, how he would sell his own and their products and account' to those for whom he was acting for the proceeds of the sales made— and, basing their opinions on these facts detailed by them, stated that he was able to and did, through the course of many years, both before, about the time, and after the execution of the will, act with fairly good business judgment, and that they thought that he had sufficient mental capacity to execute his will and to make disposition of his estate in the manner he desired.
There was other testimony that his own children had virtually deserted him, electing to make their home with their mother, and that Mr. Jones resented this conduct on their part, and stated that they had “thrown him down,” and that he was going to “throw them down;” also that he was happy in the association of his second wife, who survived him, and her children, who had lived with him through many years, and that the wall executed by him was the expression of a just resentment toward his own children and a reward for the care and affection which he had received from strangers to his blood.
But there was another state of facts presented by the testimony which was in conflict with that we have above related, and we are now to consider this testimony, giving the same its strongest probative value to ascertain if it was sufficient to warrant the trial judge in his finding against the will. For the purpose of this decision, we must view this evidence through the eyes of the trial'court, who viewed the witnesses, considered their interest in the case, their knowledge and means of information, their demeanor while upon the stand, with all other surrounding circumstances, -and whose province it was to judge as to their credibility and the weight of their testimony. Two facts are apparently undisputed in the evidence; the first is that the 'testator could, and did, attend t'o his ordinary business affairs with a fair degree of business judgment; the other is that he was a man of feeble intellect, of low moral standards, and easily influenced by bis associates. It appears that he had bnt a small amount of property, and that he made his livelihood by tilling' a small farm and selling the produce derived from it, the most of his property having been acquired by inheritance from his parents, but which he did not dissipate, and perhaps made some slight additions to it. He married apparently early in life, and lived with his wife until 1893, she having borne him four children— two boys and two girls. In that year his wife obtained a divorce from him, and was awarded the custody of her children, all of tender years, the youngest being at that time only two years of age and the oldest being nine years of age. She was given, for the support of herself and these four children, one horse, one cow, ten head of hogs, and one-third of the proceeds of a hillside forty acres of land, all of which amounted to the sum of $150, and with this she and her four children went out into the world to live and thrive as best they might. It is shown that she asked for and obtained the divorce because of the thriftless and foolish conduct of her husband. A number of years after the divorce the father brought them back to his farm and there kept them for a short time. But in the meantime he had moved upon that farm a widow — the widow Poteet, with her numerous brood. He installed the widow and her children in the good house on the front of the farm, and put his own children, two of whom were girls, in a log hut on the back part of his farm, and in the evenings he spent his- time with the widow.
It developed that about that time he sought to make his union with the -widow more legitimate and lasting, she made a condition for the marriage that he should ‘ ‘ get rid of his dern kids, ’ ’ which he did, telling them that they would have to go, and that, while he was fond of them and would love to keep them and send them to school, he couldn’t do it. So the children, at that time ranging from fifteen to eight years of age, were again sent out into the world, human wreckage, while the father was rewarded by the heart and hand of the charming widow. Jones, the testator, had frequently boasted about the country of his relations with the widow and with other women, so much so as to arouse the indignation of the community. After his marriage to Mrs. Poteet he permitted his children to return, and they were allowed to live with their father and stepmother for a year or thereabouts,, when their stepmother again compelled their father to drive them from home. It seems he loved his children in a way, and was reluctant to make them leave, for, as his youngest son started away, the old man walked with him for two miles down the road and sorrowfully bade him a goodbye, telling him that he couldn’t help it.
His second wife was about nine years older than he, and there was testimony of some of the neighbors that she could make her husband do anything she wanted him to do. It is clear that, if the testimony of his children is to be believed, she did have influence enough with him to coerce his will and compel him to drive his own flesh and blood from his door and deprive them of house and home. Later on, beginning with the year 1914 and at several times after that, one of his sons, who had grown to manhood and who had married, tried to rent land from his father, and was refused, because, as the old man said, “Your stepmother and her children don’t want you here,” the stepchildren during all of these years having lived upon the farm of the ancestors of the Jones children, who had been dispossessed and driven away.
It was in 1916 that the will was executed, the testator at that time being 58 years of age, and he survived about nine years after the date of the execution of the will; There was testimony that, at or about the time of the execution of the will and continuing, the old man’s mind was more feeble than it had been.' When he was stricken with his last illness, the stepmother and her children appeared to resent the ministrations of his own children, who had come to be with their father in his last illness and to wait npon him, and they stndionsly prevented any of his own children being- alone with him during that time.
These are the facts indicated by the testimony of the witnesses introduced on behalf of the contestants. In the eyes of the trial judge the malevolent figure which stalks through the scenes of this sordid drama is the former widow Poteet, whose stronger will and vindictive nature and love for her own children controlled the will and actions of her husband with respect to his own flesh and blood. Applying the principles of law above announced to this testimony and indulging in the wide range of inquiry into the facts and circumstances, there is substantial testimony, which is permissible in cases like this, to warrant the trial judge in concluding that the influence of the testator’s second wife, beginning even before their marriage and continuing on to the time of the execution of the will, had so fixed itself upon the mind of the testator as to dominate his will and be the controlling influence operating upon him at the time of the execution of the will. It was dominion acquired over a mind of sufficient sanity for general purposes and sufficient soundness and discretion to regulate his affairs in general, but, on account of the inherent weakness of his character, was such as to prevent the exercise of untrammeled judgment. It was not such restraint on the will as was effected by force or intimidation, but by a long training to submission, so that her will became his and his act the result of that influence so acquired and continued through the years.
As we have stated, this court is bound by the finding of the trial court, even though it might have been against the great preponderance of the testimony, if there was any substantial evidence to warrant his finding, and the testimony to establish that evidence must be given its strongest probative force. Under the rules announced, we think that there was legal testimony to warrant the trial court in its finding and judgment that the will was invalid, and should be set aside. The judgment is therefore affirmed.
Kieby, J., dissents. | [
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KENNETH S. HIXSON, Judge
| ¶Jessie Earl Baney has appealed from the revocation of his probation. After the appeal was originally submitted, we ordered supplementation of the record and rebriefing because Mr. Baney’s written conditions of probation were not contained in the record or his addendum. See Baney v. State, 2016 Ark. App. 405, 2016 WL 4916804. The record and appellant’s addendum have now been supplemented with the written conditions, and the case is ready for decision.
On July 8, 2013, Mr. Baney was convicted of two counts of residential burglary, two counts of theft of property, one count of breaking or entering, and one count of aggravated cruelty to a dog, cat, or horse. Mr. Baney was placed on ten years’ probation for each of the burglary and theft convictions, and placed on six years’ probation for each remaining conviction. On October 2, 2015, the State filed a petition to revoke appellant’s probation, alleging that he violated the conditions of his probation by incurring subsequent felony charges, possessing a firearm, failing to be gainfully employed or enrolled as a student, failing lato seek out a stable residence, and failing to pay fines and costs. After a hearing, the trial court found that Mr. Baney violated his conditions and revoked each of his probations. Upon revocation, the trial court entered an order on October 8, 2015, sentencing appellant to a total of thirty years in prison.
On appeal from his revocation and resulting sentences, Mr. Baney argues that there was insufficient evidence to support the trial court’s finding that he violated his conditions of probation. We agree with Mr. Baney’s argument, and we reverse.
Pursuant to Arkansas Codé Annotated section 16-93-308(d) (Repl. 2016), a trial court may revoke a defendant’s probation at any time prior to the expiration of the period of probation if the court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a term or condition of his probation. The State has the burden of proving that a condition of probation was violated. Jones v. State, 2013 Ark. App. 466, 2013 WL 4766701. The State need only show that the defendant committed one violation in order to sustain a revocation. Banks v. State, 2014 Ark. App. 639, 2014 WL 5842347. On appellate review, the trial court’s findings are upheld unless they are clearly against the preponderance of the evidence. Stultz v. State, 92 Ark. App. 204, 212 S.W.3d 42 (2005). Because of the lower burden of proof, evidence that is insufficient to support a criminal conviction may be sufficient for the revocation of a suspended sentence. Knotts v. State, 2012 Ark. App. 121, 2012 WL 387852. The appellate courts defer to the trial court’s superior' position to determine credibility and the weight to be accorded testimony. Fleming v. State, 2016 Ark. App. 340, 2016 WL 3522177.
James Irvin, appellant’s probation officer, testified at the revocation hearing. Mr. Irvin testified that Mr. Baney had been charged with aggravated robbery in a ^neighboring county. Mr. Irvin further stated that, although Mr. Baney’s probation fees were current, Mr. Baney had failed to pay any fines or restitution. Mr. Baney had also provided no proof of employment. According to Mr. Irvin, Mr. Ba-ney was living in a camper in Mr. Baney’s parents’ front yard. Mr. Irvin indicated that he had initially accepted this arrangement because Mr. Baney had nowhere else to go, but that he later told Mr. Baney to find a better place to live. Mr. Irvin expressed concern because Mr. Baney was a level four sex offender and there were children living in his parents’ house.
Mr. Baney did not testify at the revocation hearing, but his sister-in-law, Andrea Baney, testified on his behalf. Mrs. Baney testified that she lives in Mr. Baney’s parents’ house. She stated that Mr. Baney has lived in a camper in the front yard since being placed on probation. It was Mrs. Baney’s understanding that this had been approved by Mr. Baney’s probation officer and that Mr. Baney was allowed to live there as long as they locked the doors at night.
At the conclusion of the revocation hearing the trial court found that Mr. Baney had violated his conditions of probation, making these specific findings:
The court finds as a matter of fact that he is living in a residence with a level four sex offender that he has refused to move out of. That he has caught a new charge in another county.
14Mr. Baney argues that there was insufficient evidence to support the trial court’s finding that he violated his conditions of probation, and we agree. The trial court specifically found that Mr. Baney violated his conditions because (1) he refused to move from his current residence, and (2) he was charged with a new crime. However, neither of these findings can sustain the revocation of Mr. Baney’s probation.
In the State’s revocation petition, it alleged as one of the violations that Mr. Baney had failed to “seek out a stable residence.” However, there was no such requirement in Mr. Baney’s written probation conditions. The written conditions provided that “[y]ou must notify your supervising officer in advance of any change in your address,” and further, that “[p]rior approval from a supervising officer is required for you to change or stay away from your place of residence.” In this case Mr. Baney lived in the same place, which had initially been approved by his probation officer, the entire time he was on probation. There is nothing in his conditions requiring him to move to a different, more stable residence if requested by his probation officer. We acknowledge that Mr. Baney’s written conditions also required him not to commit another offense punishable by imprisonment. However, the State did not allege, nor did the trial court find, that his current living arrangement, when combined with his level-four sex-offender status, constituted a criminal offense in violation of that condition. Therefore, the trial court’s finding that appellant’s living arrangement was a violation of his conditions was clearly against the preponderance of the evidence.
The remaining finding by the trial court in support of revocation was that Mr. Baney had been charged with a new crime in another county. However, being charged with a IfiCrime is not in and of itself evidence of committing a crime. In this case appellant’s probation officer testified only that Mr. Baney had been charged with aggravated robbery, with no evidence to demonstrate that Mr. Baney had actually committed the crime. Because there was a lack of evidence that this alleged new crime had been committed, the trial court’s finding of a violation based on a new charge was clearly against the preponderance of the evidence.
Having concluded that the trial court’s findings were clearly against the preponderance of the evidence, we reverse the revocation of appellant’s probation and the resulting sentence.
Reversed.
Gruber, C.J., and Virden, J., agree.
. We note that, although the sentencing order placing Mr. Baney on probation ordered a fine and restitution, his written conditions do not include payment of fines or restitution as conditions of his probation.
. Mr. Baney was not living with a level four sex offender; he is a level four sex offender. | [
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WAYMOND M. BROWN, Judge
I Appellant Randy Grantham appeals the decision of the Arkansas Workers’ Compensation Commission (Commission) finding that he failed to establish that he sustained a compensable back injury while working, for appellee Hornbeck Agricultural Group, LLC . (Hornbeck). On appeal, Grantham argues that the Commission’s decision was not supported by substantial evidence. We affirm.
Grantham began working for Hornbeck in July 2007, processing soybeans. He was promoted to a general-manager in 2011 and supervised three other employees. At the hearing before the ALJ, Grantham testified that he injured his back on October 16, 2013, while placing an‘auger. He described the accident as follows:
On that day, we had a soybean crush facility, which was not really designed to store grain in, but Jon and them had it sitting idle, so we had a company in and change | ?some piping so we could take grain out the side of the building. We had to put an auger underneath a drop pipe that came down, and we were placing that auger that morning, and I had the two Mexican boys, and we put a tarpaulin under it to catch any splash grain that came out the sides, and then they pulled it back to where my feet were. I just was holding it in, and it backed up, and they scooted it back a little bit more, and I backed up a little bit more and I sat it down and when [I] set it on the ground, something popped in my back. I do not know. I was sort of bent over forward at the time.
I picked up about fifty or sixty pounds when my back hurt. It was not an extreme amount of weight. I got into a backward position when I backed my feet up, and it was not a normal position since my hands were extended in front of me. When this happened, my pain was about belt high when it popped, and I have still got the same pain that started with so I do not know what it is, and it felt high in the back. I felt pain go down my left leg and then it started getting more numb. The pain went down the back of my leg, outside my calf and into my foot. I have what they call drop foot, and my left leg is numb, and my ankle is weak. When it occurred, I backed up and went to the scale room. I was working with two Mexican national workers who are Alejandro and Jose, and I did not show them that I was hurt. I have talked with them lately. When I got to the office, I sat in the chair in the scale room and tried to figure out what was hurting so bad and why, and I could not sit. I sat there for a few hours and went home and lay down in bed, took some Tylenol and went to bed.
He stated that he received a text message later- that day from Jon Hornbeck, the manager, informing him that Jeff was about to start hauling corn again. He testified he responded to Jon, saying, “I will contact Tim, and I have pulled something in my lower back. Burleson who is my local doctor cannot get me in until tomorrow.”
Grantham presented to his primary physician, Dr. Stanley Burleson, on October 17, 2013, with complaints of significant back pain and left-leg numbness. Dr. Burleson noted that Grantham had acute back pain and scheduled him for an MRI. The MRI, taken on November 27, 2013, revealed (1) multilevel disc degeneration with annular tears through midline without disc extrusion and (2) foraminal stenosis which appears most significant at |aL4-5. It was noted that the MRI only “partially visualized LI vertebral body.” Dr. Burle-son referred Grantham to Dr. Scott Schlesinger.
Grantham was seen by Dr. Schlesinger on December 9, 2013, and informed Dr. Schlesinger that he had “a mild pain in his lower back for several years but it worsened in 11/2013 while he was lifting a heavy object at work. He was in a car accident in the 1970s which has caused some back pain on and off over the years.” Dr. Schlesinger reviewed the MRI of Grantham’s back and noted the following abnormalities: (1) moderately-severe degenerative changes, L3-4, L4-5, L5-S1; (2) mild-moderate neural foramen stenosis L4-5, L5-S1 bilaterally; (3) mild-moderate lateral recess stenosis from the mid part of L4 to the mid part of L5 bilaterally, left worse than right; and (4) moderately-severe lateral recess stenosis from the mid part of L5 to the mid part of L5 on the left. Dr. Schlesinger ordered x-rays of Grantham’s back, which revealed moderate degenerative findings throughout the lumbar spine. Grantham was diagnosed with leg pain, low-back pain, lumbar spine sten-osis, lumbar degenerative disc disease, and hyperreflexia. Dr. Schlesinger recommended epidural steroid injections and physical therapy. Grantham received the injections but subsequently complained to Dr. Burleson that the injections provided him with no relief. A physical-therapy note dated December 8, 2013, stated that Grantham reported that his injury “is not workers comp,” Dr. Schlesinger noted on January 17, 2014, that Grantham had recurring back pain but that it worsened in November 2013 and had gotten progressively worse with time. Dr. Schlesinger opined,
Although the accident/injury did not or may or may not have caused the actual radiological findings. I believe with a reasonable degree of medical certainty (greater than 50%), that based upon the patient’s history the current complaints are a result of the injury. The injury seems to have caused the onset of symptoms even if the | ¿radiological findings were already present based upon the sequence of events and the historical information provided by the patient.
Grantham subsequently underwent three back surgeries. On November 4, 2015, Dr. Burleson wrote a letter in which he opined that Grantham was “totally disabled” and that no further intervention was warranted due to the failed back surgeries and chronic pain in Grantham’s back. Grantham continued to work for Hornbeck during this time and remained a salaried employee until the company closed in February 2015, at which time Grantham received two weeks’ severance pay. He filed a workers’-compensation claim concerning the injury on July 13, 2015. Up until that point, he had paid for his medical treatment with health insurance provided through Hornbeck. Grant-ham’s claim was denied, and he filed a complaint with the administrative law judge (ALJ) seeking benefits.
A hearing took place on February 26, 2016. Grantham filed a motion to supplement the record on March 7, 2016. Horn-beck objected to the motion. The ALJ sustained Hornbeck’s objection in a letter dated March 18, 2016. The ALJ filed an opinion on May 17, 2016, finding that Grantham had failed to prove that he suffered a compensable injury. The opinion stated in pertinent part:
In this case, the claimant had a long standing history of back symptoms and chronic degenerative changes. In order for the claimant to establish an aggravation of a preexisting condition, a traumatic injury must first be identified. Pearline Williams v. L & W Janitorial, Inc., 85 Ark. App. 1, 145 S.W.3d 383 (2004). Dr. Schlesinger’s report of January 17, 2014, does not identify the traumatic injury that was aggravated or combined with the pre-existing condition. And the use of the wording “did not or may or may not” is insufficient to establish causation. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000), Frances v. Gaylord Container Corp., 341 Ark. 527, 20 S.W.3d 280 (2000). Therefore, it is unclear if the treatment prescribed |5was for a traumatic injury or pre-existing condition. Treatment for stenosis caused by degeneration would not be considered a traumatic injury.
2. The claimant has failed to prove by a preponderance of the credible evidence that he sustained a compensable injury, caused by a specific incident, arising out of and in the course of his employment which produced physical bodily harm, supported by objective findings, requir ing medical treatment or producing disability, pursuant to Ark. Code Ann. § 11-9-102. The claimant has also failed to prove that an injury supported by objective findings aggravated or combined ; with a pre-existing condition, based on Dr. Schlesinger’s report of January 17,2014.
Grantham appealed to the Commission, which adopted and affirmed the ALJ’s opinion. He timely appeals .the Commission’s decision. He argues that the Commission’s decision is not supported by substantial evidence.
In reviewing decisions from the Commission, we view the evidence and all reasonable inferences deducible therefrom in the. light most favorable to the Commission’s findings. When 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. The issue is not whether the appellate, court might have reached a different result from the Commission but whether reasonable minds could reach the result found by the Commission; if so, the appellate court must affirm, Questions concerning the credibility of witnesses and the | ¿weight to be given to their testimony are within the exclusive province of the Commission. Once the Commission has made its decision on issues of credibility, the appellate court is bound by'that decision.
To prove a compensable injury as a result of a specific- incident that is identifiable by time and place of occurrence, the claimant must establish by a preponderance of the evidence (1) an injury arising out of and- in the course of employment; (2) that the injury caused internal or external harm to the body that required medical services or resulted in disability or death; (3) medical evidence supported by objective findings, as defined in Arkansas Code Annotated section 11-9-102(16), establishing the injury; and (4) that the injury was caused by a specific incident identifiable by time and place of occurrence. For purposes of workers’-compensation law, an employer takes the employee as it finds him, and an aggravation of a preexisting noncompensable condition by a compensa-ble injury is, itself, compensable.
The Commission, by adopting the ALJ’s opinion, found that Grantham failed to prove through credible evidence that the injury caused internal or external harm to the’ body that required medical services or resulted in disability, It also found that he failed to prove |7an aggravation of a preexisting injury. In denying Grantham’s claim for benefits, the Commission focused on Dr. Schlesinger’s medical note of January 17, 2014, giving significant weight to his statement that, “Although the accident/injury did not or may or may not have caused the actual radiological findings.” It is the Commission’s duty to weigh the medical evi dence. In this case, the Commission assigned much weight to the statement above and little weight to the statements that followed. We hold that substantial evidence supports the Commission’s finding that Grantham failed to prove physical bodily harm, supported by objective findings, requiring medical treatment . or producing disability.
Affirmed,
Gruber, C.J., and Whiteaker, J., agree.
. January 23, 2014, April 8, 2014, and August 6, 2014.
. Ganus v. St. Bernard’s Hosp., LLC, 2015 Ark. App. 163, 457 S.W.3d 683.
. Willis v. Great Dane Trailers, 2014 Ark. App. 547, 444 S.W.3d 423.
. Id.
. Cedar Chem. Co. v. Knight, 372 Ark. 233, 273 S.W.3d 473 (2008).
. Mack-Reynolds Appraisal Co. v, Morton, 2010 Ark. App, 142, 375 S.W,3d 6,
. (Repl. 2012).
. Ark. Code Ann, § ll-9-102(4)(A)(i).
. Jackson v. O’Reilly Auto., Inc., 2013 Ark. App. 755.
. Loar v. Cooper Tire & Rubber Co., 2014 Ark. App. 240.
. Although Grantham includes several sub-points in his argument, we do not address them because they have no' bearing on the issue of compensability under the specific facts of this case. | [
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PER CURIAM
_JjIn 2005, appellant Jason N. Watson entered a plea of guilty to capital murder and was sentenced to life imprisonment without parole. On January 25, 2016, Watson filed in the trial court a pro se petition for writ of error coram nobis. The trial court held a hearing on the petition and denied it. Watson lodged an appeal from the order, and now before us is his motion to supplement the record with additional evidence that was not included in the co-ram nobis petition that the trial court considered.
We dismiss the appeal as it is clear from the record that Watson could not prevail if the proceeding went forward. An appeal from an order that denied a petition for postconviction relief, including a petition for writ of error coram nobis, will not be permitted to proceed when it is clear that the appellant could not prevail. Millsap v. State, 2014 Ark. 493, at 2, 449 S.W.3d 701, 703, cert. denied, — U.S. -, 135 S.Ct. 2054, 191 L.Ed.2d 960, reh’g denied, — U.S.-, 136 S.Ct. 10, 192 L.Ed.2d 979 (2015). As the appeal is dismissed, the motion to supplement the record is moot.
| PThe standard of review of an order entered by the trial court on a petition for writ of error coram nobis is whether the trial court abused its discretion in granting or denying the writ. Newman v. State, 2014 Ark. 7. An abuse of discretion occurs when the court acts arbitrarily or groundlessly. Nelson v. State, 2014 Ark. 91, 431 S.W.3d 852. The trial court’s findings of fact, on which it bases its decision to grant or deny the petition for writ of error coram nobis, will not be reversed on appeal unless they are clearly erroneous or clearly against the preponderance of the evidence. Newman, 2014 Ark. 7. There is no abuse of discretion in the denial of error coral nobis relief when the claims in the petition were groundless. Nelson, 2014 Ark. 91, 431 S.W.3d 852.
A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000). The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had 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 v. State, 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 v. State, 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 to address 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. Error coram nobis proceedings are attended by a ^strong presumption that the judgment of conviction is valid. Nelson, 2014 Ark. 91, at 3, 431 S.W.3d at 854.
In his petition, Watson raised the following grounds for issuance of the writ: (1) he was mentally incompetent when he entered his negotiated plea of guilty; (2) he was coerced and threatened into entering the plea of guilty; (3) he did not knowingly and voluntarily waive his right to stand trial. Interspersed throughout the arguments were multiple assertions that the evidence was not sufficient to establish his guilt.
First, we have repeatedly held that a challenge to the sufficiency of the evidence is not cognizable in coram nobis proceedings. Wallace v. State, 2016 Ark. 400, 503 S.W.3d 754 (per curiam). Moreover, by pleading guilty, Watson waived any claim that he was not guilty of the charges. Sherman v. State, 2014 Ark. 474, at 4, 448 S.W.3d 704, 709 (per curiam).
With respect to Watson’s claim that a writ of error coram nobis should be issued on the ground that he did not voluntarily enter his plea, any claim that a guilty plea was not entered intelligently and voluntarily is properly brought pursuant to Arkansas Rule of Criminal Procedure 37.1 (2016), not in a petition for writ of error coram nobis. E.g., Nelson, 2014 Ark. 91, at 5-6, 431 S.W.3d at 856 (“[W]e have been clear that error coram nobis proceedings are not a substitute for proceeding under Rule 37.1 to challenge the validity of a guilty plea, nor are the two proceedings interchangeable.”); see also White v. State, 2015 Ark. 151, at 4, 460 S.W.3d 285, 288 (per curiam).
The claims raised by Watson in his petition that were within the purview of the writ were the allegations that he was incompetent when he entered the plea and that the plea 14was coerced. As support for the allegations, Watson appended to his petition the transcript of a part of the fitness-to-proceed hearing that was held before he entered the plea. He alleged that the answers given by the doctor who conducted his mental evaluation on cross-examination by his counsel revealed that the doctor’s finding of competence was questionable. He also appended the transcript of a document labeled “State v. Jason Watson; Foster Family Phone Interviews” and a document labeled “State v. Jason Watson; Mitigation Table.” Both documents contain information about Watson’s life before he committed the offense of which he was convicted. Watson states that the documents attached to his petition were intended as support for the claims in the petition.
As to Watson’s claim that his plea was coerced, the allegation was not sufficient to warrant issuance of the writ because the allegation did not rise to the level of coercion, which is defined as “compulsion of a free agent by physical, moral, or economic force or threat of physical force.” Black’s Law Dictionary 315 (10th ed. 2014); see White, 2015 Ark. 151, at 5, 460 S.W.3d at 288. Watson’s allegations were founded primarily on his statements that he was not mentally competent to enter the plea rather than any claims of force or threats of physical force. The coercion he claimed arose from his counsel advising him that he would get the death penalty if he went to trial. However, we have held that the mere fact that a petitioner’s trial counsel informed him that he could receive a more severe penalty if he went to trial, and thus the petitioner felt pressure to plead guilty by the fear of a more severe sentence, is not coercion. Nelson, 2014 Ark. 91, at 4, 431 S.W.3d at 855.
Watson’s claim, raised in his petition and repeated at the hearing on his petition, that he was not competent at the time he entered his plea also failed to establish that the writ |fishould issue because the claim was not supported with sufficient facts to substantiate the allegation. He again contended that the doctor who conducted the mental evaluation before he entered his plea was not thorough enough in his examination and that the doctor’s findings did not take into account all the evidence that showed Watson was incompetent, including Watson’s history of mental-health problems. He again relied on the doctor’s testimony at the fitness-for-trial proceeding to substantiate the claim that the doctor’s evaluation was lacking. He suggests that the documents attached to the petition demonstrate that the doctor who performed the pretrial mental evaluation should have considered information that could have been obtained from sources other than those the doctor consulted.
The burden is entirely on the petitioner who claims a history of mental defect or illness to overcome the strong presumption that the judgment was valid. Noble v. State, 2015 Ark. 215, at 3, 462 S.W.3d 341, 344 (per curiam). When a petitioner alleges insanity at the time of trial, he must present facts sufficient to demonstrate that there was information not known at the time of trial, or which could not have been known at the time of trial, that could have established that the defendant was incompetent to proceed. The application for coram nobis relief must make a full disclosure of specific facts relied upon as the basis for the writ. Millsap, 2014 Ark. 493, 449 S.W.3d 701. The petitioner’s mere statement that he suffered from mental problems from a young age does not demonstrate incompetence at the time of trial. Noble, 2015 Ark. 215, at 3, 462 S.W.3d 341, 344. The information that Watson relied on in his petition and at the hearing would have, or could have, been known to him at the time he entered the plea. Again, the burden was on Watson to demonstrate Rthat there was information not known at the time of trial, or which could not have been known at the time of trial, that could have established that he was incompetent to proceed. Davis v. State, 2016 Ark. 296, at 5, 498 S.W.3d 279, 282 (per curiam). Watson did not make that showing.
To the degree that any allegation raised by Watson, while couched as a claim for issuance of the writ, was actually an allegation of ineffective assistance of counsel, he did not state a ground for the writ. It is well settled that claims of ineffective assistance of counsel are properly raised under Rule 37.1 and not in a coram nobis proceeding. State v. Tejeda-Acosta, 2013 Ark. 217, 427 S.W.3d 673.
It should also be noted that Watson waited approximately ten years before filing his petition for writ of error coram nobis. Although there is no specific time limit for seeking the writ, due diligence is required in making an application for relief. McClure v. State, 2013 Ark. 306 (per curiam). In the absence of a valid excuse for delay, the petition will be denied. Roberts, 2013 Ark. 56, 425 S.W.3d 771. Due diligence requires that (1) the petitioner be unaware of the fact at issue at the time of the trial; (2) the petitioner could not have, in the exercise of due diligence, presented the fact at trial; and (3) the petitioner, after discovering the fact, did not delay bringing the petition. Id. The requirements are a sequence of events, each of which a petitioner must show to prove due diligence. Wright v. State, 2014 Ark. 25 (per curiam); Anderson v. State, 2012 Ark. 270, 423 S.W.3d 20 (per curiam). Here, Watson did not establish that he had exercised due diligence in bringing forth his claims, and his petition would have been subject to denial by the trial court on that basis. Philyaw v. State, 2014 Ark. 130, at 6-7 (per curiam).
|7Appeal dismissed; motion moot. | [
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GriffiN Smith, O. J.
An indictment charged appellant with “taking*, stealing, and carrying away three machinery belts of the value of $40, the property of John E. Moore, . . . .”
A jury found the defendant guilty of petit larceny and assessed his punishment at one day in jail and a fine of $150.
For reversal of the judgment appellant insists (1) that the evidence is insufficient; (2) that the court erred in giving instruction No. 1, and (3) that a conviction of petit larceny cannot be sustained where the indictment charged grand larceny.
Fifteen instructions were given. None is abstracted. Rule 10 of the Supreme Court places this burden on the appellant in misdemeanor cases. Hence, the second assignment cannot be considered.
Appellant testified that he and Dr. Berryman operated a lumber mill, and he paid “a fellow” $20 for three belts. The seller appeared at the mill about seven o’clock in the morning driving a Chevrolet automobile. In the back of the car were six or eight belts. The stranger explained he had dismantled a mill and said his name was Leroy Harris. Appellant took a receipt for the payment.
John E. Moore testified that the stolen belts were worth $35. He had moved them from one gin to another gin building. Assisted by Reece Gilbert, Moore found the belts at Chapman’s mill. Chapman claimed the property, stating to Moore at one time that the belts were purchased in Little Rock, and at another time that they were bought at a hardware store in Russellville. Moore had retained the serial number of one of the belts and was thereby enabled to make identification. The other two were also identified. Appellant did not mention having bought the belts from a stranger.
Reece Gilbert, deputy sheriff, substantiated Moore’s testimony that appellant claimed to have bought the belts in Little Rock and Russellville. When first confronted with Moore’s loss, appellant did not claim to have dealt with a stranger. On Friday night preceding identification on Monday, Gilbert saw a Chapman Lumber Company or a Berryman & Chapman truck pass through Dover between ten and twelve o’clock. Gilbert’s testimony was supported by J. R. Parker, another deputy sheriff.
Although the evidence was circumstantial it presented questions for the jury. Possession of recently stolen property, where such possession is not satisfactorily explained will support a conviction. There was evidence that appellant told conflicting stories. His explanations were not believed. However, the jury seems to have discounted the value of the' belts as fixed by Moore, in consequence of which the crime was reduced from grand to petit larceny. Appellant cannot complain of this.
Affirmed.
Appellant, as an exhibit to his testimony, introduced invoice from a Russellville hardware store showing purchase of belts amounting to $6.30. They were of a different size to those taken from Moore.
Trammell v. State, 193 Ark. 21, 97 S. W. 2d 902; Morris v. State, 197 Ark. 778, 126 S. W. 2d 93; Fletcher v. State, 198 Ark. 376, 128 S. W. 2d 997. | [
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Kirby, J.,
(after stating the facts). The law is well settled that the publication of the ordinances of the city or town council establishing the improvement district, as required by the statute, is mandatory and essential to the creation of a local improvement district, the publication of the notice in the manner prescribed by the statute being jurisdictional, and without which the district cannot be created. McRaven v. Clancy, 115 Ark. 163, 171 S. W. 88; Voss v. Reyburn, 104 Ark. 298, 148 S. W. 510; Crane v. Siloam Springs, 67 Ark. 30, 55 S. W. 955; Norton v. Bacon, 113 Ark. 566, 168 S. W. 1088.
This case is unlike McRaven v. Clancy, supra, wherein a lot which was included in the petition for and ordinance creating the district was omitted from the publication of the ordinance, and Voss v. Reyburn, supra, wherein one-half of two blocks containing 12 lots was omitted from the publication of the ordinance, and such omissions held to be material variations from the petitions and ordinances as passed, destroying the validity of the attempted organization of the districts.
Here no territory was omitted from the ordinance as published, but only an alley, the paving of which was provided for, described as “between lots 1 and 2, block 3, from Iowa Street south to tbe alley running east and west across block 3,” the alley in fact being between lots 2 and 3, block 1, there being no alley between said lots 1 and 2, block 3. The alley is shown by the plat exhibited with the complaint and located between lots 2 and 3, in block 1, as correctly described in the petition and ordinance, which is the only alley running south from Iowa Street in the district. This incorrect location of the alley in the published ordinance could not have had effect to authorize the opening* and laying out of such an alley in the block where none existed, nor could it have misled the commissioners in any way, nor prevented their making the improvement of the alley as laid out in fact and correctly described in the petition for and the ordinance creating the district, it being the only alley in the district for improvement leading south from Iowa Street, as designated, in the publication of the ordinance even, and the variance cannot be regarded as material.
Neither can the other alleged variance in the boundary of the district in the publication of the ordinance from the boundary correctly described in the petition for and ordinance creating the district be regarded as sio material or important as to affect the validity of the organization of the district. As already said, it excludes no territory from the district as created by the ordinance, but includes a small triangular piece of School Street and a part of the southeast corner of lot 3, block 5, Lambert’s addition, outside of and immediately north of lot 4, block 5, inside of the district. The amount of the territory included is negligible, being only the small sfirip taken in by extending the line diagonally* across School Street to the northwest corner of lot 4, block 5, Lambert’s Addition, 57.2 feet wide, instead of across said street to the northeast corner of said lot 4 and thence straight west to the northwest corner of lot 4. The description of the boundary as published and as it should have read is as follows:
“Thence across School Street to the northwest corner of lot 4 of block 5 of Lambert’s Addition; thence west to the northwest corner of lot 5 of block 5 of Lambert’s Addition,” when said description should have read, and so read in the original petition and ordinance: “Thence across School Street to the northeast corner of lot 4 of block 5 of Lambert’s Addition; thence west to the northwest corner of lot 5 of block 5 of Lambert’s Addition. ’ ’
A property owner within the district seeking to ascertain its true boundaries could not have been misled by this description in the published ordinance, and on comparison thereof with the correct description in the original petition for and ordinance as enacted by the council, would easily have perceived that designating the northwest corner of lot 4, block 5, Lambert’s Addition, instead of the northeast corner of said lot as correctly included in the ordinance, was but the result of a clerical misprision, and certainly the owner of said lot 4 could not have been misled about its inclusion in the district, since both descriptions showed it to be within the boundaries thereof. These patent clerical or typographical errors in the published description of the boundaries of the district did not invalidate the ordinance creating it.
The chancellor erred in holding otherwise, and the decree is reversed, and the cause remanded with directions to sustain the demurrer and dismiss the complaint for want of equity. | [
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Humphreys, J.
Appellee brought this suit against appellants in the circuit court of Mississippi county, Chickasawba district, to recover damages in the sum of $3,'651.75 to a certain tract of land owned by him containing 28.61 acres, particularly described as the fractional south half, northwest quarter, and fractional northwest quarter, southwest • quarter, section 6, township 13 north, range 9 east', in .Mississippi county, Arkansas, by reason of the construction of a new levee in Drainage District 16 in said county alleging in part that in the construction thereof appellants created a “bottle neck” above his land in locating and building the new levee close to the old levee so as to divert surface water and high water and throw same upon his land at a greatly accelerated rate and in greater volume than before; and by tying the new levee into a road embankment below said land, so as to place said land in a pocket between the old and new levee resulting in damming up and impounding surface and high water, thereby diverting and backing same onto his. land.
Appellants filed an answer denying these and other allegations contained in the complaint.
The cause was submitted to a jury upon the pleadings, evidence introduced by both parties and the instructions of the court resulting in a verdict and judgment against appellants for $700, from which is this appeal.
Appellants in briefing the case have made a statement gleaned from the pleadings and evidence adduced on the trial of the cause which is illuminating and helpful to an understanding of the controversy which we incorporate with a few changes in this statement rather than attempt a statement ourselves. Appellee does not suggest that the statement is incorrect in any material particular. The statement is as follows with the exception of a few changes' made by us:
“Drainage District No. 16 was organized in 1916 under the Alternative Drainage District Acts. It comprises an area of 58,000 acres, which is that portion of the Chickasawba district of Mississippi county, lying west of Big Lake and the right-hand chute of Little River. Soon after the creation of the district, appellants constructed a levee along the western banks of Big Lake and the right-hand chute of Little River which proved to be inadequate.
“In 1927, an extraordinary flood created grave damages for both the inhabitants and the lands of this section of Mississippi county. Rain waters from southeast Missouri, a basin with a watershed of more than 2,000 square miles, poured into Big Lake with great velocity. The levee of appellant drainage district, as well as the levee on the east side of Big Lake and the right-hand chute of Little River, that Drainag*e District No. 17 had constructed, were inadequate. The crowns and bases of the levees were too small; the barrow pits were too close to the levees; and the floodway between the levees was too narrow. In 1933, 1935, and 1937, there were more high waters; the United States engineering department, and all parties concerned, were convinced that a new levee was necessary to protect the lands of the district. Although there was no levee break in 1937, more than four-fifths of the lands in the district were covered by flood waters. This water came around the north end of the levee, from Missouri, and from crevasses in the levee south of the boundary line of the district. During each flood threat, thousands of dollars were expended to keep the levee from breaking, both by appellant district and Drainage District No. 17. In fact, Drainage District No. 17 had suffered from actual levee breaks. The gravity of the situation became apparent to Congress which had.long recognized that this alluvial valley, of which Mississippi county is a part, deserved the same protection from flood waters as the lands immediately adjacent to the Mississippi River. In 1937, Congress enacted the Overton Flood Control Act, which included Big Lake and the right-hand chute of Little River in the Mississippi River flood control program. The act provided that the United States Government would construct new levees along these navigable streams, if the drainage districts would provide rights-of-way. The United States engineers prepared plans for new levees, and as soon as these were submitted to the commissioners of both drainage districts, they agreed to co-operate with the Government, and arranged with the Reconstruction Finance Corporation for loans in order to pay landowners for the rights-of-way. The sketch will show that the new levees broaden the width of the floodway on right-hand chute of Little River from a distance of a quarter of a mile to about a mile at the nearest point. These levees will now take care of a volume of about 30,000 feet of water a second and a maximum flood with an allowance of three feet above the highest expected crest of the water.
“Appellee is the owner of a small 28.61 acre tract of land that lies in a ‘V’ shape along a gravel road, state highway No. 77, and angles back against the old levee, bordering the right-hand chute of Little River. This tract is shaded on the rough sketch, and is colored blue on one of the exhibits. The land is not in the Chickasawba district, but lies in the Osceola district of Mississippi county. It is neither in Drainage District No. 16 nor any other drainage district. Appellee has paid no drainage taxes of any kind. It so happens that the old levees along the right-hand chute of Little River were nearer to each other at the point of the land in suit than at most other places. The new levee-on the west side of the river is about one-half mile from the land in suit, and the floodway at this point is now a mile in width.
“As has been indicated, the new levees have been completed on both sides of the right-hand chute of Little River, within the boundaries of appellant drainage district and Drainage District No. 17. During flood times, the waters of the right-hand chute of Little River, within the boundaries of appellant drainage district and Drainage District No. 17 may flow unimpeded from the Missouri line into Big Lake and southwesterly into the St. Francis River. The land in suit and all other lands between the new levees will be covered by the right-hand chute of Little River as it spreads outside its banks, but when the flood waters subside, these lands will drain according to their natural topography. The old levee has already been leveled to the ground in many places, especially where the construction of the new levee was sufficiently close to the old levee so that the dragline could utilize that soil. In addition, appellants have offered to crevasse the old levee at any place where the landowner wants it done. Appellants have not wished to leave any obstruction in the way of the drainage of lands adjacent to the river and now lying between the new levees. The old levee along the tract of land of appellee is still standing intact, solely because he has insisted on leaving it like it is.”
Attached to the statement is a map of Drainage District No. 16 showing the location of the old levee as well as the new levee bordering on the right-hand chute of Little River and also the old and new levees on the east side of the right-hand chute of Little River and for the purpose of showing the location of the land in question and the situation before and after the new levees were built.
The undisputed evidence reflects that when the first levee was built on the west side of the right-hand chute of Little River and Big Lake, appellee’s land was on the west side of the levee and protected, and that the land was situated on a navigable stream; that this levee proved insufficient to protect appellee’s land and lands in Drainage District No. 16 from flood waters, but that this levee which proved to be insufficient to protect the lands in Drainage District No. 16 was located and built west of the old levee from one-half mile to a mile from the navigable stream which left appellee’s land, which was not included in Draináge District No. 16, outside the levee. This court said in the case of McCoy v. Board of Directors of Plum Bayou Levee District, 95 Ark. 345, 129 S. W. 1097, that (quoting syllabus 2 and 3):
“A levee district may rightfully build its levee across depressions, swales and low places so as to prevent the escape of flood water from a river into surrounding low lands sought to be protected, though it has the effect of raising the water higher on lands between the levee and river, without becoming liable to the owner of such intervening lands so damaged.
“A levee district, which builds a levee so as to protect lands from overflow of the waters of a stream at floodtime, will not, under Const. 1874, art. 2, § 22, providing that private property shall not be ‘damaged for public use without just compensation therefor,’ become liable for injuries to land lying between the levee and the river resulting from the flood water being raised higher between the levee and the river than before the levee was constructed.”
This rule was reiterated and adhered to in the cases of City Oil Works v. Helena Improvement Dist. No. 1, 149 Ark. 285, 232 S. W. 28, 20 A. L. R. 296, and Sharp v. Drainage District No. 7, 164 Ark. 306, 261 S. W. 393.
We understand that the same rule applies where a new levee is erected that governs in the erection of an original levee and that it was applied by this court in the case of City Oil Works v. Helena Improvement Dist. No. 1, supra, where the new levee which was erected placed the lands between it and the old levee. In the instant case we understand that Drainage District No. 16 in the erection of the new levee was not and is not liable to any property owner for injuries to his lands lying between the levee and a navigable stream on account of the flood waters being raised higher than before the levee was constructed. In the instant case the undisputed evidence shows that no dam was built across the stream which caused the flood waters to back up and remain upon appellee’s land. The new levee did not in any way constitute a dam in the navigable stream that interfered with the flow of waters therein. It only prevented the overflow waters in the navigable stream from running out into and onto lands west of the levee. Appellee, recognizing the fact that the new levee was not built across the navigable stream so as to obstruct the flowage therein from flood waters, alleged and attempted to prove that by the location of the new levee in relation to the old levee a “bottle neck” was created above his land resulting in surface water and high water being diverted and thrown upon his land at a greatly accelerated rate and in greater volume by reason of tbe obstruction of the natural drainage on account of tbe new levee aiid crevasses made in tbe old levee above tbe “bottle neck.” Appellee stated on direct examination that tbe old and new levees came closer together a short distance above bis. land which formed a kind of “bottle neck” and threw water upon his land at a faster rate than before, but on cross-examination the following questions and answers appear in his testimony:
“Q. You said something about the two levees being there and causing'the water to rush through over your land at a faster rate, is that right? A. I didn’t say that.”
He also said that he did not want the old levee cut, but wanted it left as it was. The court then asked him whether he wanted it cut or whether he did not and he said that he did not.
We think the testimony with reference to the “bottle neck” is so uncertain and indefinite both as to the location and width thereof that it would not authorize anyone to say that it caused water to flow faster on appellee’s land and to stay longer than before the new levee was built. It certainly did not have the effect of raising the water level on appellee’s land and the raising of the water level was a damage, if any, for which he could not recover from the district. That is a damage which, if sustained, he must bear himself on account of being a riparian owner of land. In flood times, it would be impossible to separate any damage growing out of the construction so as to form a “bottle neck” from damage resulting from construction of the levee which raised the water level. Any conclusion the jury might reach would be entirely conjectural, so we do not think the evidence relating thereto and the effect thereof is substantial. In other words, there is no substantial evidence in the record sustaining any particular damage to the land on account of the “bottle neck” or the amount thereof. ! ■ |
Again, it being undisputed that appellants constructed no dam across the navigable stream so as to back water upon appellee’s land, appellee bas alleged and attempted to prove that water was diverted npon, impounded npon and backed npon appellee’s land by the action of appellants in “tying” the new levee into a road embankment below appellee’s land, making the embankment a continnation of the new lev.ee and putting the land in a pocket between the two levees and the high road embankment. Appellee on direct examination testified as follows:
“Q. Bnt that road does tend to hold the water on yon? A. Yes, sir, it does. Q. And that was true'before the new levee was constructed just as it is now? A. Yes, sir. No, it wasn’t. The new levee was tied into the hard road. That is what made it bad until the highway department cleaned it out.”
Appellee’s own testimony is that the tying of the new levee into the hard road made it bad until the highway department cleaned it out, and the other evidence in the case shows that no permanent damage resulted to appellee’s land; that the road always blocked the water there to some extent; that during* last summer when the levee was built to the road, if there had been proper openings the water could have gotten out more quickly. We do not think appellee’s proof reflects that tying the new levee into the old hard-surface road met the allegation that a dam had. been erected across the navigable stream below appellee’s land so as to back water in times of flood over appellee’s land so as to injure it. In the case of Sharp v. Drainage District No. 7, supra, the court held that a permanent dam constructed across a navigable stream at the end of a levee so as to back water upon the land involved in that case was an exception to the general rule that one who buys or owns lands adjoining a navigable stream which overflows takes the land subject to that burden of servitude. The evidence in this case does not bring it within the exception announced in the case last referred to. We think the undisputed evidence in the instant case shows that the only damage the land sustained by reason of the construction of the new levee was a raising of the water level during periods of flood and high water. This was a damage, if any, which appellee himself must hear on account of his land being situated upon a navigable stream. The evidence does tend to show that after the water level was raised on account of the' construction of the new levee it required a greater length of time for the flood waters to recede and resume their natural flow within the banks of the stream. According to this record the only permanent damage appellee sustained was that the water level was raised on account of the construction of the new levee and because his land had been left out or on the river side and that was a burden or servitude upon the land on account of its location. We think a fair construction of this record is that there is no substantial evidence to show that any permanent damage resulted to appellee’s land other than the damage sustained by reason of the water level' being raised on account of the construction of the new levee. Therefore, the verdict and judgment are unsupported by substantial evidence.
In this view of the record, it is unnecessary to discuss the measure of damages applicable in case appel-lee’s land had been injured or damaged other than by the raising of the water level in the construction of the new levee.
There being no issue for the jury, the court should have dismissed the action upon the conclusion of the evidence.
The judgment is, therefore, reversed, and as the case has been fully developed the same is dismissed. | [
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Per Curiam.
This proceeding is a continuation of the litigation reflected in the following opinions of this court: Terry v. Harris, ante p. 60, and Terry v. Harris, ante, p. 174, in which there was an opinion per curiam.
It appears that, upon the rendition of the opinion per curiam, supra, the contestant, Hays, filed a second or substitute complaint to which there was attached jurisdictional affidavits complying with the requirements of § 3772, Crawford & Moses’ Digest. A motion was sustained in the court below to dismiss this second complaint upon the ground that it had not been filed within the time allowed by law, and, upon that motion being sustained, the circuit court made an order dismissing the suit for that reason.
The contestant has applied to us for a writ of mandamus to compel the circuit judge to proceed with the trial of the cause. Upon oral argument before us, it was agreed by the parties hereto that this proceeding be treated as an appeal from this order of the- circuit court, and wé are asked by both parties to decide the case upon its merits. We have for decision therefore the question, whether this second complaint was filed within the time allowed by law.
The applicable statute is § 3772, Crawford & Moses’ Digest, which reads as follows: “A right of action is hereby conferred on any candidate to contest the certification of nomination or the certification of vote as made by the county central committee. The action shall be brought in the circuit court. If for the office of representative or a county or township office, in the' circuit court of the county; and if for a circuit or district office, within any county in the circuit or district wherein any of the wrongful acts occurred; and if for United States senator or a State office, in the Pulaski Circuit Court. The complaint shall be supported by the affidavit of at least ten reputable citizens, and shall be fil&d within ten days of the certification complained of, if the complaint is against the certification in one county, and within twenty 'days if against the certification in more than one county. The complaint shall be answered within ten days.”
It will be remembered that the original complaint has been dismissed, and this second or substituted complaint was filed much later than twenty days after the certifica tion of the vote as made by the respective county committees, but within less than twenty days after the chairman and secretary of the State Central Committee had cast up such returns based on said certification and had certified the congressional nominee to the State Election Board, as required by the opinion delivered October 30, 1933.
Section 3772, Crawford & Moses’ Digest, copied above, applies alike to contests for county, district and State offices. The- only difference, in respect to the time within which such contests must be instituted, is that in eases of contests of “the certification complained of” for nomination for county offices, the suits must be instituted within ten days, whereas such suits in reg’ard to the “certification in more than one county” shall be begun within, twenty days after such certification. Obviously, the right of action conferred by the statute to contest the certification of nomination or the certification of the vote means the same thing in contests for nominations for county offices as in cases of contests for district or State offices. The only distinction made by the statute is in the difference of time within which such contests must be instituted.
This court had occasion in the case of Wilson v. Land, 166 Ark. 182, 265 S. W. 661, to construe the provisions of the statute authorizing contests for nominations, and to determine whether the provisions in regard to contesting certificates of nomination operated to extend the time within which a contest must be brought to contest the certification of the vote by the county committee, and it was - expressly held that the limitation of the time within which a contest of the certification of the votes must be instituted was not extended by the provi sion of the statute that there might be a contest of the certification of the nomination.
The facts in the case of Wilson v. Land, supra, were: The county central committee of Jefferson -County met on August 15, 1924, and canvassed the returns of the election held in that county and filed with that committee, as required by law. This committee ordered that the nominees be certified to the county convention, ivhich was to meet on August 18, 1924, it being intended thereby to have the county convention certify the nomination pursuant to the tabulation of the county committee previously made. The county convention was held on August 18, and a certificate of nomination for the office of county treasurer was awarded to the candidate whose nomination was later contested. This contest was filed on August 26, 1924, in proper form, accompanied by the jurisdictional affidavits. It is obvious that this was within ten days of the date upon which the nomination had been certified, but was one day more than ten days after the certification of the vote. Upon these facts it was contended that the contest had been instituted within the time limited by law, the contention being there made, as it is here, that a contest might be instituted within ten days of either the certification of the vote or the certification of the nomination.
'But, in overruling that contention, it was there said.: “As we have already seen, the right to contest a primary election is purely statutory, and the Legislature may confer it upon such terms as it sees fit. Thus it will be seen that a right of action is given any candidate to contest the certification of vote as made by the county central committee. The statute is unambiguous in this respect, and it was evidently the intention of the Legislature to provide for a speedy hearing and determination of a contest. In our opinion, it was not necessary, under the statute, that contest proceedings should be delayed until a certificate of nomination had been actually issued by either the county convention or by the county central committee. We think that, when the county central committee has canvassed and tabulated the votes, and it is ascertained by this canvass and tabulation which candidate has received the greatest number of votes, the opposing candidate may at once, and must, within ten days thereafter, begin his contest proceedings although no certificate of nomination has been issued.”
It was there held that, inasmuch as the contest must be instituted within the time limited by law (which, in the case of county offices, is ten days and in the case of State and district offices it is twenty days), there was no addi tional extension of time, because the statute conferred the right to contest the certification of the nomination. In other words, any contest, which challenges the canvass and tabulation by the county committee or committees, must be instituted within the timé limited after that action had been taken, and was not extended by the right which was conferred to contest the certification of the nomination as well.
If effect is given to this decision, it follows that any suit which challenges the action of the county committees must be brought within ten days after such action in the case of county offices, and within twenty days in the case of district and State offices.
Now, it is easily conceivable that a county convention, in the case of a county office, might take such action in regard to the vote as canvassed and tabulated by the county committee as to change the result ascertained and declared by the county committee, in which event that action of the convention might be contested, and a suit for that purpose could be brought within twenty days after that action was taken. So, here, it appears, from the opinion in the case of Terry v. Harris, involving this identical election, the State convention, in ordering the election here contested, has provided that “the returns of the election shall be made and certified to the secretary of the State 'Central Committee within the time after said special primary election is held as is now provided by law for such returns, and certification made following general primary elections. The chairman and secretary of the State Central Committee will cast up such returns based on said certificates and certify the nominee to the State Election Board.”
Now, we do not understand it to be alleged that the executive officers of the State committee have taken any action or have done anything, except to perform the ministerial duty of casting up the returns based on the certificates delivered to them., as required by the resolution of the State committee pursuant to and under the authority of which the election was held. Had it been alleged that these executive officers of the State commit tee had fraudulently or erroneously performed this ministerial duty, that action would be the subject of contest, and such contest could be instituted within twenty days after the action had been -taken.
But it is alleged only, as we understand the record before us, that these executive officers have only discharged this ministerial duty, and there is no allegation that they have done any act which itself affords ground for contest.
On the contrary, it is obvious that the contestant now seeks, as he sought in his original suit, to question the votes cast in the various counties of the Congressional District. as compiled and tabulated by the respective county committees. *
This can not be done under the interpretation given § 3772 in the case of Wilson v. Land, supra, for, as was said in that case, it was not necessary under this statute that the contest proceeding should be delayed until certification of nomination had actually been issued by the agency clothed with that authority.
The circuit court was correct, therefore, in holding that this second suit was not filed within the time allowed by law, and it was properly dismissed for that reason. | [
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Per Curiam.
Petitioner Terry prays a writ of mandamus to compel the circuit court of Pulaski County, before which tribunal an election contest is now pending, to require certain testimony to be admitted; to which petition the presiding judge has responded that the testimony in question is believed to be privileged, and that he is therefore without authority to compel its production.
The question arises upon the following facts: Petitioner Terry has been certified as the Democratic nominee for the office of congressman from the Fifth Congressional District, and Hays, his opponent in the primary election, is contesting the nomination. It is conceded that the contest may be instituted only upon the affidavit of ten qualified Democratic electors of that district supporting the allegations of the complaint, charging facts sufficient to show that the contestant — and not the contestee — received a majority of the legal votes cast in the primary election which is-under review. It is conceded also that, under the rules of the party holding the primary, the affiant, in addition to possessing the qualifications of an elector, shall not have voted against any regular party nominee at any election held within two years prior to the primary election under contest. This affidavit, which is required by § 3772, Crawford & Moses’ Digest, is therefore a jurisdictional prerequisite, without which the right of contest does not exist.
The contestant filed an affidavit in proper form, signed by twenty-five persons, who averred their eligibility to make the jurisdictional affidavit; and the contestee has put in issue the eligibility of affiants by alleging that, within less than two years prior to the holding of the primary under contest, these affiants, or more than fifteen of them, had voted against a Democratic nominee, and that therefore the complaint was not supported by ten eligible affiants as required by law. If this be true, the contest must'be dismissed for that reason.
The trial court held that it was permissible to show that the affiants had voted against a Democratic nominee within the time limited by the party rules, and were therefore ineligible to make the affidavit, and that the affiants might be asked how they had voted, but could not be required to answer, for the reason that their ballots were secret, and that it was their privilege to preserve this secrecy, unless they waived the privilege. It is prayed by this proceeding to require the affiants to answer such questions as may be asked them touching their qualifications to make the jurisdictional affidavit, and to have produced the ballots alleged to have been cast in opposition to the Democratic nominee.
It was held, as respondent points out, in the case of Dixon v. Orr, 49 Ark. 242, 4 S. W. 774, that: “The testimony of voters who participated in the election upon the point for whom their ballots were cast is admissible. But the secrecy of the ballots is established by law, and a qualified elector cannot be compelled to disclose for whom he voted. It is only when he chooses to waive his privilege that his evidence can be had.” "Whether this rule now applies, we do not decide.
We are of the opinion that the affiants here called as witnesses have waived their privilege to have their ballots kept secret. They have made themselves essential parties to this litigation by doing- the thing without which there could be no contest of the election, that is, by supporting with their affidavit the allegations of the contestant’s complaint. Having thus made themselves parties to this proceeding by alleging their eligibility to make the essential affidavit, they have waived such privilege as the law conferred.
The contestee therefore has the right .to examine these affiants upon their qualification to make the jurisdictional affidavit, and to inquire of them whether, within the time specified by the party rules, they have opposed a party nominee, thereby rendering themselves ineligible to make the affidavit. The testimony of the affiants themselves is admissible, and we think this testimony may be corroborated or contradicted by the production of the ballots, the casting of which is alleged to have disqualified them, or the ballots may be offered as original evidence.
The writ of mandamus will therefore be awarded as prayed, and the trial court is directed to permit the affiants to be examined upon their eligibility, and, if necessary, to produce their ballots. Authority for this ruling is furnished by the case of Giboney v. Rogers, 32 Ark. 462, in which case the facts were as follows: Giboney was under indictment for a felony, and he wished to take depositions of witnesses residing out of the State. Upon the refusal of the trial court to make the necessary order to enable the defendant to take the depositions, he applied to this court for a writ of mandamus requiring the trial court to make the order. Having concluded that the defendant was entitled to this testimony, it was ordered in the case cited that a writ of mandamus issue to the trial judge requiring him to make the necessary order for that purpose. So, here, if it be true that the affiants are not eligible to make the supporting affidavit, that may be shown, and the writ of mandamus will be issued as prayed.
It is the opinion of Mr. Justice Smith that the questions here disposed of have been prematurely decided.
Counsel for contestant ask us to decide whether all persons who voted for the independent candidate in the July 18 election may be required to appear and testify as to how they voted and whether the production of their ballots may be required. We do not decide these questions, nor whether such a vote is a disqualification. These are questions to be decided by the trial court, which may be reviewed only by appeal to this court. | [
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Smith, J.
Separate suits were brought by plaintiffs, who alleged that, prior to 1926, there existed a mutual insurance company known as the Mutual Aid Union, which, in January, 1926, surrendered its charter to the State, 'but, before doing so, entered into a contract with the Unionaid Life Insurance Company, whereby that company reinsured its membership. The complaint in each case alleged that, after reinsuring’ the members of the Mutual Aid Union, the Unionaid Life Insurance Company had raised the premium on the certificates of insurance above that provided for in their original contracts, and these suits were brought to recover damages for this alleged breach of contract, the actions being apparently based on the rule announced by this court in the case of Mutual Relief Assn. v. Ray, 173 Ark. 9, 292 S. W. 396. Service, óf summons was had in each case on the defendant at its home office in Benton County. The summons issued in each case out of the office of the clerk of the circuit court of Cleveland County, addressed to the sheriff of Benton County, and required the defendant to appear and answer in Cleveland County.
The defendant insurance company appeared specially, and filed a motion to quash the service of the summons on the ground that the circuit court of Cleveland County was without jurisdiction to try a damage suit against the insurance company located in Benton County and having no agent for service in that county, and upon service procured through the sheriff of Benton County. Attached to the motion was a certified copy of the articles, of incorporation of the defendant, Union-aid Life Insurance Company, showing that it had been organized under the provisions of act 137 of the Acts of 1925 (Acts 1925, page 390). This is an act entitled “An act providing for stipulated premium insurance companies operating on the stipulated premium plan, and regulating same.” The trial court overruled this motion, and, the defendant declining to answer or plead further, judgment was rendered against it, and this appeal has been prosecuted to reverse that judgment.
It is earnestly insisted that there is no authority under the statute to sue the appellant, a domestic insurance corporation, except in the county of its residence, under the provisions of the act under which it was created, to-wit, act 137 of the Acts of 3925. This act, which provides that it shall he in force from and after its passage, contains no provision concerning suits against companies organized pursuant to its terms.
The articles of incorporation of the appellant company, filed with its motion to quash the service, show that it has a capital stock of $50,000; that its principal place of business is in Rogers, Benton County, and that it was formed for the purpose of talcing insurance on the lives of individuals on the “stipulated premium plan, with a stipulated premium as defined and regulated herein.”
There was passed at the same session act No. 139 (Acts 1925, page 405), entitled “An act to define assessment life, health and accident associations or companies, industrial insurance companies, to provide how same may be organized and transact business in this State, for proper regulation of same, and for other purposes.” The last section of this act provided that: “Nothing in this act shall be construed to apply to or affect fraternal benefit associations, farmers’ mutual aid associations, reciprocal or inter-insurance exchanges, nor to mutual insurance companies operating on a legal reserve basis, other than to industrial insurance as herein provided. This act to go into effect six months after its passage.”
Paragraph A of § 3 of act 139 reads as .follows: “Level or stipulated rate assessment associations, companies or corporations are defined as those corporations granting insurance benefits on the assessment plan, and which collect from their membership a level or stipulated monthly, quarterly, semi-annual or annual assessment or premium, which assessment or premium is not made contingent upon the happening of a certain event but is based upon stated periodical rates or charges estimated to be sufficient for the payment of all claims and expenses.”
Evidently the appellant company is such a company as the language just quoted refers to.
By § 15 of act 139 it is provided that in all actions against assessment or mutual insurance' companies or the bonds of such companies, by any policyholder or beneficiary, suit may be brought in any county in the State where such 'company has its principal office or place of business. This § 15 was amended by act No. 194 of the Acts of 1927, page 663, to read as follows: “In any action on-any claims arising or accruing under policies of insurance or membership certificates, against assessment or mutual insurance companies,” or the bondsmen of such companies, the suit may be brought in any county in tlie State where the plaintiff, or any one of the plaintiffs, in snch action may reside. ■
Construing these acts tog-ether, we are of the opinion that it was the intention of the Legislature to make all of these companies liable to respond to a suit brought in the county in which the plaintiff resides, in any action on any claim arising or accruing under policies of insurance issued by such companies. It remains therefore only to determine whether the instant suits are actions on claims arising or accruing under policies of insurance. And we think they are.
Webster’s New International Dictionary defines a “claim” as follows: “A demand of a right or supposed right; a calling on another for something due or supposed to be due; an assertion of a right or fact.” It is further defined as: “A right to claim something; a title to any debt, privilege,-or other thing in possession of another; also a title to anything which another should give or concede, or confer on, the claimant.”
.The instant suits are predicated upon the allegation that the defendant has breached its contract of reinsurance, and this is a claim arising- or accruing under a, policy of insurance; and we conclude therefore that the motion to quash was properly overruled, and that judgment is affirmed in each case. | [
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Johnson, C. J.
This appeal brings into question the constitutionality of act 278 of the General Acts of 1933. The trial court held the act constitutional and valid, and this appeal is prosecuted therefrom.
Act 278 of 1933, in effect, provides: Section 1 amends § 5673 of Crawford & Moses’ Digest by giving to property owners, within the district, 90 days in which to make payment of past-due assessments instead of 30 days, as provided in § 5673 of Crawford & Moses’ Digest; also it reduces the penalty for nonpayment from 20 per cent, to 3 per cent.
Section 2 of said act gives to property owners six months in which to answer the complaint, after suit is instituted, instead of 5 days, as provided in § 5678 of Crawford & Moses’ Digest.
Section 3 of said act gives to nonresident landowners six months after publication of notice to file answer, instead of fifteen days, as provided in § 5679 of Crawford & Moses’ Digest.
Section 4 of said act gives to the chancery court wherein the suit is pending, power to grant to the property owner twelve months in which to pay the judgment or decree rendered, instead of ten days, as provided in § 5684 of Crawford & Moses’ Digest.
Section 5 of said act is the emergency clause, and directly repeals §§ 5686, 5687, 5688 and 5689 of Crawford & Moses’ Digest. The sections of Crawford & Moses’ Digest directly repealed by said act are to the following effect: § 5686 provides for the advancement of all causes pending in the Supreme Court wherein the foreclosure of assessments of benefits are involved. Section 5687 of Crawford & Moses ’ Digest gives to any aggrieved owner appealing only twenty days in which to file an authenticated transcript of the proceedings. Section 5688 of Crawford & Moses’ Digest restricts the record on appeal to such matters as may affect the property of the one so appealing. Section 5689, Crawford & Moses’ Digest, restricts the right of appeal to those who perfect the transcript of the record within twenty days from the date of rendition of the decree.
The contention urged is that act 278 of 1933 violates § 17 of article 2 of the Arkansas Constitution of 1874 and § 10 of article 1 of the Constitution of the United States, which sections provide against impairment of contract. Stated another way, appellant contends that the State Legislature is without authority to amend or repeal the sections of the digest referred to for the reason that they were the law at the time the district bonds were issued and sold.
In considering . the important question here presented, it is necessary that we take into consideration the economic conditions existing in this State at the time act 278 of 1033 was enacted. The conditions sought to be alleviated should be considered as a part of the enactment itself. At the time of the enactment, Arkansas was in the midst of the worst depression any member of this court has ever experienced. Thousands of home owners in the State were'without employment, and the bare necessities of life, because thereof, were denied them and their families. All real property in this State was without market value, the net result being that in many instances a five or ten thousand dollar home was sacrificed at public sale for from ten per cent, to twenty-five per cent, of its intrinsic value. The charitable spirit of the members of the Legislature must be commended by all, as the gravity of the question considered by them cannot be gainsaid or denied.
It must be remembered that all political power is inherent in the people, and the State Legislature has the absolute right to invoke this power in all cases except in such as may be prohibited by constitutional mandate. Section 1 of article 2 of the Arkansas Constitution "of 1874 provides: “All political power is inherent in the people, and government is instituted for their protection, security and benefit; and they have the right to alter, reform or abolish same in such manner as they may think proper.” Section 22 of the same article provides: “The right of property is before and higher than any constitutional sanction.” It will thus be seen that, by constitutional mandate, all political power in this State is reserved in the people, except such as may be expressly prohibited by constitutional mandate.
In the State v. Chester Ashley, 1 Ark. 513, this court expressly held: “A State Legislature can exercise all power that is not expressly or impliedly prohibited by the Constitution; for whatever powers are not limited or restricted they inherently possess as a portion of the sovereignty of the State.”
. The constitutional doctrine thus announced has been consistently followed by this court up to the present time. Bush v. Martineau, 174 Ark. 214, 295 S. W. 9. All legislative enactments are presumed to be constitutional and valid until it is otherwise made to appear. Patterson v. Temple, 27 Ark. 202.
“Neither should a statute be declared unconstitutional unless there is a clear incompatibility between the act and the Constitution.” Eason v. State, 11 Ark. 481.
“All doubts should be resolved in favor of the constitutionality of a statute.” Duke v. State, 56 Ark. 485, 20 S. W. 600; Graham v. Nix, 102 Ark. 277, 144 S. W. 214.
It is the long’ established policy of this court to declare no act of the Legislature unconstitutional save with greatest caution. State v. Moore, 76 Ark. 179, 88 S. W. 929.
And “a statute will not be declared unconstitutional unless no doubt exists On the question.” Stillwell v. Jackson, 77 Ark. 250, 93 S. W. 71.
There is a line of demarcation between the inherent reserved rights- of the people and those prohibited by constitutional mandate. The question always arises upon which side of the line the enactment may fall. The question should be approached with the gravest consideration, and all cases bearing on the question should be most seriously considered. Section 10 of article 1 of the Constitution of the United States and § 17 of árt. 2 of this State’s Constitution should not be considered as all inclusive. The dignity of these provisions rises no higher than the reserve power in the people.
From the synopsis of the act herein given, it necessarily appears that act 278 of 1933 affects only the remedy in the enforcement of contracts, and has nothing to do with the contract itself. Therefore the question narrows down to one of remedy. The rule seems to be well settled, by all American decisions on the subject, that the remedy of enforcing contracts in existence at the time of its execution cannot be taken • away by subsequent legislation. On the other hand, subsequent legislation affecting the remedy only which leaves a valid remedy in effect does not impair the obligations of contract, and is therefore valid. In re Sturges v. Crowninshield, 4 Wheat. 122. In the ease just referred to, the Supreme Court of the United States, on the question here under consideration, said: ‘ ‘ The distinction between the obligati on of a. contract and the remedy given by the Legislature to enforce that obligation, has been taken at the bar, and exists in the nature of things. Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct.”
The same court, in Von Hoffman v. City of Quincy, 4 Wall. 535, said: “It is competent for the States to change the form of the remedy, or to modify it otherwise, as they may see fit, provided no substantial right secured by the contract is thereby impaired. No attempt has been made to fix definitely the line between alterations of the remedy, which are to be deemed legitimate, and those which, under the form of modifying the remedy, impair substantial rights.”
In Antoni v. Greenhow, 107 U. S. 769, 2 S. Ct. 91, the Supreme Court of the United States said: “In all such cases the question becomes therefore one of reasonableness, and of that the Legislature is primarily the judge.”
A number of decisions of the Supreme Court of the United States are urged upon us as decisive of the question here presented. Among them are Bronson v. Kinzie, 1 How. 311. The act there under consideration required the property to be appraised and to bring not less than two-thirds of its appraised value upon sale. Act 278 of 1933 has no such requirement. This is entirely sufficient to differentiate the Bronson case from the one here under consideration. McCracken v. Hayward, 2 How. 608; Lessee v. Ewing, 3 How. 707, and Howard v. Bugbee, 24 How. 461, may be likewise differentiated. In Penniman’s case, 103 U. S. 714, the Supreme Court of the United States drew the line of demarcation as follows: “The general doctrine of this court on the subject may be thus stated: In modes of proceeding and forms to enforce the contract the Legislature has the control, and may enlarge, limit or alter them, provided it does not deny a remedy or so embarrass it with conditions or restrictions as seriously to impair the value of the right. ’ ’
The Supreme Court of the United States seems to be unalterably committed to the rule that all sovereign States retain a measure of control over remedial process and legislation, and to safeguard the vital interests of its people. Jackson v. Lamphire, 3 Pet. 280; Hawkings v. Barney, 5 Pet. 451; Railroad Co. v. Hecht, 95 U. S. 168; South Carolina v. Gillord, 106 U. S. 433; Louisiana v. New Orleans, 102 U. S. 203; Red River Valley Bank v. Craig, 181 U. S. 548, 21 S. Ct. 703; Security Savings Bank v. California, 263 U. S. 282, 44 S. Ct. 108. The same court is also committed to the doctrine that the mere modification of existing remedies for enforcing contracts is not the controlling question. Stephenson v. Binford, 287 U. S. 251, 53 S. Ct. 181.
All such contracts and legislation must be read in the light of the retained sovereignty of the State. Home Building & Loan Ass’n v. Blaisdell, 290 U. S. 398, 54 S. Ct. 231.
Moreover, the Supreme Court of the United States is committed to the doctrine that the constitutional provision against impairment of contracts was not impaired by an amendment of the State Constitution which puts an end to a lottery theretofore authorized by the State Legislature; Stone v. Mississippi, 101 U. S. 814. To the same effect is Douglas v. Kentucky, 168 U. S. 488, 18 S. Ct. 199, and New Orleans v. Houston, 119 U. S. 265, 7 S. Ct. 198.
The same court has many times held that the respective States retain adequate power to protect the public health and the public safety. Fertilizing Co. v. Hyde Park, 97 U. S. 659; Chicago, B. & Q. Rd. Co. v. Nebraska, 170 U. S. 57, 18 S. Ct. 513; Texas & N. O. R. Co. v. Miller, 221 U. S. 408, 31 S. Ct. 534; Atlantic Coast Line R. Co. v. Goldsboro, 232 U. S. 548, 34 S. Ct. 364. Again, in Manigault v. Springs, 199 U. S. 473, 26 S. Ct. 127, that court held that the economic interest of the State may justify the exercise of its continuing- and dominant protective power, notwithstanding interference with contracts. The statute there in question was sustained upon the ground that private interests were subservient to the public right. Continuing, the court there said: “It is the settled law of this court that the interdiction of statutes impairing the obligation of contracts does not prevent the State from exercising such powers as are vested in it for the promotion of the common weal, or are necessary for the general good of the public, though contracts previously entered into between individuals may thereby be affected. This power, which, in its various ramifications, is known a-s the police power, is an exercise of the sovereign right of the government to protect the lives, health, morals, comfort and general welfare of the people, and is paramount to any rights under contracts between individuals.”
All doubts heretofore existing in reference to the retained protective power of the several states was recently removed by the decisions of the Supreme Court of the United States in the following cases: Block v. Hirsh, 265 U. S. 135, 41 S. Ct. 458; Marcus Browning Holding Co. v. Feldman, 256 U. S. 170, 41 S. Ct. 465; Edgar A. Levy Leasing Co. v. Siegel, 258 U. S. 242, 42 S. Ct. 289; and Home Building & Loan Ass’n v. Blaisdell, supra.
In the Blaisdell case, supra, the Supreme Court of the United States upheld the constitutionality of a Minnesota statute which gave to property owners relief during the present emergency. The attack was made there as here that the Minnesota statute impaired the obligations of contract. The act was upheld, however, upon the expressed theory that it fell within the reserved power of the State to protect its people from disaster. The court there said: ‘ ‘ Undoubtedly, whatever is reserved of State power must be consistent with the fair intent of the constitutional limitation of that power. The reserved power cannot be construed so as to destroy the limitation, nor is the limitation to be construed to destroy the reserved power in its essential aspects. They must be construed in harmony with each other. This principle precludes a construction which would permit the State to adopt as its policy the repudiation of debts or the destruction of contracts or the denial of means to enforce them. But it does not follow that conditions may not arise in which a temporary restraint of enforcement may not be consistent with the spirit and purpose of the constitutional provision and thus be found to be within the range of the reserved power of the State to protect the vital interests of the community. It cannot be maintained that the constitutional prohibition should be so construed as to prevent limited and temporary interpositions with respect to the enforcement of contracts if made necessary by a great public calamity such as fire, flood, or earthquake. ’ ’
Act 278 of 1933 comes within the spirit and letter of the Minnesota statute and the holding of the Supreme Court of the United States upholding it. The court there held that, since the Minnesota statute affected the remedy only and gave to the mortgagee the' rents and profits accruing during the statutory delay, it took from the mortgagee no substantial right.
It is true that act 278 does not, in terms, give the mortgagee rents and profits accruing from the property during the pendency of the suit, but this right may be invoked by the mortgagee under other legislation in this State.
Chapter 150, Crawford & Moses’ Digest, vests full power and authority in the chancery courts of the State to appoint receivers in all equitable proceedings, when it is shown that the trust property is in danger of being lost, removed or materially injured, or that the conditions of the trust have been broken and the property is probably insufficient to discharge the mortgage debt. Thus it will be seen that the mortgagee, by invoking the provisions of chapter 150 of Crawford & Moses’ Digest, has the legal status of a mortgagee -under the Minnesota statute.
Our attention has been directed to Adams v. Spillyards, 187 Ark. 641, 61 S. W. (2d) 686, as sustaining the contention that the act under consideration is unconstitutional and void. Such is not the effect of the case referred to. Section 1 of the act there under consideration reads as follows:
“In any foreclosure, in any court in the State of Arkansas in which real estate is involved, the real estate securing- the loan sought to be foreclosed shall be considered to be the value of the loan made, irrespective of the amount which may be realized from the sale of such real property.”
Certainly there is no analogy between the acts in question. A mere comparison will convince any one of the many differentiations.
Since the Legislature is primarily the judge as to when it becomes necessary to exercise the sovereign right of the State for the protection of its people; and, since the act in question impairs no contractual right existing between the parties other than to affect the remedy, and this to no substantial extent, we are unwilling to hold that the Legislature was without power to enact the legislation in question.
The chancellor’s views conforming to the reasons here expressed, his decree will in all things be affirmed. | [
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MIKE MURPHY, Judge
| ¶Appellant Deion Johnson brings this appeal from his convictions for unlawful discharge of a firearm from a motor vehicle and battery. On appeal, Johnson contends that sufficient evidence did not support his two convictions. We disagree and affirm.
This case stems from Johnson shooting Tracy Samuels three times. A month or so before this incident, Johnson had taken Samuels’s dog from his yard because he wanted to keep it for himself. A few days later, Samuels approached Johnson and got his dog back amicably. Between that day and the day of the shooting, Johnson and Samuels did not have any contact.
|20n the day of the shooting, Johnson and his girlfriend drove to Samuels’s home. Upset that his dog had miscarried puppies after having been in Johnson’s care, Samuels began to approach Johnson’s car. The two exchanged a couple of obscenities, and Samuels began to retreat to his home until Johnson said, “We could handle this right now.” Samuels turned around from the door toward the street and approached the vehicle. Johnson then opened his door and fired a gun from his vehicle. Samuels testified that Johnson shot him in the head, neck, and chest. Knowing that his arrest was imminent, Johnson then sped off and fled from officers, but the officers eventually apprehended him.
The jury found Johnson guilty of unlawful discharge of a firearm from a vehicle in the first degree, battery in the first degree, and fleeing. Johnson timely appealed his convictions of unlawful discharge of a firearm and battery in the first degree, alleging that the State did not put forth sufficient proof that the victim had sustained serious physical injuries.
On appeal, a motion for directed verdict is treated as a challenge to the sufficiency of the evidence. See Reynolds v. State, 2016 Ark. 214, at 3, 492 S.W.3d 491, 494. This court views the evidence in the light most favorable to the State and affirms if there is substantial evidence to support the verdict. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. This court does not weigh the evidence presented at trial or assess the credibility of the witnesses, as those are matters for the fact-finder. Id. The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.
laUnlawful discharge of a firearm from a vehicle in the first degree, as charged in this case, is to knowingly discharge a.firearm from a vehicle and by the discharge of the firearm causes death or serious physical injury to another person. Ark. Code Ann. § 5-74-107 (Repl. 2016). First-degree battery, also as charged in this case, is with the purpose of causing serious physical injury to another person, the person causes serious physical injury to any person by means of a deadly weapon. Ark. Code Ann. § 5-13-201 (Repl. 2013).
As required by both of the above definitions, a serious physical injury is defined as a “physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ.” Ark. Code Ann. § 5-1-102(21). Whether a person has suffered serious physical injury is ordinarily an issue for the trier of fact. Williamson v. State, 2011 Ark. App. 73, at 3-4, 381 S.W.3d 134, 137; Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). It is not necessary that the impairment be permanent, but only protracted. See Bell v. State, 99 Ark. App. 300, 259 S.W.3d 472 (2007). And the fact that the victim ultimately recovers has no bearing on whether the injury sustained is serious. Brown v. State, 347 Ark. 308, 65 S.W.3d 394 (2001). Moreover, expert medical testimony is not required to prove serious physical injury, as the finder of fact may use its common knowledge to determine whether such injury occurred. See Hughes v. State, 2015 Ark. App. 378, at 8, 467 S.W.3d 170, 175; see also Johnson v. State, 26 Ark. App. 286, 764 S.W.2d 621 (1989) (the court held that although no medical testimony was presented describing technical aspects of police officer’s injury, nonmedical testimony was sufficient to demonstrate that police officer victim had incurred serious physical injury within meaning of first-degree battery statute).
^Appellant argues that the State did not provide sufficient evidence to prove the shared element of serious physical injury. We disagree.
Samuels testified that he had sustained three gunshot wounds. He stated that one bullet hit his diaphragm, his liver, and his intestines, and that he lost a kidney as a result of the gunshot wounds. He testified that medical staff at the hospital had cut his chest open and packed it with gauze in an effort to stop his liver from bleeding. He also testified that medical personnel cut part of his intestines, removed pieces of his kidney, deflated his lungs, and sewed his diaphragm back together. Samu-els spent multiple days at the hospital. He testified that he continues to get an infection where his kidney used to be and that as a result he has to take antibiotics and had to have drainage tubes placed in his body.
Johnson claims that the State failed to offer any testimony from anyone in the medical field regarding Samuels’s injuries. However, the State was not required to call any medical experts to prove serious physical injury. Hughes, supra. It was the jury’s duty as fact-finders to determine whether Samuels had suffered serious physical injury.
The following evidence supports both of Johnson’s convictions: Samuels’s testimony that he received three gunshot wounds, was hospitalized, lost a kidney, and suffered further infections as a result of the wound; Samuels’s brother’s testimony that he was outside, heard the gunshots, and then saw blood on his brother; and the multiple photographs of the wounds introduced as exhibits and a photo of the blood stains on the roadway. Furthermore, Arkansas Code Annotated section 5-1-102(21) only requires that the physical in jury cause protracted impairment of health generally. Samuels’s testimony of the complications that resulted in infection and required him to return to the hospital, receive | ^antibiotics, and have drainage tubes placed in his body is sufficient evidence that his injury caused protracted impairment of his health.
Because the State presented substantial evidence from which the fact-finder could find first-degree battery and first-degree unlawful discharge of a firearm from a vehicle, the circuit court did not err by denying his motions for a directed verdict. Affirmed.
Abramson and Glover, JJ., agree.
. He does not contest his conviction of one count of fleeing. | [
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McHaNEY, J.
This is a suit by appellant, a negro, against appellee Dumas, to compel specific performance of a contract partly in writing and partly in parol to con vey nine acres of land in a square in the NE corner of the Sy2 SW SW, Sec. 23-18-17, Union County, and against both’appellees to cancel an oil and gas lease on said nine acres, executed by Dumas to Harrison on June 12, 1937.
Appellant acquired the title to said land on October 22, 1922, and has been in the actual possession thereof from that date to the present time. On April 5, 1927, he and his wife executed and delivered to Dumas a deed of trust thereon to secure a note of $130. This indebtedness not having been paid, said deed of trust was foreclosed, the land ordered sold, and, on November 16,1931, Dumas became the purchaser on a bid of $60 and costs, receiving' a commissioner’s deed thereto, which was not filed for record until March 24, 1937, five days after the discovery oil well came in in that vicinity.
On April 22, 1932, within the period of redemption from the foreclosure sale (right of redemption not being waived in the deed of trust), appellant entered into a contract with Dumas for the repurchase of said nine-acre tract for the sum of $150, paying in cash $35 of the purchase price, and receiving from Dumas the following writing: ' “4-22-1932, Received of Elbert Williams $35 on land. Deed to be maid later. F. L. Dumas.” In addition to the foregoing, appellant alleged that no definite time was fixed or agreed upon between them of the payment of the balance of the purchase money, but that same was to be paid in installments in a reasonable time; that he had at all times been in the exclusive possession thereof, as owner, and had exercised all the rights of ownership and dominion over same since the date of his repurchase on April 22, 1932; and that he had no information that Dumas claimed any interest therein, other than a vendor’s lien to secure the balance of the purchase money of $115 and interest thereon at 10 per cent., until shortly before this suit was filed. He tendered into court a sum sufficient to cover the balance due, including principal, interest and taxes paid by Dumas.
Appellee Dumas answered, admitting the deed of trust, its foreclosure, the commissioner’s deed to him, the oil and gas lease by him to appellee Harrison, and deny ing all other' material allegations. He also interposed a plea of the Statute of Frauds in bar of the action and a plea of laches in bar of a recovery. Harrison adopted the answer of Dumas. Trial resulted in a decree dismissing appellant’s complaint- for want of equity.
The fundamental facts are not in dispute. Appellant has owned the land since 1922 and has at all times been in the exclusive possession thereof. He became indebted to Dumas and in 1927 executed a deed of trust to him to secure same. The land was sold to Dumas in the foreclosure sale in 1931, but appellant continued in possession under his equity of redemption which was not foreclosed. In April, 1932, he contracted with Dumas to repurchase for $150, the contract being partly-in writing and partly oral, and actually paid $35 in cash, nearly one-fourth of the purchase price, and thereafter continued in possession under said contract. After said date, he cleared about two and one-half acres of new ground.; built a two-room dwelling house, fourteen by twenty feet, with a porch in front, out of number two lumber; built a barn and a shed; constructed some picket, wire and rail fences; and otherwise exercised acts of ownership over said land, such as receiving check from the government under the AAA and under the soil conservation act, signing up each time as the owner to the knowledge of Dumas, he thinks. The value of these improvements is in dispute, but it cannot be said they are not of substantial value. They were made after the repurchase and up to and including 1934. In 1935, Dumas, as appellant says, told him to pay the taxes and that he attempted to do so, but found the land delinquent, and was advised by the clerk that it had forfeited in Dumas ’ name, and that only Dumas could redeem it. So it will be seen that appellant was at all times in possession as the owner, up to the foreclosure sale as owner-mortgagor; from that time to April 22,1932, as owner of the equity of redemption; and from the latter date as owner under a contract of purchase for $150 with $35 of that amount paid. He was never in possession as tenant of Dumas. The written memorandum copied above is something more than a mere receipt for $35 paid on land, which both parties agree refers to the land in controversy, and is a promise on Dumas’ part to convey the land to appellant by a deed to be thereafter made. Had it described the land and stated the balance of- the consideration to be paid, the written instrument alone would have been sufficient to support an action for specific performance. No time for payment of the balance being stated, a reasonable time would have been given. Here no time- for payment of the balance is stated in the memorandum, and the parties agree that no definite time was fixed orally. Appellant says it was to be paid in installments in a reasonable time along as he could get it, and Dumas says it was to be paid the next year. He declared no forfeiture because of failure to pay the next year, but, on the contrary, as late as 1936, according to his own testimony, he was negotiating with appellant for the payment of the balance of the purchase money.
We are, therefore, of the opinion that the writing .taken in connection with the undisputed facts sufficiently establishes the contract, if the evidence relating to it is competent, and that the cases cited by appellees, including Phillips v. Jones, 103 Ark. 550, 146 S. W. 513, are not controlling to the contrary. In Rugen v. Vaughan, 142 Ark. 176, 218 S. W. 205, it was held, to quote a headnote, that: “Payment of a small part of the purchase money of land and making permanent improvements, as by clearing the land and finishing a house, in value equal to a fourth of the purchase price, is sufficient ground for specific performance of an oral contract for the purchase of land.” See also Ashcraft v. Tucker, 136 Ark. 447, 206 S. W. 896. It was held in the Rugen Case that continuance in possession of a lessee after an-oral contract to purchase is not sufficient to take the contract out of the statute of frauds. Here, appellant did not continue in possession as lessee. He never was a tenant of Dumas, but was in possession at all times as owner. He never paid nor agreed to pay rent. The contract was partly in writing, and his possession, coupled with all the facts and circumstances heretofore recited certainly makes out a case for specific performance.
But appellees say appellant is barred by the statute of frauds. We cannot agree. Payment of a part of the purchase price, the continued possession of appellant as owner, the written memorandum, the making of permanent and valuable improvements, taken separately or all together constitute such part performance as to take the contract out of the statute. Phillips v. Jones, supra; Ashcraft v. Tucker, supra; Rugen v. Vaughan, supra; State Bank v. Sanders, 114 Ark. 440, 170 S. W. 86. Moreover, as was said in Littell v. Jones, 56 Ark. 139, 19 S. W. 497, “So long as the right to defeat the purchase exists [by redemption] agreements to extend the time or modify the conditions for redemption have been held not to come within the statute, for the defendant is in many respects regarded as the owner of the land, and by such agreements purchases nothing, hut merely holds what he already has.”
Appellee Dumas says he agreed to convey to appellant only the surface rights and to reserve what was left of the right to the oil and gas. In this respect his testimony contradicts the writing and for this reason is incompetent. The writing contemplates a deed to the land, which includes all interest therein, as there was no exception therein.
Nor can we agree with a'ppellees that appellant was guilty of laches sufficient to bar recovery. The facts herein stated refute the allegation.
Appellee Harrison purchased from Dumas Avith appellant in possession, as owner. This possession was sufficient to put him on notice of appellants’ rights. He cannot therefore he held to he an innocent purchaser under his lease from Dumas.
The decree will he reversed and the cause remanded Avith directions to enter a decree for specific performance and to cancel the lease of Harrison as a cloud on appellant’s title. Appellees to pay all costs. | [
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Humphreys, J.
This suit was commenced in the municipal court of El Dorado by appellant against ap-pellee to recover $222.39, an alleged balance due for a second-hand automobile sold by appellant to appellee on the installment plan, it being provided in the contract of sale and purchase that the failure to pay any installment, when due, should make the entire note due and payable at the option of the vendor.
It was alleged that after paying three monthly installments appellee made default and that appellant, in the exercise of its option, has declared the entire amount of the unpaid balance due; and prayed judgment for the balance due against appellee, that the automobile be sold and the proceeds applied to the payment of the judgment, interest and cost.
A default judgment was rendered against appellee in the municipal court and the automobile ordered sold pursuant to the prayer of the complaint, from which an appeal was duly prosecuted to the circuit court of Union county, second division.
In the circuit court appellee filed an answer to the complaint, admitting that he purchased the automobile upon the installment plan and that he executed a title-retaining note evidencing the balance due, but stated that he did so upon the representation that it was in good condition, which representation was untrue; that appellant refused to place the automobile in operating condition as represented, whereupon, he returned the automobile to appellant in settlement of the debt.
The cause was submitted to a jury upon the sole issue of whether appellee returned the automobile to an authorized agent of appellant in full settlement of the balance due thereon.
The jury returned a .verdict for appellee and from the judgment dismissing appellant’s complaint it has duly prosecuted an appeal to this court.
Appellant contends there is no substantial testimony in the record tending to show the automobile was re turned to an agent authorized to accept the ear in settlement of the debt.
The record reflects that Mrs. I. M. Gibbons to oh the automobile back to appellant and that it was accepted in settlement of the balance due on it. The following is an excerpt from her testimony relative to taking the car back and delivering same to appellant:
“Q. When you arrived at the used car lot, did you turn this car over to the first- gentleman you saw, A. Well, I drove the car in the yard and I was standing by the side of it, and some fellow walked around there and he said he wasn’t the fellow who had charge of it, and he went back and the other fellow told me when he come out that he had charge of the second-hand lot. Q. Is ‘the other fellow’in the room now? A. Yes, sir. Q. Is he the gentleman who testified a while ago? A. Yes, sir, Mr. Roscoe. Q. Did you have any conversation with him about it? A. He asked me what he could do for me, and I says I have brought the oar back, we are- unable to pay for it, and he says we don’t take them back, and I says, ‘What-will I do with it because we are unable to pay for it?; he says, ‘We don’t make a practice of taking them back, but I will take it back. ’ He says the car stood good for the payments and he could make money on it, and I says, ‘Well, you are perfectly welcome to it because we can’t pay any more on it.’ He said he could make money on it by repairing it. Q. What did you do with the car? A. I left it sitting in the yard there. Q. With him, you left it with him? A. Yes, sir.”
Upon cross-examination the following questions and answers appear in her testimony: “Q. When you brought this car back Mr. Roscoe came up to you and asked you what he could do for you? A. Yes, sir Q. And he told you he would take the car back? A. He introduced himself — he told me he would take it back. Q. And for you to forget the balance due on it? A. Ño, not in those words. Q. But that was the idea? A. Yes, sir. Q. Did you think Mr. Roscoe was in charge of McWilliams ’ business ? A. He told me he had charge of the second-hand yard. Q. He said the car was worth more than you owed and we will take it for the balance due? A. He told me that tbe car stood good for the balance due'on it and that it could be repaired and they coüld make money on it. ”
Mr. Jay Baker testified that he was the general manager of appellant’s company and that he did not give Travis Boscoe any authority to accept the car in settlement of the debt due thereon and Travis Boscoe testified that he was in charge or the manager of the used car lot, but that he had no authority to accept cars which had been sold in settlement of the balance due on them. In explaining why the car was taken back, Mr. Jay Baker said: “When he brought the car back there wasn’t anything for us to do but to turn it over to the used car department.” He also testified that Mr. Boscoe “looks after our used cars.”
Mr. Boscoe denied that he agreed to take the car back for the indebtedness and that it was left on the lot without any permission from him.
Considering the evidence as a whole, we think the jury could well and reasonably draw the inference that appellant, through its authorized agent, received the car in payment of the debt, especially in view of the fact that the general manager said they turned it over to the used car department.
The law is well settled that a principal is liable for the acts of his agent done within the apparent scope of his authority. Cotton v. Ingram, 114 Ark. 300, 169 S. W. 967; Oak Leaf Mill Co. v. Cooper, 103 Ark. 79, 146 S. W. 130. The jury, of course, had a right to believe the testimony of Mrs. I. M. Gibbons with reference to what was said and done when she delivered the car and tailing into consideration all that occurred, and especially the fact that the car was turned over to the used car department ■by Mr. Baker, who was the general manager, the jury had a right to draw the inference that Mr. Boscoe was acting within the scope of his authority when he agreed to take the car back in settlement of the debt against it. This is what the jury did as evidenced by its verdict. We, therefore, find that there is substantial evidence in the record to support the verdict.
No error appearing, the judgment is affirmed. | [
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Smith, J.
Pennie Swetcoff came to this .country from Bulgaria in 1914, and he has not yet learned to write our language, hut has been taught to sign his name. He came to Batesville in 1935, and opened a cafe in that city, which he operated as “Pennie’s Cafe.” He became acquainted with C. C. Felts about January, 1936, when the latter was employed as a laborer on a sewer project in Batesville, and he gave Felts employment in liis cafe at a wage of $6.00 per week. This wage was increased from time to time until it reached $12.50 per week. Felts was finally paid $14 per week, and there is a controversy as to whether the last increase of $1.50 per week, from $12.50 to $14.00, included room rent. Swetcoff was then rooming in the home of Felts, who was a married man.
In addition to his cafe, Swetcoff owned a tract of land in Texas, the present value of which does not appear, but we have the. impression that it is of small value, although Swetcoff paid $1,500 for it during an oil boom in the vicinity of the land conveyed. On July 21, 1937, Swetcoff, who was an unmarried man, executed and acknowledged a deed to the land and a bill-of-sale to the cafe, conveying both to Felts. The deed does not appear in the record, but the bill of sale, which makes no reference to the deed, recites that it was executed “for and in consideration of the sum of Eleven Hundred and No/100 Dollars to me in hand paid by Conway Felts at and before the delivery of these presents.” It -appears to be entirely certain that the recited consideration was not paid. The testimony does not show what the consideration for the deed was.
Swetcoff contracted tuberculosis, and now has that disease in an advanced stage. He was advised by a physician that his work about the cafe would endanger the health of his customers, and he testified that Felts told him frequently that the place would be closed if he (Swet-coff) continued to operate it, and that it was the consideration of this threat or, fact which Induced the execution of the bill of sale.
The testimony is in hopeless conflict as to the operation of. the cafe after the execution of the bill-of-sale, but we think the preponderance thereof is to the effect that Felts operated the cafe after the execution of the bill-of-sale under the supervision and direction of Swet-coff, until the fall of that year, when Swetcoff became unable to give the business any attention.
Swetcoff brought this suit to cancel the bill-of-sale, and alleged that “this plaintiff has never received any consideration to support said.bill of sale; that said bill óf sale was executed by the. plaintiff to the defendant with the understanding and agreement by the defendant that he would hold the property as trustee for the plaintiff and for his use and benefit, and it was never intended by the plaintiff nor the defendant that said bill-of-sale would be binding upon the parties thereto.”
The chancellor denied the‘relief prayed, and from that decree is this appeal.
The testimony convinces us that Felts paid nothing for the business, and that the real agreement of the parties was that Felts should operate the business during the lifetime of Swetcoff and that Swetcoff should be supported out of its earnings. In other words, there was a conveyance of the title to the cafe, and the consideration for the conveyance was that Felts, should support Swetcoff during the remainder of Swetcoff’s life. Felts, in his answer, alleges, .in effect, that this was the consideration for the bill-of-sale, and that he had complied with its undertaking up to the time of the institution of this suit, and the rendition of the decree, and that he was ready to continue to do so, and that Swetcoff left his home without cause, but he had continued to pay him the sum of $15.00 per week, and that he was ready and willing to continue that payment.
Sweteoff lived, at the time of the execution of the hill of sale, in the home of Felts. There was no change in the cafe account at the hank with which Sweteoff had done his banking business, hut the bank was notified by Sweteoff; to honor checks signed by Felts, but against this account checks were thereafter drawn by Sweteoff as well as by Felts. Among others, Felts drew checks against this bank account for the amount of wages he was being paid when the bill of sale was executed, this being done as late as November after the execution of the bill of sale in July, although Felts denied that he had issued any checks to his own order as wages after the execution of the bill of sale.
The bill of sale was prepared by Prior Evans, a Notary Public, and Felts admitted that “I told Prior that he could put in it that I would take care of him (Sweteoff) for the rest of his life, but Prior said it wasn’t necessary.” When asked, “Was part of the consideration for the execution of that bill of sale, that you were to take care of him (Sweteoff) as long as he lived?” Felts answered: “Yes, sir, I liked Mr. Pennie and wanted to go on taking care of him.” Felts testified that even after the institution of this suit he had ‘ ‘ offered to continue to take care of him for life, both verbally and by letter. Since then I have been paying him $15.00 per week.”
That the obligation to take care of Sweteoff “as tong-as he lived” was the real consideration for the bill of sale we entertain no doubt.
Sweteoff became dissatisfied and left Felts’ home. The reason given by him for doing so was that “They (Felts and wife) got to talking too much about what they were going to do about taking my business away from me.”
We have, therefore, as we construe- the testimony, the familiar case of one conveying his property to another, upon the condition that the latter should support the former during the remainder of his life.
The court below was evidently of the opinion that there had been no breach of this agreement, aiid dismissed the suit as being without equity.
Subsequent to the rendition of this decree Felts wrote Sweteoff a letter, in which he proposed to provide for the support of Sweteoff, but upon the condition that Sweteoff should not prosecute an appeal from the decree dismissing the suit. When Sweteoff did not assent to this proposition, Felts discontinued the $15.00 a week payments to Sweteoff, and a motion was thereafter filed to reopen the case and to cancel the bill of sale because of this failure to support, except upon the. condition stated. This motion was overruled, and this appeal has been prosecuted to reverse the original decree and the subsequent action of the court in refusing to reopen the case.
The case of Goodwin v. Tyson, 167 Ark. 396, 268 S. W. 15, announces the principles of law which are controlling here, and they are to the following effect. The title to the property passed upon the execution and delivery of the bill of sale, and the provision in regard to support, although not written into the contract, but which was in fact the consideration for it, was not a condition precedent. The title passed upon the execution and delivery of the bill-of-sale, subject to be defeated, however, by the failure to perform the condition — that of support.
In this Goodwin v. Tyson case we quoted from the case of Edwards v. Locke, 134 Ark. 80, 203 S. W. 286, as follows: “ ‘The rationale o.f the doctrine is that an intentional failure upon the part of the grantee to perform the contract to support, where that is the consideration for a deed, raises the presumption of such fraudulent intention from the inception of the contract, and therefore vitiates the deed based upon such consideration. Such contracts are in a class peculiar to themselves, and, where the grantee intentionally fails to perform the contract, the remedy by cancellation, as for fraud, may be resorted to, regardless of any remedy that the grantor may have had also at law. (Citing cases).'’ ”
Here, the title to the cafe passed to Felts, but that conveyance was subject to be defeated by the failure on the part of Felts to perform the condition which constituted the consideration — that of support of Sweteoff. Felts did not repudiate that obligation, and insists that he was performing it when this suit was instituted, and he proposed to continue to discharge his. obligation to Swetcoff, provided this suit was dismissed. We do not think that the institution of this suit operated to discharge Felts from the continued performance of this obligation.
Swetcoff testified that Felts refused to perform this obligation; that his condition was such that he required attentions which he did not receive, while he remained in Felts’ home, and that Felts failed and refused to furnish him medicine or the money with which to buy it. Had he established these facts, he would have been entitled to have the bill of sale canceled, upon the ground that the consideration had failed.
But the chancellor did not find this to be true, and we cannot say that his finding is contrary to the preponderance of the evidence; indeed, Swetcoff qualified his statement that Felts did not furnish medicine and medical attention by saying that these expenses had been paid out of the earnings of the cafe. But this is the source from which Felts was to derive money for that purpose. A doctor who attended Swetcoff professionally ten or twelve times during 1937 testified that Felts paid him for this service.
We do not think, however, that the unsuccessful attempt to make this showing operated to discharge Felts from his obligation to support Swetcoff. That obligation subsists, and must be performed unless Felts is willing to surrender the cafe.
■ Now, it is true that Felts discontinued support to Swetcoff when Swetcoff refused to dismiss his case, but this; under the circumstances of the case, cannot be treated as a breach of the contract. Swetcoff was not demanding support, but was insisting upon the return to him of the cafe, and this unjustified demand imposed upon Felts expenses in defending litigation in which that demand was made, which, so far, he has done successfully.
It was evidently the opinion of the court below that Swetcoff could not insist' that the case be reopened and the original decree vacated because support had been discontinued, after the rendition of the original decree, inasmuch as Swetcoff was demanding by his suit, not support, but the return of the cafe.
The equity of the case appears to require the affirmance of the decree permitting Felts to retain the property;'but if he wishes to continue to retain it he must resume the support of Swetcoff, and if he should hereafter fail to do so equity would require the cancellation of the bill of sale and the return of the cafe to Swetcoff.
Inasmuch as 'Swetcoff sought relief which he was not awarded, and to which he was not entitled, the costs of this case must be assessed against him, but Felts will not be allowed to reimburse himself for any costs he may have paid or incurred, by withholding contributions to Swetcoff’s support, which he must make from the date of this opinion.
Upon filing suit, Swetcoff prayed the appointment of a receiver to operate the cafe, and that order was made, pursuant to which a receiver was appointed, who operated the cafe for a week, then the court discharged the receiver.
In the order discharging the receiver, Felts was ordered to pay the attorneys for the receiver, who were the attorneys for Swetcoff, a fee of $50. We think this was error. The receiver was appointed upon an ex parte application, and upon a hearing seven days later as to the necessity and propriety of a receivership, the court discharged that officer. It was not shown what, if any, duties were performed by the attorneys for the receiver, but for service performed for the receiver for which compensation should be allowed — and that showing has not been made — the fee awarded to compensate such services should be taxed as costs of the case, and not against the party who opposed the appointment of the receiver and secured his discharge and prevailed in the final decision of the case.
As thus modified, the decree will be affirmed. | [
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Griffin Smith, 0. J.
Sebastian Bridge District soug'ht by mandamus to compel tbe Treasurer of State, tbe Auditor of State, and tbe Bond Refunding-Board, to pay its 1938 bond and interest maturities and to refund $1,075 in interest paid by tbe district April 1,, 1938 — a total of $45,150. Fag-an Bourland, individually and as a taxpayer, and McLoud Sicard, as an owner of bonds, joined in tbe complaint.
Tbe defendants filed a demurrer, and also answered. In tbe answer it was alleged that unexpended funds appropriated by Act No. 10 of tbe Extraordinary Session of 1938 were insufficient to meet tbe demands made.
Tbe improvement district was organized in 1913 to construct a free highway bridge across tbe Arkansas river at Fort Smith. Bonds aggregating $1,075,000 in three issues were sold. Principal and interest amounted to $1,458,575, all of which has been paid by tbe assessed taxpayers except an amount equal to tbe maturities and interest in question.
Two relief measures were enacted by tbe 1938 Extraordinary Session of tbe General Assembly, the* purpose in each instance being to extend assistance to bridge improvement districts in those cases where the bridges formed a part of tbe state highway system. These measures were Acts 9 and 10, approved April 1.
Act No. 9 amended Act No. 183 of 1935 by increasing from $1.50 to $3 the tax on motor vehicles and trailers in tbe course of delivery from manufacturer to dealer. Under tbe original Act, revenues from this source were deposited in tbe state treasury and treated as other motor vehicle license funds. By Act No. 9 it was directed that collections be credited to a new account designated “Bridge Bond Retirement Fund,” to be paid to boards of commissioners of bridge improvement districts on order of tbe State 'Comptroller. Tbe Comptroller was instructed to procure from such districts, not later than November 1 of each calendar year, the amount of interest and maturities accruing on bonds of tbe respective dis tricts “falling due in said calendar year.” An appropriation of $150,000 was made for the year ending June 30,1939, “for the purpose of paying interest and maturities on the bonds of bridge improvement districts coming under the provisions of this Act. ’ ’
Act No. 10 directed the State Highway Commission, the State Refunding Board, “or any other appropriate body, ’ ’ to ascertain the amount of ‘ ‘ outstanding principal and interest for the year 1938 [due] by the several bridge improvement districts in the state; and [to] pay all such principal and interest, when due; provided, however, any of the bridge improvement districts may elect to be paid its part of said fund to apply on past-due bonds.”
An appropriation of $300,000 was made from the State Highway Fund, the Toll Bridge Refunding Bond Redemption Account, the Refunding Certificates of Indebtedness Redemption Account, and the Funding Note Redemption Account . . . “or so much thereof as is necessary to pay the maturities of principal and interest of 'bridge improvement district bonds. ’ ’ The same bridges and obligations of the same districts are treated by Acts 9 and 10.
By § 3-A of Act 10 it is declared that . . . “bridges as defined in this- Act are integral parts of the state highway system, and the indebtedness due on account of the construction of said bridges is hereby declared to be a just debt of the state. ’ ’
Vouchers and warrants issued against the appropriation made by Act No. 10 amount to $299,850.87. Included in these figures is a voucher in favor of Sebastian Bridge District for $14,765.80.
There was no default of Sebastian Bridge District as to either principal or interest prior to 1938. The voucher for $14,765.80 issued by the state was the difference between 1938 maturies of $44,075.00 and cash on hand of $29,309.20 standing to the district’s credit after deduction of the aggregate of outstanding accounts other than bonds and interest had been made.
Appellants insist that the 1938 legislation was for the benefit of taxpayers of the various districts; that by terms of the two Acts, which should be read together, the state assumed bond and interest obligations of 1938, and that the action whereby the district was in effect charged with its net cash balance was arbitrary, and contrary to the purpose of the General Assembly.
Nine bridge districts, under the construction given by the State Comptroller and apparently concurred in by the Bond Refunding Board and Treasurer of State, were affected by the. legislation. That an understanding may be had of the manner in which the measures have been administered, it is necessary to show the bases upon which payments were made by the state, and condition of the districts.
Two bridges were constructed by the Broadway-Main Street District. Available records indicate that cost of the Broadway bridge (in Little Rock) was 44% per cent, of the total expenditures. Total bond maturities, inclusive of principal and interest, formed the basis for computing the relief to which the district would be entitled by reason of the fact that the Broadway bridge is a continuation of state highways, while the Main street bridge is not so classified. The amount so found as aid to which the district was entitled was $53,561.31. Cash on hand and with the chancery clerk was $132,344. Forty-four and one-half per cent, of this sum would be $58,-893.08. The state paid 44% per cent, of the 1938 maturities without reference to the available cash. Otherwise expressed, no deductions were made.
The Tell and Pope county district had maturities of $16,818.75 for 1938. Cash on hand and in the hands of special'collectors was $3,969.38. The state paid the district $16,818.75, making no deduction for available cash.
Bridge Improvement District No. 1 of Independence county (there were two bridge districts in Independence county) had no principal maturities in 1938, but owned $830 in interest. Available cash was $108.84. Payment by the state did not include a deduction equal to the available cash.
Independence County Bridge District had 1938 principal and interest maturities of $11,525. Cash on hand and with the chancery clerk was $11,923.87. .The state’s payment was $11,525.
Lee County Bridge District No. 2 had bonds and interest of $11,950 in 1938, and $19,395.83 of defaults. The district’s available cash was $5,024.20. State payment was $26,321.63, the available cash having been deducted.
Conway County Bridge District had principal and interest of $3,192.50 maturing in 1938 and default principal and interest of $18,316.67. Cash on hand and with the chancery clerk was $523.85. Accounts payable (other than bonds) was $287.62, the net cash being $236.22. State payment was $21,272.95, the net cash having been deducted.
Jefferson County Bridge District had principal and interest maturities of $54,287.50 in 1938, and default principal and interest brought .forward from other years amounting to $96,693.75. Cash on hand and due from the chancery clerk was $24,579.30. There were outstanding-notes of $7,431.16. After allowing for payment of the notes and small current obligations, it was assumed that the net cash was $17,148.14. State payment was $133,-833.11, the so-called ‘ ‘ net cash ’ ’ having' been deducted.
Whelen Bridge District had no principal or interest maturities for 1938. Default bonds and interest amounted to $21,774.60. Miscellaneous bills payable amounted to $50. Cash available was $902.28. This cash balance was treated as a “net” of $852.28 and was deducted from $21,774.60 and a state payment of $20,922.32 was made.
The quoted figures show that as to Pulaski county (Broadway-Main Street District) $58,893.08 cash appor-tionable was not deducted by the state in determining the amount the district was entitled to. In the Yell and Pope County District $3,969.38 was left with the commission ers. The small balance of $108.84 held by District No. 1. of Independence was not charged against bond and interest payments, while in the other Independence county district the state paid $11,525 while at the same time the district had a cash balance of $11,923:87 — a sum exceeding by $398.87 the entire bond and interest maturities.
In other districts tie cash on hand or available was deducted.
It is urged by appellants that Acts 9 and 10 contemplated only that bonds and interest maturing in 1938 should be paid, and that the state’s action, through its ministerial or executive officers in paying accruals of other years, was an illegal diversion of funds appropriated for a specific purpose. Appellees insist that for purposes of the instant suit it is immaterial whether the fund was properly or improperly disbursed; that it is gone, and that mandamus does not lie to compel an officer to do an- impossible thing.
"We think it is significant that Act No. 9 directs the State Comptroller to ascertain, before November 1, 1938, the total amount of interest and maturities of bonds of the several districts. This determination shall be made for “each calendar year,” and the report so required is for calendar years. The intent, therefore, was that the same duty should recur with respect to years succeeding 1938. But the appropriation of $150,000 was made “for the year ending June 30, 1939.” This is the close of the state’s fiscal year. The purpose, then, must have been to make available this appropriation of $150,000 for the payment of bonds and interest accruing during the 1938 calendar year, but as to any surplus thereof, it should be carried forward for use in 1939 and prorated to the districts.
It is our view that the language in Act No. 10 pledging the state to pay “all such principal and interest, when due,” was expressive of the legislative intent to assume the 1938 bond obligations, and the fact that some of the districts had funds on hand is immaterial.
Since the relief asked by appellants does not involve an additional taking of revenues appropriated by Act No. 10, drawn from three accounts in the highway fund pledged by Act 11 of 1934, we do not determine whether the appropriation made by Act 10 is violative of the contracts promulgated by Act 11 of 1934, the obligations of which cannot be impaired. • '
Revenues arising under Act 183 of 1935, as amended in 1938 by Act No. 9, were not, by any express language, included in the provisions of the 1934 refunding law. They are, therefore, available, to the extent of any unimpaired balance collected during 1938, for the payment of warrants to which any bridge district may be legally entitled.
Since taxpayers of the Fort Smith area have paid more than fourteen hundred thousand dollars for a public bridge, and since Acts 9 and 10 were obviously intended as measures of relief to property owners, we think all bonds and interest maturing in 1938 should have been paid by the state.
In approving payment of bond and interest defaults occurring prior to 1938, the State Comptroller apparently took the view that when the obligations were carried over from one year to another without suit by bondholders to foreclose the liens, there was an implied understanding, or an agreement, for an extension of time. Under this construction it might be said that the accruals were payments falling due in 1938.
We reverse the judgment and remand the cause with directions that mandamus issue commanding the Treasurer of State to pay (to the extent of funds accruing to the Bridge Bond Retirement Fund from collections made in 1938) a sum not to exceed $29,309.20, which is the amount we find to be due in addition to the item represented by outstanding voucher for $14,765.80. This relief does not extend to recovery of $1,075 paid by the district as interest April 1, 1938. It is so ordered.
Smith, J., dissents.
An additional provision in Act No. & is: ‘If there be not a sufficient sum in the state treasury to the credit of the Bridge Bond-Retirement Fund to pay all maturities and interest, . . . then the State Comptroller shall apportion said fund pro rata. . . . If any district so desires and so indicates by its board of commissioners, it may use the money paid to it for any year for the retirement of past-due bonded indebtedness.”
The three accounts in the Highway Fund from which the $300,-000 appropriation made in Act No. 10 is taken were created by Act No. 11 of the Extraordinary Session of 1934, approved February 12. The State Highway Fund was to receive the gross toll bridge collections, 92.3 per cent, of the net gasoline tax; all net automobile license fees, and “all other net highway revenues.” By “net” was meant the gross collections less cost of collection (toll bridge collections excepted) and certain allowable deductions, notably unpaid checks. All gross collections (other than from toll bridges) went into the unapporti-oned fund.
With respect to the Highway and Toll Bridge Refunding Bond Redemption Account, it was provided that “Whenever, in any fiscal year, there shall be funds in excess of the amount necessary to pay principal and interest falling due in such' year, such excess fund shall be applied by the Refunding Board in the purchase of State Highway Refunding Bonds, Series A and B, and State Toll Bridge Refunding Bonds, Series A and B, and DeValls Bluff Bridge Refunding Bonds, at the lowest price submitted.”
As to the Refunding Certificates of Indebtedness Redemption Account, it is directed that . . . “any balance [of highway funds] remaining after provision has been made for the next semi-annual interest payments to accrue, shall he deposited” ... to this special account . . . annually after 1936 in the ratio of one-eighth per cent., “pledged for the payment or redemption of the principal and interest of Refunding Certificates of Indebtedness” issued under provisions of §§ 11 and 12 of Act 11. Section 12 of Act 11 authorizes issuance of Refunding Certificates of Indebtedness in exchange for outstanding certificates of indebtedness issued under authority of Act No. 8 of 1928, and Act 85 of 1931. These two Acts deal with debts of municipal improvement districts in those eases where the streets are continuations of highways.
The Funding Note Redemption Account, after 1936, should, under Act 11 of 1934, receive 1.3 per cent, of highway revenues for payment of principal on funding notes issued to contractors. [While the term “and interest” is used in the statute, as a matter of fact, funds are set aside in the State Highway Fund six months in advance for the payment of interest on the Funding Notes, Refunding Certificates of Indebtedness, Road District Refunding Bonds, series A and B, Highway and Toll Bridge Refunding Bonds, series A and B, and DeValls Bluff Bridge Refunding Bonds.]
The emergency clause of Act No. 10 finds that real estate within the bridge'improvement districts is “unjustly burdened with an annual tax”; that such owners of real property “also contribute to highway funds by paying the high gasoline tax,” etc.
The voucher issued by the state ($14,765.80) did hot include payment of $1,075 made by the district April 1, 1938.
The Whelen District constructed a bridge over the Little Missouri river, which separates Clark and Nevada counties. The bridge is a part oí Highway No. 53, near the town of Whelen Springs. | [
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Holt, J.
Appellee, Alice Wood, recovered judgment for $1,000 against appellant, in the White circuit court, to compensate damages alleged to have been sustained by drinking a portion of a bottle of Coca-Cola, bottled by appellant, which contained a rusty and corroded Coca-Cola bottle cap. The acts of negligence set out in her complaint are: “That the said plaintiff drank practically all of the contents of the said bottle of ‘ Coca-Cola’ that the contents of the said bottle were poisonous, unwholesome and unfit for human consumption in that it. contained a bottle cap which was rusty and corroded and from which all of the paint had been eaten away and which caused the said bottle of fluid to become poisonous and unfit for human use, and that the said plaintiff did not discover that the said bottle cap, so rusted, was in the said bottle until she had consumed practically all of the contents thereof. That the defendant was careless and negligent in the preparation of the said bottle of ‘Coca-Cola’ in that it permitted, the said bottle top, which was made of metal, with a cork filler and painted, to be-sealed in said bottle and sold for human consumption;, and that by reason of such carelessness and negligence,, the plaintiff became extremely sick and nervous and her system poisoned . . .” Appellant interposed a complete denial of all allegations of negligence.
There are three assignments of error presented here:: 1. That the trial court erred in overruling appellant’s, motion to require appellee to file cost bond. 2. That the court erred in refusing to instruct the jury to find for the defendant because there- was no' substantial evidence-upon which a verdict of the jury could be based. 3. That the verdict is excessive. The view that we have taken of this case malíes it necessary for us to consider only the-second assignment.-
The material facts, as disclosed by the record, stated in their most favorable light to appellee, substantially are: On October 18, 1936, appellee, in company with her husband, stopped at a filling station and while sitting; in their oar, drank abont three-fourths of a bottle of Coca-Cola. After drinking most of the contents of the bottle she discovered a crushed Coca-Cola cap •with a dark substance around it inside the bottle. Before drinking it she had been in good health. Some ten minutes after drinking same she became nauseated and nervous. They drove immediately to Beebe, Arkansas, where she was given an emetic which caused her to vomit several times. She remained in Beebe an hour or two and then proceeded to her home in Conway. Three of four days later she called her family physician and he prescribed for her and treated her from time to time at his office until she left Conway. She was unable to go to her husband’s place of business, a cleaning and pressing establishment, where she kept the books and assisted in waiting on the customers, for. a few days, during which time she kept the books at her home. Her doctor prescribed a soft diet for her which she has kept up more of less until the date of the trial. Her weight dropped from 145 pounds to 135 at the time of the trial, but was holding her own now and still suffers from pains in her stomach. The testimony of appellee’s husband was substantially the same as her own.
Dr. Abington, who gave her an emetic at Beebe, which caused her to vomit several times, stated he knew nothing as to the cause of her condition except what she told him.
Dr. Brook, appellee’s family physician, testified in substance that appellee had - previously been in good health; that she came to him several days after the occurrence complained of and he told her he didn’t know whether it was the Coca-Cola, the dinner she ate or Dr. Abington’s treatment, but that she was a pretty sick girl, and continued to be sick for some time after that; that he treated her until April or May and put her on a diet because she kept having’ a gastritic condition and pains; that she would talk to him by telephone and' come to the office and he would see her at her place of business and that he gave her anti-acids.
Dr. Dunklin, on behalf of appellee, testified in response to a hypothetical question as follows: “Q. Dr. Dunklin, I will ask you to state to the jury whether or not, in your opinion, if a bottle of Coca-Cola had sealed up in that bottle a cap consisting of metal, cork and paint, the usual Coca-Cola top, and remaining therein for some time, if the liquid in the said bottle of Coca-Cola with the cap sealed therein is taken into the human stomach if it would cause gastritis or an irritation to the inner lining of the stomach? A- Yes. Q. Do you know of any case in which that has occurred? A. No, I can’t cite you specifically to a case.” The testimony is undisputed that there was no chemical analysis of that part of the Coca-Cola remaining in the bottle in question from which appellee drank.
On behalf of appellant, the testimony of Dr. J. M. Kilbury was introduced, and he testified in substance that he was a chemist engaged in laboratory work, chemistry and pathology, or the study of diseases, in which he had been engaged for about twenty years; that he was also a licensed physician; that he conducted tests by breaking down Coca-Cola bottle caps, as well as other caps, so as to make a chemical analysis of same, which caps consisted .of the paint on them together with the iron, tin and cork in them; that iron is often given as a medicine and that an ordinary dose is three or four times as much as was found in one of these bottle caps; that the human body will absorb only a certain amount of iron,, any excess passing into the intestinal tract; that no harmful effects result from a.large dose of iron; that the amount of iron in a bottle cap taken into the human stomach would produce practically no effect; . . . that the bottle caps were dissolved by the use of acid and heat and the liquid content was fed to mice upon which it had no effect and that it would have produced practically the same effect on the mice that it would on a human being; that caps, both with paint and without paint, were placed in bottles and put in incubators which maintain a heat of about that of a human body and left ■'there two weeks; that in the case of the caps that had paint still on them.there was no substance in the Coca-Cola and in the ones from which the paint had been removed there was some tin that could be recovered, but that it was a very small amount, twenty to one hundred times less than a toxic dose and that in his opinion either of these Coca-Colas conld have been drunk by anyone . without any ill effects.
Giving to the above testimony of appellee its strongest probative force, and ignoring appellant’s testimony, we hold that it is not sufficient to support a verdict for appellee, because there is no evidence disclosed by this record of a substantial nature upon which a verdict can be based. The contents left in the bottle of Coca-Cola in. question were never chemically analyzed and no one knows whether there were any harmful ingredients in these contents or not. To assume that there were .and such was the proximate cause of appellee’s injuries, would be the purest speculation and conjecture, and but a guess. It has long been the settled rule of this court that verdicts of juries cannot be based upon speculation and conjecture, or guess. In Russell v. St. Louis, S. W. Ry. Co., 113 Ark. 353, 168 S. W. 135, we said: “But conjecture and speculation, however plausible, cannot be permitted to supply the place of proof. St. Louis, I. M. & S. Ry. Co. v. Hempfling, 107 Ark. 476, 156 S. W. 171, and cases there cited.”
In the recent case of Coca-Cola Bottling Company of Southeast Arkansas v. Bell, 194 Ark. 671, 109 S. W. 2d 115, this court said: “Proof of the fact that a fly was found in the bottle, and that flies do carry the germ of the disease from which • appellee is suffering, does not suffice to support the verdict. It is mere conjecture that the fly found in the bottle was a carrier of the germ and had communicated the disease to appellee. The only definite proof upon the contamination of the drink is to the effect that no parasites were found therein; and while it may be true that this' test was not conclusive, the fact is that it is the only testimony upon that issue of fact, and it is mere surmise and conjecture to. say that the portion of the drink consumed by appellee was in fact tainted and infected with a germ which caused the disease, while the remaining portions of the drink were not.”
“Again in Lewis v. Jackson, 191 Ark. 102, 83 S. W. 2d 69, we said: “Giving to the testimony its strongest probative value will not supply matters not proved nor will, surmises be converted into verities. The proximate cause of tbe fatal accident cannot be determined. The verdict was possible.only by permitting, surmise and conjecture to supply facts incapable of proof. This was error. See Turner v. Hot Springs Street Railway Co., 189 Ark. 894, 75 S. W. 2d 675, and cases cited therein.”
The rule is again well stated, in Turner v. Hot Springs Street Railway Co., 189 Ark. 896, 75 S. W. 2d 675, as follows: “In the recent case of National Life & Accident Ins. Co. v. Hampton, ante p. 377, 72 S. W. 2d 543, we stated the applicable rule as follows: ‘It is the well-settled doctrine in this state that a jury’s verdict cannot be predicated upon conjecture and speculation,’ and continuing we adopted the rule as announced by the Supreme Court of the United States in Patton v. Texas & Pacific Ry. Co., 179 U. S. 658, 21 S. Ct. 275, 45 L. Ed. 361 as follows: ‘It is not.sufficient for the employee to show that employer may have been guilty of negligence — the evidence must point to the fact that he was. And where .the testimony leaves-the matter uncertain, and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is responsible and for some of which he is not, it is not for-the jury to guess between these half a dozen causes, and find that the negligence of the employer was the real cause, when there is not satisfactory foundation in the testimony for that conclusion.”
And again in Hough v. Leech, 187 Ark. 719, 74 S. W. 2d 970, this court said: “Verdicts of juries must be based on evidence, must be supported by some substantial evidence, and not on mere speculation. ” As we view the record in this case when we give to the testimony on behalf of appellee its strongest probative force, the most that can be said is. that it raises the mere conjecture that the illness suffered by her and the pain and suffering therefrom might have resulted from the consumption of the Coca-Cola in question. The evidence in this case falls far short of the character of proof required to support a judgment for damages under the principles laid down in the foregoing cases.
Our conclusion is that the trial court erred in refusing to instruct a verdict in favor of appellant, and since the case seems to have been fully developed it will be reversed and dismissed.
Humphreys and Mehaefy, JJ., dissent. | [
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GeiefiN Smith, C. J.
August 26,1927, C. C. Fincher and Estella Fincher, husband and wife, executed a warranty deed conveying to Dr. J. Beasley 105 acres of land. In the granting clause is a recital that the conveyance is subject to a contract of “sale and rent” executed by C. C. Fincher to I. B. Shinn, dated January 1, 1926. There was an express covenant binding Beasley, his heirs and assigns, to “carry out. the contract and to relieve the grantors of any liability thereunder.”
The Shinn contract called for payment to Fincher of $4,000 in equal annual installments, beginning November 1, 1926: There was reservation to Fincher of one-half of the oil, gas, and other minerals.
' November 5, 1927, Shinn paid the full obligation, whereupon Dr. Beasley and his wife delivered their deed. No mention of the mineral interest reserved by Fincher in his contract with Shinn was contained in the granting clause of Beasley’s deed to Shinn, but in the habendum this language appears: “Reserving one-half of all oil, gas and minerals in and under said land. ’ ’
October 13, 1928, Shinn and his wife conveyed 40 acres to Mrs. Leona Pearce Runnels. In the deed the description immediately follows the granting clause. Next in sequence is the following: “It is expressly agreed and understood by the parties that one-half of the mineral rights in and under said land has been retained by a former grantor”. This declaration is followed by the habendum.
January 22, 1930, Mrs. Runnels conveyed five acres of her forty to Mrs. Willie Bugg and Mrs. Lorena Greer. June 17,1934, Mrs. Greer conveyed her interest to Mrs. Bugg.
Dr. Beasley died. Suit was brought by his widow and heirs to reform the deed of November 5, 1927. The allegation was that through mutual mistake reservation of minerals was expressed in the habendum rather than in the granting clause.
The chancellor decreed reformation as to the Shinns, but held that as to Mrs. Runnels and Mrs. Bugg the reservation was not binding. All parties adversely affected have appealed.
It is contended by the Sliinns that their written contract with Fincher forfeited and that it was superseded by an oral agreement without reservation as to minerals; that the Fincher-Beasley transaction was a mortgage, and by reason of the oral agreement the written reservation is non-effective. Other defenses need not be stated.
Fincher testified that the property he sold Shinn Avas formerly OAvned by F. M. Graves. Dr. Beasley’s son, Herschell, tried to buy the land, but failed. Shortly after witness acquired title Herschell Beasley came to him and contended he had bought the place; and insisted upon a deed to it. After witness had contracted Avith Shinn, Herschell Beasley said that his father had some idle money he desired to invest. Inquiry was made in respect of the Shinn notes. Fincher said he would not sell them; that although Shinn had forfeited his contract, he had worked hard, had a large family, and “I am going to go ahead and let him pay for the place”. At that time Herschell did not mention buying the land, but explained that he wanted to make a loan for his father, adding: “I will go ahead and let Mr. Shinn pay for the place as you have agreed”. Fincher then testified: “As far as the mineral rights are concerned, I had one-half of them, but they were not mentioned be-tAveen Herschell and me .... I told him ‘all right’, and we made out the papers and he paid me off. That fall Mr. Shinn came to me very much excited. He told me that Herschell had ordered him to turn over the rent; that he was about to be dispossessed”. Fincher arranged to pay off the Shinn notes, instructing that the deed executed by Dr. Beasley be in favor of Shinn. Shinn later paid him in full.
In November, 1934, Shinn executed a mortgage to a Mrs. Heath in which it was recited: “It is expressly agreed and understood by the parties hereto that one-half of the mineral rights in and under said land has been retained by a former grantor”.
Herschell Beasley testified that in 1925 he tried to buy the land from Graves, who lived in Denison, Texas. Witness went to Denison and, as he thought, closed a deal. Payment was evidenced by check for $3,000. Graves explained that because of infirmities his wife was unable to go before a notary public at that time, but said that her signature and acknowledgment would be procured in a day or two, and promised to send the deed. Shortly thereafter the check and deed were mailed to witness with a letter from Graves, who stated that his wife had declined to join in the transaction. A few weeks later witness was informed by an abstracter that the property had been sold to Fincher.
When the deed from Beasley to Shinn was- delivered, Fincher surrendered to Beasley a copy of the Fincher-Shinn contract, including Shinn’s notes, “and made the contract a part of the deed”.
According to Herschell’s testimony, when Shinn paid the contractual obligation the scrivener who was preparing the deed from Beasley to Shinn took the description from the contract. Herschell insisted that if Shinn would produce the original deed it would show that the description was pasted to it, “and it will exactly fit what has been cut out [of the contract”].
The deed was prepared at the Peoples Bank by H. A. Fincher, cashier — brother of C. C. Fincher. Dr. Beasley was a director of the bank. Acknowledgment was before PI. A. Fincher, who was a notary public.
In Mason v. Jackson, 194 Ark. 236, 106 S. W. 2d 610, 111 A. L. R. 1071, the rule contended for in the instant case was discussed. J. T. Mason and his wife had “granted, bargained, sold and conveyed unto W. D. Jackson and unto his heirs and assigns forever” forty acres of land, description of which immediately followed the granting clause just quoted. The habendum was: “To have and to hold the same unto the said W. D. Jackson and unto his heirs and assigns forever with all appurtenances thereunto belonging, except one-half interest in all oil, gas and mineral rights.”
In the opinion it was said: “From earliest times the rule has obtained that where two clauses in a deed are totally repugnant to each other, the first will be received and the latter rejected .... Applying this rule to specific clauses, this court, in Whetstone v. Hunt, 78 Ark. 230, 93 S. W. 979, 8 Ann. Cas. 443, quoted with approval from Washburn on Real Property, as follows: ‘If there is a clear repugnance, between the nature of the estate granted and that limited in the habendum, the latter yields to the former’ ”.
A strong dissent to the rule upheld in the Mason-Jackson Case was expressed by two of the judges.
Our latest case dealing with this principle is Luther v. Patman, 200 Ark. 853, 141 S. W. 2d 42. Effect of the grant by Luther and his wife was to create what at common law would have been an estate tail, but which, under our statute, was a life estate in Mrs. Mitchell with the remainder in fee to her bodily heirs. Horsley, et al., v. Hilburn, et al., 44 Ark. 458. The habendum contained a condition subsequent in the form of a defeasance clause, expressed in this language: “To have and to hold the same unto the said I. N. Mitchell and unto her bodily heirs forever, with all appurtenances thereunto belonging, conditioned that she shall retain the same during her natural life, and an offer on her part during her lifetime to sell the said lands shall forfeit this conveyance and the said lands shall thereupon revert to the' estate of the grantor.” Luther v. Patman, 200 Ark. 853, 141 S. W. 2d 42.
In the opinion it was said: “We have examined’ the deed and have concluded that there is no ambiguity therein, and that the purport and effect thereof was to vest in Mrs. I. N. Mitchell a life estate on condition that she should keep the property . . . The purport of the whole deed is to deal with the life estate and we find no intention in it whatever to the effect that the grantor was attempting to or did grant a fee simple title to his daughter .... The only addition in the habendum clause not contained in the granting clause was that in case [Mrs. Mitchell] should sell the property she would forfeit her estate to the grantor. With this one exception the two clauses are exactly alike”.
In Moore v. Sharpe, 91 Ark. 407, 121 S. W. 341, 23 L. R. A., N. S., 93, it was held (in respect of a condition subsequent not performed) that the grantor could effect a forfeiture by merely conveying to another after the condition had been broken, without the necessity of prior entry.
The granting clause of the deed in the Luther-Patman Case did not contain an express condition for-forfeiture, although there was reference to an agreement by Mrs. Mitchell that she would keep .the land during her lifetime. Only in the habendum was there a declaration that upon condition broken the property should revert to the estate of the grantor. In respect of the life estate held to have been created in Mrs. Mitchell, effect was given to the forfeiture set out in the habendum. Otherwise, the result could not have been reached. It is in conflict with Mason v. Jackson, supra.
The Luther-Patman opinion carries a lengthy quotation from American Jurisprudence, vol. 16, § 237, p. 570. It was there said that the judicial prescript requiring rejection of language in an habendum creating an estate 'repugnant to that in the granting clause is not a rule of property, but one of construction — a rule to be resorted to only when the court cannot determine which of the clauses was intended to be controlling.
Many courts, including our own, have followed technical construction, hoary with common law fiat, and where an estate was created in the granting clause of a deed they have held to be void any attempted reservation in the habendum when the effect of giving force to the habendum would in any manner impair the prior grant.
In the instant case we are dealing with a transaction wherein mineral interests severable from the fee were in controversy. The question is whether such mineral interests may be retained in a deed when the reservation does not appear in the granting clause, but is clearly set out in the habendum. We confine onr holding to that situation.
Summarizing transactions of the parties, we have the following: Fincher, in his rental-sale contract with Shinn, retained a half interest in the minerals. In the granting clause of Fincher’s deed to Beasley the conveyance was made subject to the Fincher-Shinn contract. In Beasley’s deed to Shinn (representing a transaction consummated at Fincher’s direction) reservation of minerals appears in the habendum. In his deed to Mrs. Runnels in 1928 Shinn recognized the force of the reservation by Beasley. In his mortgage to Mrs. Heath in 1934 the interest was admitted by Shinn.
Purposes of the parties in all these transactions were expressed so clearly that no one could have been deceived or misled, and it is our view that these intentions are ineluctable and should be given effect. As to Mrs. Bugg, the matter in controversy appears in her chain of title.
To the extent that this opinion conflicts with Mason v. Jackson, supra, and other cases involving mineral reservations, they are overruled.
Reservations of mineral rights are so often attempted to be expressed in the habendum that it is not just to apply the technical rule of apparent limitation on the prior grant where mineral interests are excluded by subsequent language. Rather, consideration should be given the intentions of the parties as gathered from the entire document.
Under the view here expressed it is not necessary that the deeds be reformed. That part of the decree adjudging that the Shinns are not entitled to the relief prayed for is affirmed. The holding that Mrs. Runnels (and through her Mrs. Bugg) took title under conveyances subsequent to Beasley’s deed to the Shinns is reversed. The cause is remanded with directions to enter a decree quieting title in the original plaintiffs below to the half interest in minerals pertaining to. the entire tráct of 105 acres.
Mrs. Bugg is Mrs. Runnels’ mother and Mrs. Greer is a sister. Consideration in the deeds is $1, and love and affection.
Herschell Beasley’s assertion'that his father bought the property is based upon negotiations Herschell conducted for D'r. Beasley with Graves and delivery of check. Beasley filed suit, but dismissed it.
“Bodily heirs” are also included in the granting clause. | [
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Hitmphkeys, J.
Appellees brought suit against appellants in the circuit court of Union county, second division, for unlawful detainer and to recover possession of the west half of the northwest quarter, section 6, township 18 south, range 16 west, in Union county, Arkansas, claiming ownership thereof under a deed from the Federal Land Bank of St. Louis, dated June 24, 1988, alleging that said land formerly belonged to appellants, and that said appellants executed a mortgage thereon to the Federal Land Bank, which had been properly foreclosed and sold under a decree rendered by the Union county chancery court, and a deed thereto properly approved and affirmed by the court; that after the execution of the warranty deed by the Federal Land Bank to appellees, the appellees agreed that appellants might occupy the said property until January 1, 1939, that because the appellants refused to vacate the premises on January 1, 1939, appellees had been unable to rent the said property and had been damaged thereby; that the appellants are guilty of unlawful detainer and have no right, interest, title, equity or claim in and to the land, are paying no rent, have no contract or agreement, and have been notified to vacate the premises, which they refused to do.
The prayer of the complaint is that appellants be adjudged guilty of unlawful detainer and that they be dispossessed, and that the plaintiffs be placed in possession of the premises, and for all other and further relief to which they may be entitled whether specifically prayed for or not.
The complaint was duly verified and an affidavit of the rental value of the property was also filed showing that the rental value of the place for a two-year period was $60.
Appellants filed an answer denying each and every material allegation of appellees’ complaint and stating that they are the owners of said lands and had 'been such owners for more than thirty years;-had been living on said land in actual possession of same, farming same, and paying taxes on said land for more than thirty years, and that they claim said land by right of ownership and in effect prayed for a dismissal of appellees’ complaint.
The cause was submitted to the court, sitting as a jury, upon the pleadings and testimony ore terms taken in open court and made the finding that appellees were owners of the land under a warranty deed from the Federal Land Bank of St. Louis, Missouri, dated June 24, 1938; that the evidence was insufficient to find that any rental contract existed between appellees and appellants, and for that reason unlawful detainer did not lie, hut that the complaint would be treated as an action in ejectment.
The court found upon the record before him that the Federal Land Bank of St. Louis, Missouri, acquired the title to the land in controversy under a commissioner’s deed from L. B. Smith; that the relationship of landlord and tenant did not exist between appellees and appellants, but that the suit would be treated as a suit in ejectment and not as a suit in unlawful detainer and found that appellants had been in actual, notorious, adverse, uninterrupted, hostile and peaceable possession of the land in controversy for approximately thirty years, paying-taxes thereon until the foreclosure of the mortgage by the Federal Land Bank, and based upon said findings adjudged appellees the immediate possession of said land and that appellants should surrender to appellees said tract of land. The court also awarded damages to appellees against appellants in the sum of $30.
Appellants filed a motion for a new trial which is set out in full in appellants’ abstract of the pleadings and proceedings 'before the court alleging thirteen grounds why the judgment should be set. aside and a motion for new trial granted. The motion for a new trial was overruled over appellants’ exceptions and appellants prayed an appeal and were given ninety days to file a bill of exceptions.
A bill of exceptions was never filed, but appellants contend that upon the face of the record they are entitled to a reversal of the judgment because the court committed reversible error in treating the action as one in ejectment and in holding that appellees had traced their paper title to a common source revealing that their paper title was paramount to appellants’ title and right of possession.
The court specifically found that appellees obtained title to the land under a commissioner’s deed and this deed was an exhibit in the case, but we do not know what the contents thereof are as it has not been brought into the record and abstracted. The presumption is that it recited the mortgage which had been given by appellants to the Federal Land Bank, their failure to pay the debt it secured and the decree of foreclosure and order of sale of the property to satisfy the debt.
We find the following allegation in the complaint which was sworn to: “That formerly this land belonged to appellants and that they executed a mortgage to the Federal Land Bank, which had been properly foreclosed and the land had been sold by virtue of the decree rendered by the Union chancery court and the deed properly approved and affirmed by the court.”
It is true that the answer filed by appellants denied the material allegations of the complaint, but the answer was not sworn to.
If, as a matter of fact, the recitals contained in such deed showed that appellants had mortgaged the property to the Federal Land Bank and had made default in the payment of the debt, and that in a foreclosure proceeding the land had been ordered sold to pay the debt, it follows that the appellees alleged and proved a title originating in appellants and that appellees’ title grew out of appellants’ title by reason of the foreclosure. This was a sufficient'deraignment of title to a common source which was all that is required as a basis for an ejectment suit or proceeding and appellees would not have to go further back than the common source.
We think the complaint sufficiently deraigned title for the court to treat it as the basis of a suit in ejectment, and if a bill of exceptions had been filed it may have shown that all the allegations of the complaint were sustained by the evidence except the allegation relative to the relationship of landlord and tenant. In upholding the complaint as a suit in ejectment the court may have treated it as amended so as to conform to the evidence; so we see nothing in the point that the court erred in converting the cause of action from that of unlawful de-tainer to that of a suit in ejectment. As stated before, appellants never filed a bill of exceptions. There is nothing appearing in the record itself to show that appellants excepted to the court so treating the complaint and to show that appellants at any time excepted to the insufficiency of the deraignment of title. It is true that the ruling of the court on both of these questions is set out as grounds in the motion for a new trial as errors committed by the court, but it is not allowable to set out objections or exceptions which were not made in the course of the trial for the first time in a motion for a new trial.
We do not think the face of the record as abstracted shows that the court erred in any respect, and for that reason the judgment is affirmed. | [
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McHaney, J.
This appeal challenges the sufficiency of the evidence to support the verdict and judgment in appellee’s favor for $1,000 against appellant. Only a question of fact is therefore presented for decision. It is conceded, under the well-established rule of this court, that, if there is any evidence of a substantial nature to support the verdict when viewed in the light most favorable, and indulging every legitimate presumption in its favor, it must be permitted to stand. The facts, briefly stated, and about which there is little dispute, are as follows: Appellant operates a gravel plant and rock crusher on the south bank of Little River, getting its material therefrom. This material is taken from the river bed, dumped into a hopper, from which it passes through a large inclined cylindrical screen having round holes one and one-half inches in diameter. This screen revolves slowly, and the gravel and rock therein is washed by the injection of water. The small rock or gravel pass through the holes in the screen, drop into a chute and are conveyed to the gravel bin in which appellee was working at the time of the injury complained of, removing mud balls and trash or sticks that passed through the screen. The larger rock, such as would not pass .through the holes in the screen, gravitated to the lower end of the screen, dropped into another overhead chute, about 10 feet above the floor of the gravel bin, 14 feet long east and west by 13 feet wide north and south, and were conveyed by gravity to the rock crusher on the west side of the bin, where they were crushed. This latter chute was 5½ feet wide at the screen and tapered to two feet wide at the crusher, all the bias being taken from the north side of the chute. It was made of plank or boards, 2 x 12 inches, with sides of the same size, was 5½ feet long and dropped a distance of 2 feet from screen to crusher. The bottom of the chute was 8 inches below the screen, so that, when the rock fell out of the screen into the chute, they fell a distance of 8 inches'before striking the bottom of the chute and then on down at an angle or fall'of 2 feet in a distance of 5½ feet. Appellee was working, as above stated, in the bin over which this chute passed, on the north side next to the wall, about 5% feet distant, when, as he testified, a rock as large as his two fists fell or jumped out of the overhead chute, which had no screen or covering over the top, and struck him with great force on the left testicle, causing serious, painful and permanent injuries. No one else saw the rock fall. He made no outcry, nor did he communicate the fact of his injury to any one at the time, although another employee was working in the bin with him on the south side, and other employees were near by. Just what caused the rock to fall out of the chute and to travel a distance of 5½ feet there from and at right angles thereto, he was unable to explain. He says the first he saw of the rock it was in front of him on a level with his breast bone, and that it struck him in the manner stated; that he was seriously injured from some cause, there is little room to doubt, as two or more physicians who examined him testified thereto and that the injured part was perishing away.
Appellant contends that it was impossible for the injury to have happened in the manner stated. We cannot agree that it was impossible. While to us it may appear improbable, we cannot say it could not have happened or that it is contrary to the laws of nature, in view of the positive testimony of appellee that he was so injured and the result thereof, corroborated by others that he had received an injury. As said in 18 C. J., p. 19: “But improbability alone is not sufficient ground for holding a fact not proved where it is supported by competent and apparently credible evidence.” Nor can we say as a matter of law there was no negligence in failing to guard or screen the top of the chute to prevent rocks from falling out. The evidence shows that rocks did on other occasions fall out of that chute, endangering those working below. Rocks weighing as much as 100 pounds passed through it and with a steep incline of 2 feet in 5½ feet, plus the momentum of such a rock in a fall of 8 inches from the crusher, it was a question of fact for the jury to say whether a rock of smaller size might be thrown by being struck by a much larger one, and whether, in the exercise of ordinary care, appellant should have provided some safeguards to prevent injury to employees working in the bin.
There being some substantial evidence to support the verdict and judgment, the judgment must be affirmed. | [
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McIIaNey, J.
This action was brought by appellee against. J. M. Kurn and John Gr. Lonsdale, trustees in bankruptcy, for the St. Louis-San Francisco Railway Company, hereinafter called appellants, and one Hollo-well, to recover damages in a large sum alleged to have been sustained by reason of personal injuries on October 14,1937, while in the employ of appellants, occasioned by the alleged negligence of said Hollowell, a fellow-servant. Trial resulted in a verdict and judgment for $5,000, for a reversal of which-this appeal is prosecuted.
Appellee, Hollowell and a number of other employees were engaged as laborers in the dismantling and removing of the railway tracks, including rails, ties, etc., of the St. Paul branch of appellant railway company and in loading the rails and ties on cars. At the time of the alleged accident to appellee, he and Hollowell were carrying a heavy crosstie, weighing from 350 to 400 pounds, on their right shoulders to a bos car some 300 feet away, appellee -being in front, into which it was to be loaded. The complaint alleged that, ‘‘as was the custom and practice, when they got to the car they both stopped for the purpose of permitting two other employees inside the car to lift same off of plaintiff’s shoulder, so that same could be loaded into the car; that when plaintiff and said defendant so stopped the said defendant (meaning Hollowell) suddenly and without any signal or warning whatever to the plaintiff, carelessly and negligently stepped forward, thereby causing the plaintiff to be pushed' against said railroad car and .to stumble and his body to be twisted and wrenched by the heavy weight of said crosstie so that plaintiff was seriously and permanently injured,” as later detailed. Appellant’s answer was a general denial of all the material allegations of the complaint, and a plea of contributory negligence and of assumed risk, in bar of the action. Hol-lowell filed no answer or other pleading in the case, and did not testify to any fact in connection with this action, his only testimony being directed to the fact that he worked for appellants on the St. Paul branch job, and that he has a claim against appellants for an injury he received, he being represented in said claim by one of counsel for appellee.
We think the court erred in refusing to direct a verdict for appellants at their request on the ground that no actionable negligence is shown, conceding that the complaint states a cause of action, a question not raised or presented.
In detailing how the accident occurred, appellee testified as follows: “Q. In this particular instance, when you said you were hurt, what was the weight of that tie ? A. I judge somewhere between 350 and 400 pounds. Q. Was it helped up onto your shoulder where you took them up ? A. Yes, sir. Q. How far did you carry it to the box car? A. Between 200 and 300 yards. Q. When you reached the box car, what did you do? A. Stopped there and waited there a minute; there were two men ahead of us and waited until they got out of the way. Q. Where was the end of the tie? A. Pretty close to the door. Q. Was it or not on your shoulder? A. It was. Q. Then what happened? A. This Hollo- well stepped forward. Q. Did he let you. know that he was stepping forward? A. No, sir. . . . Q., What happened to you then? A. It threw me in a twist and threw me up against the side and 'bottom of the door on the box car and hurt me along in here. Q. Where was the tie at this time? A. Still on my shoulder. Q. Then what happened? A. These fellows took it off of my shoulder as quick as they could. Q. What did you do? A. I walked off and sat down.” On cross-examiantion he testified: “Q. Now, Boyd, let’s see; you and Hollo-well walked up with this tie, you on the front end, and he on the back end? A. Yes, sir. Q. And you walked up to the door on the front end, close to the door where the tie was to be delivered? A. Yes, sir. Q. And you stopped? A. Yes, sir. Q. You waited for the men inside to come and take it off your shoulder? A. Yes, sir. Q. And Hollowell came forward? A. Yes, sir; stepped forward. Q. And that threw you against the box car? A. Yes, sir; and in a strain. Q. You don’t know what made Hollowell do that? A. No, sir: Q. You were not looking at him. A. No, sir. Q. • Your back was to him? A. Yes, sir. ... Q. He didn’t explain why he stepped forward? A. No, sir. Q. Arid you don’t know now why he did? A. No, sir, Q-.. The ground was dry where you were standing? A. Yes, sir. Q. And where he was standing? A. Yes, sir. . . . Q. Did the tie go against the sidewall of the box car or did your body ? A. My body. . . . Q. The door of the car was open and that made the floor about level with your shoulder or something like that? A. The bottom of the door was right about along there (indicating). Q. Below the level of your shoulder? A. Yes, sir. Q. The man in the car would reach 'down and get the tie in his hands? A. Yes, sir!”
Two other witnesses testified they saw Hollowell take a step forward and shove appellee into the car. The two men working inside the car said they knew nothing about his getting hurt at the time, and only learned about it afterwards.
For -the purpose of this decision we accept appel-lee’s testimony and that of his witnesses as true. The mere,.fact that Hollowell took a step forward without notice to appellee that lie would do so cannot be said to be negligence. Negligence is tbe doing of something that a person of ordinary prudence would not do, or the failure to do something that a person of ordinary prudence would do, under the same or similar circumstances, and to be actionable there must be a violation of duty resulting in injury to another. Armour & Co. v. Rose, 183 Ark. 413, 36 S. W. 2d 70. Negligence is never presumed, but the burden is on the party asserting it to establish the fact by a preponderance of the evidence. Nor is it to be presumed from the fact of injury, and no one is liable in damages for a purely accidental injury. In this case, we think the evidence discloses a pure accident, for which appellants are not liable. Appellee and .Hollowell were performing a very simple operation — the' carrying of crossties to a box car to be loaded therein. They were given and needed na .instructions as to, how the work should be done. The fact that Hollowell took a step forward- may have been intentional on his part for some particular good purpose or reason, such as shifting his position on account, of the heavy burden, or it may have been inadvertent, unintentional and involuntary. They were carrying a heavy tie, weighing possibly 400 pounds. Hollowell was on the stand, but neither party questioned him as to whether he did take the step, or the occasion for doing so.
In St. L. S. F. Ry. Co. v. Burns, 186 Ark. 921, 56 S. W. 2d 1027, the late Justice 'Bxjtl'ee, speaking for the court, said: “It is a matter of ordinary observation that frequently there is some danger attendant upon the most common and ordinary transactions, but the care required is only to provide against such dangers as ought to 'be foreseen in the light of the attendant circumstances, and the ideal ‘prudent person’ will therefore not neglect what he can foresee as probable nor divert his attention to the anticipation of events barely possible, but will order his conduct by the measure of what appears likely in the ordinary course of events (citing-authorities).”
In Mo. Pac. R. Co. v. Medlock, 183 Ark. 955, 39 S. W. 2d 518, we said: “From aught that appears from this testimony the slipping or stumbling which caused Sleepy Reeves to release his hold on the car may have been due to an accidental misstep. Had the testimony tended to show even inferentially that the slipping or stumbling was due to a failure on the part of Sleepy Reeves to watch where he was walking, or to walk as slowly as he should or to inattention or disobedience or other misconduct in the performance of his duties, then such testimony would have created a question of fact upon the- issue of negligence for determination by the jury; but, since the cause of the slipping was conjectural only it was improper to submit the issue of negligence to the jury. Upon the record as it stands the court should have instructed a-verdict for appellant.” See also St. L. S. F. Ry. Co. v. Bryan, 195 Ark. 350, 112 S. W. 2d 641.
We think this case is ruled in principle by the above eases, but if there is any lingering doubt, then the recent case of Missouri Pac. R. Co. v. Vinson, 196 Ark. 500, 118 S. W. 2d 672, should dispel it. There the plaintiff, an experienced employee, was engaged with a fellow-employee in lifting and stacking crossties in a box car. He was lifting in front, facing the stack, with his side or back to the fellow-servant at the other end who was also lifting and facing the stack. Plaintiff got his end almost to the top of the stack when the fellow-servant gave it a shove, which threw him in a strain, causing him to lose his balance, and he felt a sharp pain in his side. He did not know just when the fellow-servant was going to shove, but thought he would see whether the tie was high enough before doing so. Negligence was laid on this account. In reversing a judgment for plaintiff and dismissing the action, we said: “The situation is this: An experienced laborer, assisted by a fellow-servant, was doing the kind of manual labor he was employed to perform. There were no concealed dangers. Appellant, as well as anyone else, knew the weight of crossties. - He, perhaps better than others, knew the height of the stack upon which the tie in question was to be placed. He undertook to lift his end high enough to clear the stack, and ‘supposed’ the fellow-servant, before pushing, would see that it was in position. ‘I got almost to the top, and, of course, there was a strain on me, trying to put it there, and this colored boy gave it a shove. ... I felt a sharp pain in my side. ’
‘ ‘ There is no evidence of a custom requiring the fellow-servant to wait (before pushing the tie) until ap-pellee gave a signal. Appellee merely ‘supposed’ that such fellow-servant would watch the process of elevation and would withhold the shoving operation until the tie had cleared the stack.
“Employers are not required to have a- foreman standing at the side of every person who works at a job alone or in conjunction with others. Industry is not charged with the duty of supplying every man who works with a blue print or chart showing how every step shall be taken, nor must a crier be present at all times to look, listen and anticipate on behalf of those who have the ability and the experience to exercise their own normal faculties. Two men performing the simple task of carrying and stacking crossties will be charged with knowledge that such ties possess weight, and that the law of gravity has not been suspended. Every man will be presumed to know more about his own strength and to be better informed as to his ability to lift than is a stranger, and every manual task, however,- menial, requires the exercise of some intelligence upon the part of those who undertake to perform it.”
Assuming, therefore, that Hollowell took the step as charged, and that appellee was injured, as he claims, it could not have reasonably been foreseen as a probable consequence that an injury would occur.
We think the case of Consolidated Construction Co. of Okla. v. Hatchett, 195 Ark. 556, 114 S. W. 2d 31, cited and relied on by appellee in his brief and in oral argument, is not in point here, as also the other cases mentioned.
Since no actionable negligence is shown, the judgment must be reversed, and as the cause has been fully developed, it will be dismissed.
Humphreys and Mehaeey, JJ:, dissent. | [
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Johnson, C. J.
This is an action seeking' recovery for an alleged common-law tort and arose under tlie fol lowing circumstances. Appellee, Connie Turner,' is a minor and a resident of the State of Arkansas. Appellant, Magnolia Petroleum Company, is a Texas corporation, but is authorized and- doing business in this State wherein proper service of summons was had upon it. On all material issues the testimony presented is not in dispute and it may ‘be summarized as follows:
“In July, 1931, appellee was employed by appellant to perform manual labor for it in and around Kilgore, in the State of, Texas. In pursuance of the contract of employment, appellee began the discharge of his duties, and, while being transported by appellant from Kilgore to his place of work on August 4,1931, the truck on which appellee was’being transported was negligently and carelessly wrecked by the driver, and appellee was seriously and permanently injured. The contract of employment, the service to be rendered thereunder by appellee and the injury received by him, all occurred in the State of Texas.”
The principal defense offered by appellant was to the following effect:
“That, under the laws of the State of Texas, on the date of the contract of employment and on the date of the injury, there was no common-law liability for torts existing in favor of appellee and against appellant. The uncontradicted testimony shows that on the date of employment and on the date of the injury appellant was a subscriber under the Texas Employers’ Liability and Workmen’s Compensation Insurance Law, and that appellee had, served no notice upon it reserving his rights to prosecute a common-law action for tort at the time or subsequent to his employment.”
The controlling question here presented for adjudication is, whether or not the Texas Workmen’s Compensation Laws afford an exclusive remedy under the circumstances of this case. Article 8306 of Vernon’s Annotated Texas Statutes. Section 3, in part, provides: “The employees of a subscriber and the parents of minor employees shall have no right of action against their employer or against any agent, servant or employee of said employer for damages for personal injuries, and the representatives and beneficiaries of deceased employees shall have no right of action against such subscribing employer or his agent, servant or employee for damages for injuries resulting in death, but such employees and their representatives and beneficiaries shall look for compensation solely to the association, as the same is hereinafter provided for.”
Section 3a of article 8306, cited supra, reads as follows: “An employee of a subscriber shall be held to have waived his right of action at common law or under any statute of this State to recover damages for injuries sustained in the course of his employment if he shall not have given his employer at the time of his contract of hire, notice in writing that he claimed said right or if the contract of hire was made before the employer became a subscriber, if the employee shall not have given the said notice within five days of notice of such subscription. An employee who has given notice to his employer that he claimed his right of action at common law or under any statute may thereafter waive such claim by notice in writing, which shall take effect five days after its delivery to his employer or his agent. Any employee of a subscriber who has not waived his right of action at common law or under any statute to recover damages for injury sustained in the course of his employment, as above provided in this section, shall, as well as his legal beneficiaries and representatives, have his or their cause of action for such injuries as now exist by the common law and statutes of this State, which action shall be subject to all defenses under the common law and statutes of this State. (Acts 1917, p. 269).”
Section 3c of article 8306 provides: “From and after the time of the receipt by the Industrial Accident Board of notice from any employer that the latter has become a subscriber under this law, all employees of said subscriber then and thereafter employed shall be conclusively deemed to have notice of the fact that such subscriber has provided with the association for the payment of compensation under this law. If any employer ceases to be a subscriber, he shall on or before the date on which his policy expires give notice to that effect to the Industrial Accident Board, and to such subscriber’s employees by posting notices to that effect in three public places around such subscriber’s plant. (Acts 1923, p. 384).”
In the case of Castleberry v. Frost Johnson Lumber Company of Texas, (Tex. Civ. App.) 268 S. W. 771, the Texas court held that the Workmen’s Compensation Act, heretofore referred to and cited, afforded an exclusive remedy to all employees against subscribing employers and used the following language in support thereof: “If the definition quoted is the correct meaning of the term ‘damages,’ then we must hold that the Legislature used it in that sense, intending to bar all actions against the employer by his employees, unless it clearly appeals that it was used in a different sense. Under article 5246-7, as quoted supra, it appears beyond doubt that damages, both actual and exemplary, were included in the scope of the legislation, because we find in article 5246-7 the Legislature referring to exemplary damages, excepting from its provisions exemplary damages where the death of the employee is brought about by the gross negligence, of the employer. Robertson v. Magnolia Petroleum Co. (Tex. Civ. App.) 255 S. W. 223. We must conclude, then, that the word in its broadest application was being considered by the Legislature, and was so used by them, and that in excepting one class of litigants from its provisions it was the legislative intent to include all others. The maxim expressio unius est exclusio alterius has application.”
It is insisted on behalf of appellee that the Texas Workmen’s Compensation Laws are procedural in effect, and therefore should not be permitted to control procedure in this State.
This court in the case of St. Louis Iron Mountain & Southern Railway Company v. Brown, 67 Ark. 297, 54 S. W. 865, held: “In all actions ex delicto for injuries to person or property, the right to recover, and the limit of the amount of the judgment, are determined and governed by the laws of the place where the injury was done.”
In 29 Cyc. 564, subdivision 4, under the head of Negligence, the rule is stated thus: “The law of the State where the injury occurs governs the right of the injured party to redress. ”
As construed by the Texas courts, the "Workmen’s Compensation Statutes of that State, are not merely procedural, 'but on the contrary take away from all employees of subscribers under said act their common-law rights of action for torts committed in that State, and substitutes therefor a compensatory award, and this, regardless of all necessary elements which constitute a common-law tort.
It is contended on behalf of appellee that he did no affirmative act at the time of his employment waiving his right to prosecute a suit- under the common law for a tort committed in Texas. Section 3 of 8306, heretofore referred to, answers definitely and certainly this contention. This provision, in effect, provides that all such employees shall look for compensation solely to the association. Section 3a provides, in effect, that such employee shall 'be held to have waived his right of common-law action, if he shall not have given his employer, at the time of his contract of hire, notice in writing that such rigffit was preserved.
The Supreme Court of Rhode Island in the case of Pendar v. H. & B. American Machine Company, 35 R. I. 321, 1916A. L. R. A., p. 428, had this exact question under consideration, and the first headnote reads as follows: “An employee cannot maintain an action in one State to recover damages for injuries received in another State where the contract of employment was made, if, at the time he entered into his employment, he failed to comply with the requirements of the local statutes that he notify the employer, who carried an employers’ liability insurance policy, that he intended to rely on his common-law-rights, which failure the statute makes a waiver of the right to maintain a common-law action. ’ ’
It will thus be seen that not only the statutes of Texas provide an exclusive remedy for common-law torts committed in that State by a subscriber of the Work men’s Compensation Law, but that such enactments are supported by eminent authority.
It is next insisted by appellee that, since he was a minor, under the age of 21 years, at the time he made his contract of employment, and at the time he received his injuries, he was not and is not precluded by the Workmen’s Compensation Law of Texas. In Scott v. Thompson & Ford Lumber Company, (Tex. Civ. App.) 291 S. W. 565, 568, the Texas court held: “The employees of a subscriber and the parents of minor employees shall have no right of action against their employer or against any agent, servant or employee of said employer for damages for personal injuries, and the representatives and beneficiaries of deceased employees shall have no right of action against such subscribing .employer or his agent, servant or employee for damages for injuries resulting in death, but such employees and their representatives and beneficiaries shall look for compensation solely to the association, as the same is hereinafter provided for. It thus plainly appears that the Legislature, in enacting the law, contemplated that minors would be employed, and made provisions for their protection. The court did not err in directing a verdict for appellee, and therefore the judgment is affirmed.”
It is our duty to follow the construction placed upon the statute in question by the Texas courts. Since the Texas court has specifically held that a minor does waive his common-law tort action, unless he gives written notice of his intention to preserve the same, we are, of necessity, constrained to hold likewise.
It is next said that to give effect to the Texas law in this State would be against our rule of public policy. This contention was advanced in Bradford Electric Company v. Clapper, 286 U. S. 145, 52 S. Ct. 571, wherein the court held:
“It is true that the full faith and credit clause does not require the enforcement of every right conferred by a statute of another State. There is room for some play of conflicting policies. * * * A State may, on occasion, decline to enforce a foreign cause of action. In so doing, it merely denies a remedy, leaving unimpaired the plaintiff’s substantive right, so that he is free to enforce it elsewhere. But to refuse to give effect to a substantive defense under the applicable law of another State, as under the circumstances here presented, subjects the defendant to irremediable liability.”
From what we have said, it is obvious that the right of appellee to maintain this action in the State of Arkansas is and should be determined by the fact as to whether or not he has such right in the' State of Texas. It is perfectly evident from authority herein cited that appellee has no right to maintain this action in the Texas courts. Since no such right exists in Texas, such privilege will not be afforded him by the laws of this State.
We therefore reach the conclusion that appellee is not entitled to bring and prosecute this common-law action in this State, as by his own act he has extinguished such right in the State of Texas.
The judgment is therefore reversed, and the cause of action dismissed. | [
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Mehaffy, J.
This suit was begun by the appellant against the appellee for $957.48. It alleged that the appellee was indebted to it in said sum for machinery and merchandise sold to appellee; that the amount was past due and represented the balance due on the purchase made by appellee. An' itemized statement was attached to the complaint and made part thereof.
Appellee filed an answer and cross-complaint in which it denied the material allegations in the complaint ; denied being indebted to appellant in any sum. In the cross-complaint appellee alleged that the machinery bought was unfit for the purpose for which it was purchased, and that appellee had been damaged in the sum of $700, and asked judgment against the appellant.
There was a trial by jury, and a verdict and judgment for appellee on its cross-complaint for $100. The case is here on appeal.
Appellant first contends that the damages awarded appellee were in excess of the amount claimed in cross-complaint. It is argued that, according to the undisputed testimony, the total amount due appellant at the date of trial was $968.95; of this amount $133.48 is interest. If, as the jury must have found, the machinery sold was unfit for the purpose for which it was purchased, appellant would not be entitled to interest. The evidence as to the damages is not very satisfactory, but we think it was sufficient to show that the damages were equal to the amount due appellant.
The cross-complaint alleged that appellee entered into a contract with appellant for the purchase of a new and complete boiler return system to be used in appellee’s laundry and cleaning plant, and that appellant warranted to appellee that such system, when installed by it, would operate in an efficient and satisfactory manner, and that, when the steam pressure in the boiler reached a certain point, the safety signal valve would blow a warning of such excess pressure, and said valve would automatically cut off or reduce the flow of fuel gas in such manner as to furnish proper steam pressure for the efficient operation of the system and protect the boiler against excessive pressure. It was also alleged in the cross-complaint that the appellant breached this contract by installing a used, second-hand and inferior system, instead of a complete new system; that the system installed by appellant is not the system purchased by appellee; that the agent of appellant informed appellee that the safety signal valve installed was second-hand, but that appellant would replace it with a new safety signal valve, but that the old valve would adequately operate and take care of the operation of the system.
Appellee was not acquainted with the character of equipment purchased, and did not know that a secondhand system had been installed, until some time after the installation. It then requested appellant to comply with its contract. It also alleged that its agents and servants were not familiar with the system, and had to rely on appellant; that, as a result of the breach of contract of purchase as above mentioned, the system failed to operate efficiently, and, because of the defects in it, the system was damaged by steam pressure in the sum of $500. Appellant agreed to install a new safetv signal valve, and ap pellee thereupon paid $200; that the promises made by appellant were all violated, and the equipment is worthless and of no value. Appellee prayed for judgment for $700 damages.
The evidence also showed that the automatic gas control was second-hand, and was sold to appellee for $37.50, and that a new one was worth $125.
Thomas Conley, a boiler-maker, testified that he was familiar with the value of second-hand boilers, and that a reasonable market value of the boiler in question would be $1,500, and that the damage depreciated it 50 per cent. This evidence seems to have been admitted without objection.
O. 'Brewster testified that he was solicitor for the laundry when the boiler flues burned, and this caused confusion and dissatisfaction and loss of two customers, and that, from these two customers, the laundry was getting $30 a week, $15 from each. There is no evidence as to whether this loss would probably continue, and no evidence showing the loss of other customers, and it is impossible to tell how much the jury found for these items.
Whatever amount of damages was given for loss of customers was speculative and uncertain. We think, however, this error can be cured by disallowing the judgment of $100 in favor of appellee, because there seems to be ample evidence to sustain a finding for appellee; that is, a finding that the damages are equal to the balance due appellant.
It is next contended that the court erred in not permitting the appellant to introduce testimony that the Kisco Return System was a well-known, well-advertised and generally used article of merchandise. There was no error committed by the court in refusing to permit this testimony. The evidence shows that the appellee did not make the purchase because of any advertising or general use of the merchandise, and knew nothing about it itself.
It is next contended that the court erred in refusing to instruct the jurv to find for the appellant in the sum proved to be due. The court, at the request of the appellant. instructed the jury in effect that there was no implied warranty that second-hand parts will perform effi ciently, but that the defendant must assume the risk that tbe second-band part will do the work as well as a new part, and that the failure of the second-hand part to perform efficiently does not invalidate the contract. The court also instructed the jury that the burden of proving the counterclaim was upon the appellee. The following instruction was given at the request of the appellant: “Where property sold is not reasonably fit for the purpose intended, the purchaser has two remedies: first, he may rescind the contract, surrender the property and recover his money, or, second, he may retain the property and recoup his damages for the deficiency when sued for the purchase price. In this case the defendant, El Dorado Laundry & Dry Cleaning Company, has elected to retain the property, and under the evidence it will be your duty to find for the plaintiff in the amount sued for, and, if you further find that the defendant is entitled to damages on its counterclaim, you will find for the defendant in whatever sum you find from the evidence it is entitled to. ’ ’
Instruction No. 8 was also given at the request of appellant. It reads as follows: “Before the defendant can recover damages on its counterclaim, it must prove by a preponderance of the evidence that there were substantial defects, not mere minor defects or adjustments, that would make the Kisco Boiler Return System unfit for use, and, if you find from a preponderance of the evidence that the defendant was damaged in any sum, you will arrive at the amount of the damages by determining the difference between the value of the property sold in good condition as represented and the value in its present deficient condition, if it was deficient, and render a judgment against El Dorado Laundry & Dry Cleaning plant for the difference, if any is shown. ’ ’
The. case seems to have been submitted to the jury on correct instructions, and as to whether the property purchased was fit for the use for which it was purchased, and also its value, were questions for the jury. The amount of damages to which appellee was entitled was also a question for the jury. We have already said that the evidence as to loss of customers was uncertain and speculative, and it is impossible to say what amount the jury gave for these items. However, the amount given for loss of customers would not exceed $100, and, as there appears to be sufficient evidence, without the evidence as to these items, to sustain the jury’s verdict in finding for the appellee, this error can be cured by disallowing the $100 in favor of appellee, reversing the judgment as to that, and entering judgment here for the appellee, which is accordingly done. | [
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Humphreys, J.
Appellees brought suit in the chancery court of White County to obtain separate judgments against the southwest quarter of the northwest quarter and the northwest quarter of the southwest quarter, section 32, township 8 north, range 5 west in said county for taxes due upon betterments assessed against said lands, alleging that the amount due the levee district for the years 1927 to 1932, inclusive, was $347.88, and that the amount due the drainage district was $849.72.
Appellant, who purchased said lands from the State of Arkansas on the 12th day of April, 1932, for $108, filed an answer alleging that the district taxes sought to be recovered against the lands in question were forever barred and extinguished when the State's tax title which he bought was confirmed on April 11, 1932, under the provisions of act 296 of the Acts of 1929. Relative to the confirmation of the tax title to said lands in the State, the. answer of appellant contained the following specific allegation:
“■On the 2d day of September, 1931, the State of Arkansas under and by virtue of act No. 296 of the General Assembly of the State, filed suit to quiet and confirm its title in and to the said lands. The plaintiffs herein, being the owners of said land, intervened and were made parties, to said suit at their own request. Cross-complaint was filed setting up various reasons as to why title should not be confirmed, refusing and neglecting, however, to comply with the provisions of paragraph 8 of said act 296 which afforded them an opportunity to protect their rights. On the 11th day of April, 1932, this court sustained a demurrer to the intervention and cross-complaint of the plaintiffs herein and gave a decree in which title to the lands described in the complaint of the plaintiff were quieted and confirmed in the State of Arkansas.”
Appellees filed a demurrer to the answer, which was sustained; whereupon appellee elected to stand upon his answer.
The court then found that the special improvement taxes due appellees prior to April 11, 1932, were extinguished by the confirmation decree., but that the special improvement taxes accruing after the confirmation decree were valid and subsisting liens upon the lands and ordered separate-decrees of foreclosure for same in favor of appellees and ordered the lands sold to satisfy said liens and decreed that deeds be executed by the commissioner who was ordered to make, the sale at the expiration of five years, the redemption period fixed in act 43 of the Acts 1915.
Appellant has prosecuted an appeal to this court from that part of the decree fixing the lien upon the lands for improvement taxes accruing after the date of the decree confirming the title to said lands in the State.
Appellees have prosecuted a cross-appeal to this court from that part of the decree barring the collection of the improvement taxes which accrued prior to the date of the decree confirming the title to said lands in the State, and in directing the commissioner to execute a certificate instead of a deed to the purchaser.
The pleadings reflect that the lands were forfeited and sold to the State of Arkansas for the nonpayment of the taxes from the year 1928, and that, after two years from the date of the sale, they were certified to the office of the Commissioner of State Lands; and that the title' thereto was confirmed in the State on the 11th day of April, 1932, under the provisions of act 296 of the Acts of 1929. The pleadings also reflect that the lands were included in appellees ’ levee and drainage districts, which were organized in 1914, and were subject to special improvement taxes therein at the time same were forfeited to and the title confirmed in the State.
The pleadings also reflect that appellees were the owners of the lands by purchase for delinquent improvement taxes at the time the State instituted suit to confirm the. title thereto and intervened in the suit for the purpose of attacking the forfeiture of the sale of the lands to the State and were denied the right to do so because they refused to tender or pay the. taxes due the State. The intervention of appellees was filed in the confirmation suit under authority of § 8 of act 296 of the Acts of 1929. Said paragraph 8 is as follows:
“Any special improvement district claiming that there is owing to it overdue, taxes on any land described in the State’s petition shall have the right to be made a party defendant to the State’s suit for the purpose of contesting the sale under which the forfeiture to the State was made. And any such improvement district upon the payment of the amount of taxes, penalty and costs for which the land was forfeited and all past-due taxes which would have accrued had the land remained on the 'taxi books at the valuation against it immediately prior to the forfeiture, shall be subrogated to the State’s lien for the amount so paid, and such improvement district may include said amount due the district for taxes, and shall have the right to foreclose for such amount as though the same had been assessed against such land in favor of the improvement district.”
Appellant contends that appellees were estopped by filing the intervention and failing to tender or pay the taxes due the State from thereafter asserting a lien ■ upon the lands for improvement taxes due them. Section 8 of said act is a privilege extended to improvement districts to pay the State taxes and be subrogated to the State’s paramount lien upon the lands for taxes due them. Certainly, it was not the intention of the Legislature to force improvement districts to pay the State’s taxes upon lands embraced within said district; otherwise to lose their improvement taxes after confirmation of the tax title in the State.
Appellant also contends that the effect of the confirmation of tax titles by the State under the provisions of act 296 of the Acts of 1929 where special improvement districts fail to take advantage of § 8 of said confirmation act was to extinguish all special improvement taxes levied by the district, both delinquent and immature. This court has ruled that the forfeiture and sale of lands to the State for nonpayment of taxes has the effect of suspending the enforcement of special improvement taxes against the lands during the time the title thereto remains in the State or until the lands return to private ownership. This rule was announced in recognition of the State’s paramount right of taxation. The rule was reiterated and stated as follows in the recent ease of Stringer v. Conway County Bridge District, ante p. 481. ‘ ‘The decree of confirmation does not relieve the purchaser from the State of payment of as sessments because tlie sale to the State does not extinguish the lien; it merely suspends the'lien while the title is in the State.”
Appellant argues that the districts became the owners of the lands in question by virtue of foreclosure proceedings to enforce their liens in the instant case, and that the rule announced in the Stringer case, supra, is not applicable. It makes no difference whether the delinquent improvement taxes have merged into a judgment or into the lands by foreclosure proceedings; still it is the duty of the purchaser to pay the districts’ special improvement taxes in order to extinguish the liens of the districts for the payment thereof, the enforcement of which has been suspended during the time the tax title remained in the State. The trial court erred in failing to order a sale of the lands to pay all the improvement taxes accruing both before and after the confirmation of the title in the State. Appellees contend the court erred in directing the commissioner to execute a certificate instead of a deed to the purchaser at the sale for the improvement taxes. Appellees argue that under the provisions of §§ 3632 and 6836 of Crawford & Moses’ Digest, the purchaser at the sale was entitled to a deed showing an indefeasible title unassailable either in law or equity, and that to deny the purchaser such a deed would impair the obligation of the contract the districts made with the bondholders. It is true that when the districts were created and the bonds issued, §§ 3632 and 6836 were in force, but the executions of the deeds provided for immediately after sale were a part of the foreclosure proceeding, or, more accurately speaking, a part of the remedy for enforcing the lien against the lands for delinquent improvement taxes. By act 359 of the Acts of 1925' the, right to redeem the lands within two years after the sale was granted to owners, so the time was extended two years from “immediately” for the purchaser at the sale to obtain a deed. This was not an unreasonable extension, and therefore was not a denial of a right or the impairment of a contract. It was a moratorium that did not materially interfere with or abridge the contract. Authority for this construction of the act extending the time of redemption will he found in the case of Sewer Improvement District No. 1 of Wynne, Ark., v. Delinquent Lands, ante, p. 738.
Appellees also contend that act 129 of the Acts of 1933 repealing a part of act 43 of the Acts of 1915 (Crawford & Moses’ Digest, § 5642), to the effect that the purchaser at the sale should have the right to possession of the lands and process therefor, impaired the obligation of the contract and was void. The districts were created and in operation prior to the passage of act 43 of the Acts of 1915, so appellees are in no position to assail the constitutionality of act 129 of the Acts of 1933 repealing that part of act 43 of the Acts of 1915 about which they complain. Act 43- of the Acts of 1915 was not a part of their contract and cannot be read into it.
On account of the errors indicated, the judgment is reversed on direct appeal and reversed in part on cross-appeal with directions to enter judgments against the lands for the entire amount of the improvement taxes prayed for in the complaint, and to order a sale thereof with direction to the commissioner to execute a certificate for a deed thereto at the expiration of Wo years from the date of sale.
Smith and McHaney, JJ., dissent. | [
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Mehaffy, J.
The appellant, Missouri State Life Insurance Company, issued to the Missouri Pacific Railroad Company three g'roup policies. One of them provided for indemnity in the event of accidental dismemberment ; one proidded for indemnity for a period of not exceeding 26 weeks for sickness, and the other provided for indemnity for total and permanent disability. The appellee, an employee of the Missouri Pacific Railroad Company, Avas issued a certificate under each of the group policies.
On May 3,1931, the appellee lost a leg in an accident, and the company paid him $500 in settlement of his claim under the policy Avhieh provided for indemnity in cases of accidental dismemberment. This policy therefore is not involved in this suit.
The next policy provided for payment of $10 per week for the period of disability, not exceeding 26 consecutive weeks. The appellant paid on this policy $77.14. Suit was brought on this policy for the balance due, and also on the policy for total and permanent disability, and for 12 per cent, damages and attorney’s fees.
It was contended in the court below that § 6155 of Crawford & Moses’ Digest, when applied to a case in which the insurer has reasonable grounds for contesting the claim, is unconstitutional. Appellant states, however, that its understanding is that a case is now before the Supreme Court of the United States involving the constitutionality of our statute as construed by this court. This court held that the statute was constitutional, and that the good faith of the insurance company did not excuse it from the plain provisions of the statute. Life & Casualty Ins. Co. of Tenn. v. McCray, 187 Ark. 49, 58 S. W. (2d) 199.
This case was appealed to the Supreme Court of the United States, and, since .the appellant prepared its brief, the Supreme Court of the United States has decided the case. It was decided March 5, 1934, 54 S. Ct. 482. That court held that the allowance of attorney’s fees and 12 per cent, damages in insurance cases did not violate the provisions of the Federal Constitution, and affirmed the case. The questions as to attorney’s fees and 12 per cent, damages is therefore settled by the decision of the Supreme Court of the United States.
The next question argued by appellants is the right of appellee to recover $10 a week for the balance of 26 weeks, for which appellant had not paid. It was the contention of the appellant that appellee had no ailment outside of the loss of his leg, and physicians testified that the claim of heart disease was nothing but a pretense. Other physicians, however, testified that he was totally and permanently disabled because of other ailments. This was really the only controversy as to this claim, and appellant states in its brief: “The jury’s verdict has settled this controverted question of fact.”
There is therefore nothing for us to consider except the action on the policy for $1,000 for total and perma nent disability benefits. Appellant contends that, before appellee would be entitled to recover under this certificate, it was necessary that he keep the same in force for a period of six months following May 3, 1931, the date on which he was injured, and that appellee had not kept this policy in force by the payment of premiums. It is admitted that no premiums were paid on this certificate after the month of July, 1931, and appellant contends that for that reason the certificate or policy was lapsed and forfeited on account of failure to pay premiums.
Appellant’s contention cannot be sustained for the reason that the undisputed evidence shows that appellant had more than enough funds in its hands belonging to the appellee to pay the premiums.
“The rule is that insurance companies cannot declare forfeiture of policies for the nonpayment of premiums where they have sufficient funds in their hands belonging to the insured to pay the premium, and the duty rests upon them to use the funds to pay the premiums and thereby prevent forfeitures.” Illinois Bankers’ Life Ins. Co. v. Wilken, 187 Ark. 337, 59 S. W. (2d) 1046; Security Life Ins. Co. v. Matthews, 178 Ark. 775, 12 S. W. (2d) 865; American Nat. Ins. Co. v. Mooney, 111 Ark. 514, 164 S. W. 276; Mo. State Life Ins. Co. v. Miller, 163 Ark. 480, 260 S. W. 705; Knights of Pythias of North America v. Sanders, 174 Ark. 279, 295 S. W. 25; Pfeiffer v. Mo. State Life Ins. Co., 174 Ark. 783, 297 S. W. 847.
It is contended that the appellee was not totally and permanently disabled. This court has many times decided what constitutes total and permanent disability. “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 character and degree that common care and prudence required Mm to desist from his labor so long as was reasonably necessary to effect a speedy cure.” Mo. State Life Ins. Co. v. Snow, 185 Ark. 335, 47 S. W. (2d) 600; Ætna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S. W. 335; Industrial Mutual Indemnity Co. v. Hawkins, 94 Ark. 417, 127 S. W. 457.
The evidence as to whether total disability existed was in conflict, and the verdict of the jury settled this question of fact.
We find no error, and the judgment of the circuit court is affirmed. | [
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John I. Purtle, Justice.
Elvis Johnson, a minor, and Mae Hester Hudson, his mother, filed suit for personal injuries and expenses arising out of an automobile accident against the decedent’s estate after the statute of nonclaim had expired. Appellee moved for dismissal of the complaint because the liability insurance carrier for decedent had been discharged in a federal district court by way of a Bill of Interpleader. The trial court agreed with appellee’s motion and dismissed the complaint. Appellants bring this apeal from the order of dismissal.
The question to be decided by this Court is whether a minor and his mother may maintain tort actions against the estate of decedent after the expiration of the statute of non-claim when there was in force a policy of liability insurance on decedent’s vehicle which policy has been depleted through the use of a Bill of Interpleader in the federal district court. We hold the court erred in dismissing appellants’ complaint.
The facts involved an automobile collision in which the tortfeasor, Robert Poore, was fatally injured. Several suits and claims were filed in the administration of the Poore estate. The liability carrier for decedent filed a Bill of Interpleader in the federal district court and was subsequently discharged after distribution of the limits of its policy among the parties to the interpleader suit.
Appellant, Elvis Johnson, a minor, nor his mother were parties to the interpleader in the federal court proceeding. The suit on their behalf was filed on June 24,1976, which was about 6 months after the order of distribution by the federal district court.
The statutes in question are Ark. Stats. Ann.§§ 37-226 (Repl. 1962) and 62-2601 (Repl. 1971).
Ark. Stat. Ann. § 37-226 (Repl. 1962) provides:
If any person entitled to bring any action, under any law of this state, be, at the time of accrual of the cause of action, under twenty-one (21) years of age, . . . such person shall be at liberty to bring such action within three (3) years next after full age, or such disability may be removed.
Ark. Stat. Ann. § 62-2601 (Repl. 1971) provides:
Limitations On Filing of Claims. — a. Statute of Nonclaim. Except as provided in Sections 111 (§ 62-2602) and 119 (§ 62-2610), other than expenses of administration and claims of the United States, are not barrable by a statute of nonclaim, but including claims of a state or territory of the United States, and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract or otherwise, shall be forever barred as against the estate, the personal representative, the heirs and devisees of the decedent, unless verified and presented to the personal representative or filed with the Court within six (6) months after the date of the first publication of notice to creditors.
f. Certain Tort Claims Not Affected. Notwithstanding the foregoing provisions relating to the time for filing claims against an estate, or any other provisions of this Probate Code, a tort claim or tort action against the estate of a deceased tortfeasor, to the extent of any recovery which will be satisfied from liability insurance or from Uninsured Motorist insurance coverage and which will not use, consume or deplete any assets of the decedent’s estate, may be brought within the limitation period otherwise provided for such tort action. No recovery against the tortfeasor’s estate shall use, consume, diminish, or deplete the assets of the decedent’s estate, and any such recovery shall not affect the distribution of the assets of the estate to the heirs, next of kin, legatees, or devisees of the deceased tortfeasor unless a claim is filed in the manner and within the time provided by the Probate Code for filing claims against the estate.
No doubt the trial court dismissed the complaint because the policy limits had been paid into the court and the carrier had been discharged. The appellants were not named as parties in the interpleader action and, therefore, are not bound by that proceeding. It is true the carrier had the right to file its Bill of Interpleader but it was incumbent upon it to name all parties who had an interest in the proceeds of the policy. Since appellants’ rights, if any, to the proceeds of the policy had not been determined, it was error for the court to dismiss the complaint.
We do not find that we have previously interpreted paragraph (f) of Ark. Stat. Ann. § 62-2601 (Repl. 1971). When an interpleader is filed it is necessary for all those having an interest in the proceeds to be made parties to the action if they are to be bound by the proceeding. Our prior interpretations of this statute were made before the enactment of paragraph (f) in 1971. Therefore, they have no preceden-tial value in the case at bar. To hold otherwise would allow an insurance carrier to discharge its responsibility under a policy of liability insurance by selecting the claimants it preferred to the detriment of others regardless of the merit or value of the claims.
We do not know whether the appellant Johnson will be successful in obtaining a judgment against the estate at the trial of this action. However, we would ignore the plain meaning of the statute if we were to hold that, as a matter of law, the appellant is not entitled to a determination of the rights alleged in the complaint. In so holding, we do not imply that appellant would be entitled to obtain satisfaction of any judgment against the assets of the estate of the decedent.
That portion of the complaint filed by the mother of Elvis Johnson on her own behalf is an independent claim and since it was filed within 3 years it is not barred by the non-claim statute. Therefore, we return the matter to the trial court with directions to reinstate the compláint.
Reversed and remanded. | [
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Conley Byrd, Justice.
Appellant Sammy Duke while on parole from two previous convictions for burglary and grand larceny was charged on February 12, 1979, with the offense of burglary of Union Supply Company, allegedly committed on or about February 9, 1979. Following plea negotiations during which appellant was told that habitual criminal charges would be filed against him if he did not enter a plea of guilty, the State, without further notice to appellant, amended the information on March 8, 1979, to allege that appellant had two or more previous felony convictions and therefore was a habitual offender pursuant to Ark. Stat. Ann. §41-1001 (Repl. 1977). Appellant’s actual knowledge of the amended information alleging the habitual criminal charge came after the jury was chosen on March 12, 1979. After a trial on that day appellant was found guilty and sentenced to 20 years imprisonment. For reversal appellant contends that the trial court erred in proceeding to trial on the amended information charging him as a habitual offender and that the enhanced portion of the imposed sentence is invalid because the proof at trial did not demonstrate that appellant was represented by counsel in the proceedings that were used to enhance the punishment.
We find no merit to either contention. Appellant, being on parole from the former convictions, and having been advised during plea negotiations that such charges would be filed, is not in a position to complain of prejudice or allege surprise. See Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977). Furthermore, the record shows that appellant upon being advised of the charges did not request a continuance. See also Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978).
The suggestion now made, that the proof does not show that appellant was represented by counsel on the prior convictions, was not raised in the trial court. Consequently, we will not consider such an objection for the first time on appeal. In making this disposition, we point out that appellant does not contend that he was not represented by counsel on the prior convictions, but only states that the proof does not show that he was represented by counsel.
Affirmed.
We agree: Harris, C.J., Holt and Purtle, JJ. | [
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Prank Hour, Justice.
This is an action to recover damages from a parent for his child’s negligent act. Appellee’s automobile was damaged in a collision with a vehicle owned by appellant and being driven by appel hint’s fourteen-year-old son. The complaint, as amended, alleged parental permission to drive the vehicle and that the negligence of appellant’s son is imputed to appellant by virtue of Ark. Stat. Ann. § 75-315 (c) (Supp. 1967).
The trial court sustained appellant’s demurrer to the complaint. On appeal from that order we reversed and remanded the case for trial. Vaught v. Ross, 244 Ark. 1218, 428 S.W. 2d 631 (1968). Thereupon the appellant filed an answer and counterclaim. The issues were joined by appropriate pleadings. The trial court, sitting as a jury, found that the minor was guilty of negligence which proximately caused the accident and that (lie child’s negligence was imputed to his father, the appellant. Judgment was entered for appellee in the sum of $1,449.75, and from that judgment comes this appeal. Appellant contends as ground for reversal that there is no substantial evidence to support a judgment imputing the negligence of his son to appellant.
Ark. Stat. Ann. § 75-315(c) provides:
"If aip7 person who is required or authorized b}7 Subsection (a) of this Section to sign and verify the application of a minor in the manner therein provided, shall cause or knowingly cause or permit his child or ward or employee under the age of eighteen (18) years to drive a motor vehicle upon any highway, then any negligence or wilful misconduct of said minor shall be imputed to such person or persons and such person or persons shall he jointly and severalty liable with such minor for any damages caused by such negligence or wilful misconduct. The provisions of this Subsection shall apply regardless of the fact that a driver’s license may or may not have been issued- to said minor. For purposes of this Act, a minor is hereby defined to ho any person who has not attained the age of eighteen (18) years.” [Emphasis added]
Subsection (a) requires both parents, if living and having custody, to sign and verify under oath the application of their minor child for a driver’s license.
Ajjpellant’s answer to the complaint admitted that a collision occurred between a vehicle owned and operated by appellee and a vehicle owned by appellant and driven by his fourteen-year-old son. It was specifically denied that the vehicle was being driven with permission of appellant.
Appellant and his wife were called as witnesses by appellee. They testified that their son, while working with his father, had been allowed to drive a truck in the woods from one pile of timber to another, but that to their knowledge he had never driven a family vehicle upon the highway. Appellant was not at home on the day of the accident. Mrs. Ross testified that she had company and was at home when her son drove the car, unnoticed and without permission. She last saw the ear in the yard on the afternoon of the day the accident occurred. Mrs. Ross further testified that “sometimes his buddies drove” but that she did not give her son permission to drive the car. In her own words: “He had not been allowed to drive out.”
Appellant contends that the burden of proof is upon the appellee, plaintiff in the trial court, and that “there is not one iota of evidence” in the record to show that appellant caused or permitted his son to drive the family automobile upon the highway. Appellee asserts that the testimony of appellant and his wife is unbelievable, that the trial court chose to disregard their testimony and that, therefore, there is sufficient evidence to support the judgment entered upon the court’s findings of fact. Appellee further asserts that the proof of permission or the lack of it in this case is solely within the knowledge of the parents and, therefore, that the burden of proving lack of permission should be placed upon the parents of the minor.
This is a case of first impression in construing this subsection of § 75-315.
The rule announced in Mullins v. Ritchie Grocer Co., 183 Ark. 218, 35 S.W. 2d 1010 (1931), bears on the issue in the case at bar. In Mullins we held:
‘ ‘ The doctrine is settled in this state that, if the automobile causing the accident belongs to the defendant and is being operated at the time of the accident by one of the regular employees of the defendant, there is a reasonable inference that at such time he was acting within the scope of his employment and in the furtherance of his master’s business. The inference or presumption of fact, however, may be rebutted or overcome by evidence adduced by the defendant during the trial. Where the evidence on this point is contradictory, the question is one for the jury. Where the facts are undisputed and uncontradicted, it becomes a question for the court.” (citing cases)
The rule has been restated and consistently followed. See Boehmer v. Short, 184 Ark. 672, 43 S.W. 2d 541 (1931); Ford & Son Sanitary Co. v. Ranson, 213 Ark. 390, 210 S.W. 2d 508 (1948).
We think the doctrine of Mullins is applicable to the instant case. In the- case at bar the appellant owned the automobile, and it was being driven by his unlicensed minor son. There was evidence that the boy had been permitted to drive other than upon the highway, and, according to the testimony of his mother, “Sometimes his buddies drove.” When we consider this evidence and the reasonable inferences deducible therefrom, we think that, in the case at bar, appellee made a prima facie case of liability against appellant.
Next we turn to the question Avhether the prima facie case against appellant was overcome bjr testimony from appellant and his wife that they had not given their son permission to drive the car upon the highway. In answering this question it is appropriate to review several established principles of law. •
In Skillern v. Baker, 82 Ark. 86, 100 S.W. 764 (1907), we said:
‘ •' * 8 * 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, and a verdict directed based as on such evidence. But this rule is subject to many exceptions, and where the witness is interested in the result of the suit, or facts are shown that might bias his testimony or from which an inference may be drawn unfavorable to his testimony or against the fact testified to by him, then the case should go to the jury. ’ ’
See, also, 29 Am. Jur. 2d Evidence, § 162, and 31A C.J.S. Evidence, § 119.
In the case at bar the father is the defendant, and both parents are witnesses. It must be said that, as such, they are interested in the result of this action.
No rule is more firmly established than the rule that the credibility of witnesses and the weight to bo given their testimony are solely within the province of the triers of fact. Plunkett-Jarrell Grocer Co. v. Freeman, 192 Ark. 380, 92 S.W. 2d 849 (1936).
In Rex Oil Corporation v. Crank, 183 Ark. 819, 38 S.W. 2d 1093 (1931), the appellant was found to be liable for the negligence of the driver of appellant’s truck. It was admitted that the driver was in the general employ of the appellant corporation, and that the truck he was driving was the property of the corporation. The employee testified that on the morning of the day the colli sion occurred he had wholly abandoned the service of his master, and was pursuing his journey on a purely personal matter. The testimony of the employee was corroborated by that of his wife and a companion who were traveling with him. We followed Mullins v. Richie Grocer Co., supra, and held that despite their disclaimer there was a prima facie case made that the employee was in the conduct of his master’s business. Further, we said that it was for the jury to say “whether such direct testimony overcame the inferences of fact raised by the circumstances proved. ’ ’ See, also, Ball v. Hail, 196 Ark. 491, 118 S.W. 2d 668 (1938); Marshall Ice & Electric Co. v. Fitzhugh, 195 Ark. 395, 112 S.W. 2d 420 (1938); Casteel v. Yantis-Harper Tire Co., 183 Ark. 912, 39 S.W. 2d 306 (1931).
Accordingly, in the case at bar it was for the trial court, sitting as a jury, to weigh the inference of permissive use with the direct testimony to the contrary, and to say whether this “direct testimony overcame the inferences of fact raised by the circumstances proved. ’ ’
Our interpretation of this subsection [§ 75-315(c)] is' in accord with and reaffirms our view of parental responsibility recently expressed in Bicker v. Owens, 234 Ark. 97, 350 S.W. 2d 522 (1961). There we said that a parent is liable, under certain circumstances, for negligently permitting, actively or passively, a minor child to commit a willful and negligent act which could reasonably be expected to cause an injury to another person. There we said:
“It is within reason and good logic to say that the parent has a responsibility to control minor children while they are in their formative years. For while they are not in the custody of the parents, absent any official action to the contrary, no other source of'control may be found. Of course minors above a certain age are subject to criminal and civil sanctions Tout these sanctions are remedial rather than preventative. There is a question whether the civil sanctions are of any consequence since judgments against minors are of little practical effect. The old adage ‘an ounce of prevention is worth a pound of cure,’ could be applied in these situations if the responsibility for the prevention is placed on the parents.”
As was said in the concurring opinion, we fervently trust that this opinion “will be effective in bringing to the attention of parents their responsibility for the actions of their minor children.”
Judgment affirmed. | [
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Prank Holt, Justice.
This is an eminent domain proceeding in which the appellant took a pipeline right-of-way easement across adjoining lands belonging to the appellees, Paul D. and Mary Pugh and Beba Ryan. The two separate actions were consolidated for trial and appeal purposes. The pipeline easement resulted in the total taking of 0.88 of an acre of the Pughs’ land and 1.39 acres of Mrs. Ryan’s land. This easement is 30 feet in width and is parallel to a 50-foot right-of-way easement acquired in 1959 by the appellant. Thus, the present width of the pipeline easement is 80 feet, within which there are now two parallel pipelines. The Pughs and Mrs. Ryan each asked $3,500 compensation. A jury awarded the Pughs $938 and Mrs. Ryan $1,084 damages. From the judgments upon those verdicts comes this appeal. The appellant' generally contends for reversal there is no substantial evidence to support the verdicts in excess of the value of the acreage actually acquired within the right-of-way-.
We first discuss appellant’s assertion that there is no substantial .evidence to support that part of the jury’s verdicts which allowed damages for injury to property outside of the right-of-way. The appellant pressed this, point following the verdicts by filing -a Motion For Judgment Notwithstanding The Verdict, asking that a Mr. Pledger ’s evidence of $350 and $450 timber damage outside the right-of-way on the Pughs’ and Ryan’s property respectively be disallowed. It was asked that the judgments, after this disallowance, reflect $688 for the Pughs and $734 for Mrs. Ryan. The motion was denied. Wé think the motion had merit.
The appellees presented two expert value witnesses whose testimony was very similar. One of these was Jim Pledger who is a licensed real estate broker and has been engaged in the real estate business for many years. After the case was submitted, the jury through its foreman asked: “I would like to have the figures from Mr.Pledger’s appraisal of the Rryan land and the Pugh land.” He was then reminded that Pledger’s testimony was that the difference. in the before and after value of the Ryan land was $1,184 and the Pugh property $1,038. Within a,few minutes, the jury returned its verdict for damages in the sum of $1,084 and $938 respectively, or exactly $100 less in each instance. According to Mr. Pledger, he allocated the damages to the Pugh property as being $188 for the acquisition of the 0.88 of an acre; $350 damages to the timber adjacent to the 30-foot strip; and $500 for residual da.mag;e to the balancé of the' property. His appraisal of damages to the Ryan property was based upon $234 for the 1.39 acres acquired; $450 damages to the timber adjacent to tlie 30-foot strip; and $500 residual damage.
According to appellant’s evidence, the greatest difference between the before and after value of the Pugh’s property was $150 and that of the Ryan property was $270.
In Arkansas State Highway Commission v. Ptak, 236 Ark. 105, 364 S.W. 2d 794 (1963) we reiterated that:
“ * * * Where a witness gives his opinion as to damages, such testimony must be considered in connection with related facts upon which the opinion is based. * * * Whether there is substantial evidence to support a verdict is not a question of fact, but one of law. Because a witness testifies as to a conclusion on his part does not necessarily mean that the evidence given by him is substantial, when he has not given a satisfactory explanation of how he arrived at the conclusion.”
When we apply these well settled principles, we are of the view that there is no competent or substantial evidence by any witness for the appellees to support an award to either property owner for damage to timber adjacent to or outside the right-of-way. It appears that the claim for damages to the timber adjacent to the new right-of-way is based principally upon evidence that some of this timber is now affected bv a beetle disease. However, appellees’ witness, Mr. Pledger, who testified about this disease, admitted that it was caused by a condition that existed before the acquisition of this 30-foot strip. We think appellant’s motion to disallow this element of damages should have been granted.
Appellant now urges on appeal that there is no substantial evidence of any element of damages occasioned by the additional or expanded severance of the lands. According to Mr. Pledger, the. resulting-damages were $500 to each landowner. His appraisal appears to he the highest of the competent evidence offered by value witnesses. Another expert witness reduced his figure from $500 to $250 during his testimony. According to the appellees’ evidence, enlarging the right-of-way reduced the property in value by making it less attractive for sale upon the market; its accessibility was affected and logging operations were made more difficult. Although the reasons or related factors for this appraisal of damages are certainly vague and somewhat questionable, we think there is sufficient substantial evidence for the jury’s consideration on this issue. The highest and best use of this property was for timber production.
As previously indicated, we agree with appellant’s alternative contention that the court erred in not granting its Motion For Judgment Notwithstanding The Verdict. The competent evidence in the case at bar does not justify the Ryan judgment in excess of $734 [$1,184 less $450] and the Pugh judgment in excess of $688 [$1,038 less $350]. Accordingly, the judgments are affirmed upon condition of a remittitur of any sums in excess of these amounts. Otherwise, the judgments are reversed and remanded for a new trial. | [
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Conley .Byrd, Justice.
Appellant Turkey Express, Inc. sued appellees Skelton Motor Co., Inc. and Lawrence K. Phipps d/b/a Lawrence’s Garage in tort for damages to appellant’s truck and trailer and the turkeys thereon as a result of appellees ’ alleged negligence in connection with removal of appellant’s truck and trailer from a ditch near Jane, Missouri. The jury, which has been instructed on the contributory negligence law of Missouri, found the issues in favor of appellees. For reversal, appellant relies on the following points:
1. The trial court erred in applying to this litigation the conflict of laws rule of Lex Loci Delicti, or the law of the place of harm. . .
2. The trial court erred in not sustaining the appellant’s objection that only the law of Arkansas should be applied in this case.
The appellees contend that appellant is not entitled to prevail here because it obtained no ruling of the trial court oil tlie issues now raised nor made any objections to the instructions submitted to the jury.
The record shows that pursuant to the Uniform Interstate and International Procedure Act, Ark. Stat. Ann. § 27-2504 (Supp. 1967), Skelton Motor Co., Inc. gave notice of its intent to apply the contributory negligence law of Missouri. Thereafter, appellant filed an instrument called a “reply” as follows:
“Comes now the plaintiff, Turkey Express, Inc., and in reply to the motion of Skelton Motor Company, Inc. that the law of the State of Missouri should be applied in the above-styled cause, the plaintiff states as follows, to-wit:
(1) That only the law of the State of Arkansas should be applied in this case.
(2) That the law of Contributory Negligence, specifically Ark. Stat. Ann. §27-1730.1 and § 27-1730.2, is procedural and therefore the law of the forum should be applied.
(3) That all of the parties to this lawsuit are residents of the State of Arkansas and all of the contacts of facts and issues are with the State of Arkansas. ’'
When this matter came on for trial the testimony was taken and the jury was instructed with reference to the law of contributory negligence without objection by appellant and without appellant ever having sought a ruling on its “reply” set out above.
By this appeal appellant asks us to review the lex loci delicti rule applied for many years in transitory tort actions. It argues that the law of the place which had the most significant contacts with the matter in dispute should be applied. See Leflar, Choice-Influencing Con sideration in Conflicts law, 41 N.Y.U.L. Rev. 267 (1966). However, we do not reacli appellant’s arguments because under our procedure, Ark. Stat. Ann. § 27-1762 and § 27-2154 (Repl. 1962), we will not review an alleged erroneous ruling or order unless a party makes known to the trial court the action which he desires the court to take or his objections to the action of the court and his grounds therefor. Here the record fails to show that appellant requested any such ruling or made any objections to the instructions submitting the issue of contributory negligence. For this reason we affirm the action of the trial court.
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John I. Purtle, Justice.
This case involves a foreclosure action by the creditor upon a residential loan which was in default. The Turners’, obligors, defense was usury and failure to timely make material disclosures as required by the Truth-in-Lending Act and by Regulation Z. The trial court found the creditor did not make a usurious charge and that there was no failure to make a material disclosure. Judgment for the creditor was granted upon the complaint and the property was ordered sold at public auction. The proceeds were applied to the loan and other judgments which were included in the decree. Obligors bring this appeal.
We are called upon to determine whether the chancellor erred in holding that the finance charges made by the creditor did not exceed the Arkansas statutory interest limit of 10% and whether the failure to include on the disclosure statement the total finance charges and the total of all payments to be made under the loan violated the Truth-in-Lending Act. We conclude the contract was not usurious but there was a failure to make material disclosures as required by the Act.
The facts are not really in dispute. September 9, 1975, Phillip M. Turner and wife, Mary AnnC Turner, appellants, obtained a loan from the West Memphis Federal Savings & Loan Association, appellee, for the purpose of financing a dwelling which they owned and occupied. The loan was accomplished by execution of a note for $38,500 bearing interest at9% and a mortgage which included waiver of dower by the wife. The disclosure statement submitted by appellee failed to disclose the total amount of finance charges or the total of all payments to be made on the loan. Appellants signed and returned the disclosure statement which revealed the creditor had made a 1 % origination fee charge of $385 as well as other charges to appellants.
The loan was completed September 9, 1975, and the first payment, in the amount of $323.10, was due on October 1, 1975, although it was not made until October 10, 1975. There were to be 300 payments in the same amount and each was due on the first of each succeeding month. Most of the payments were late with the last payment, due October 1, 1977, being made on December 9, 1977. Appellees commenced foreclosure action on May 10, 1978, at a time when the payments were considerably in default. Appellants first filed an answer that amounted to a general denial. The answer was amended and a counterclaim filed on July 6, 1978. The answer and counterclaim pleaded usury as a defense and sought customary relief in usury cases. The answer was supplemented on July 14, 1978, by appellants seeking to rescind the contract on the grounds of failure of appellees to make a material disclosure as required by 15 USC 1635.
The court found against the appellants on both counts and entered a decree on October 16, 1978, ordering foreclosure on the loan. The property was subsequently sold at public auction and the proceeds applied to appellants’ indebtedness. Several other judgments against the appellants were granted in the decree but we do not deem it necessary to deal with them in this opinion. The proceeds of the sale were insufficient to pay all judgments granted against appellants.
We first consider the defense of usury. Appellants rely upon Ryder Truck Rental v. Kramer, 263 Ark. 169, 563 S.W. 2d 451 (1978), in support of the usury allegation. Ryder was an appeal from a summary judgment declaring a loan to be usurious. An admission in Ryder conclusively proved that during a period of 32 months the interest rate charged and collected exceeded 10% in each month. We have no such admission in the present case. In fact, the figures from the payment record in the present case conclusively show the interest charged and collected amounted to less than 10%. Therefore, Ryder is not applicable here.
The origination fee of 1%, or $385, was withheld from the obligors. Therefore the $38,500 loan was reduced to $38,-115. We conclude that this $385 was a part of the finance charge. The contract had been in force for about 32 months when suit was filed. Appellants had paid $7,674.10 in interest plus the $385 origination fee for a total payment of $8,059.10. During this same period of time appellees could have collected $8,422.56, including the $385, without exceeding the 10% statutory limit. By adding the $385 origination fee to the interest the rate actually charged was 9.0404%. Therefore, the contract was not usurious.
We next consider the truth in lending disclosure statement. 15 USC 1635 reads:
(a) Except as otherwise provided in this section, in the case of any consumer credit transaction in which a security interest is retained or acquired in any real property which is used or is expected to be used as the residence of the person to whom credit is extended, the obligor shall have the right to rescind the transaction until midnight of the third business day following the consummation of the transaction or the delivery of the disclosures required under this section and all other material disclosures required under this part, whichever is later, by notifying the creditor, in accordance with regulations of the Board, of his intention to do so. The creditor shall clearly and conspicuously disclose, in accordance with regulations of the Board, to any obligor in a transaction subject to this section the rights of the obligor under this section. The creditor shall also provide, in accordance with regulations of the Board, an adequate opportunity to the obligor to exercise his right to rescind any transaction subject to this section.
(b) When an obligor exercises his right to rescind under subsection (a) of this section, he is not liable for any finance or other charge, and any security interest given by the obligor becomes void upon such a rescission. Within ten days after receipt of a notice of rescission, the creditor shall return to the obligor any money or property given as earnest money, down-payment, or otherwise, and shall take any action necessary or appropriate to reflect the termination of any security interest created under the transaction. If the creditor has delivered any property to the obligor, the obligor may retain possession of it. Upon the performance of the creditor’s obligations under this section, the obligor shall tender the property to the creditor, except that if return of the property in kind would be impracticable or inequitable, the obligor shall tender its reasonable value. Tender shall be made at the location of the property or at the residence of the obligor, at the option of the obligor. If the creditor does not take possession of the property within ten days after tender by the obligor, ownership of the property vests in the obligor without obligation on his part to pay for it.
(c) Notwithstanding any rule of evidence, written acknowledgment of receipt of any disclosures required under this subchapter by a person to whom a statement is required to be given pursuant to this section does no more than create a rebuttable presumption of delivery thereof.
(d) The Board may, if it finds that such action is necessary in order to permit homeowners to meet bona fide personal financial emergencies, prescribe regulations authorizing the modification or waiver of any rights created under this section to the extent and under the circumstances set forth in those regulations.
(e) This section does not apply to the creation or retention of a first lien against a dwelling to finance the acquisition of that dwelling.
If the loan had been to finance the acquisition of a dwelling the Act would have no application. The disclosure form used by appellants indicates this loan was on a dwelling then owned and occupied by appellants. Therefore, we hold the Act applicable. The disclosure form used fails to state either the total finance charges or the aggregate or all payments to be made pursuant to the contract. It is true these figures could have been obtained by using the figures stated on the form. We do not find this question to have been decided by this Court nor any United States District Court in Arkansas. Pub. L. 90-321, Title 1, § 125, (15 USC 1635) gives the obligor up until midnight of the third business day following consummation of the transaction or the delivery of the disclosures required under this section and all other material disclosures required under this part, whichever is later, to notify the creditor of intent to rescind. Such intent was given to the creditor on July 14, 1978, almost three years after the transaction was consummated. The matter of whether a notice to rescind is timely was treated in Ljepava v. M.L.S.C. Properties, Inc., 511 F. 2d 935 (9th Cir.1975). In that case the court pointed out that the inadequacies found in the disclosure statement were never corrected; therefore, thes Ljepavas had the right to rescind at any time prior to trial. See also Sosa v. Fite, 498 F. 2d 114 (5th Cir.1974). There was a timely rescission in French v. Wilson, 446 F. Supp. 216 (D.C.R.I. 1978), when the loan had been made in October of 1973 and the rescission was made in May of 1975. A loan had been outstanding from August of 1973 until August of 1974 when the obligors instituted a rescission action. This, too, was held to be a timely rescission. Therefore, if the insufficiencies in the disclosure statement were material the notice in this case was timely.
The only case we have located dealing directly with the term “material disclosure” is Ivy v. United States of America Department of Housing and Urban Development, 428 F. Supp. 1337 (D.C. Ga. 1977). Although the court in Ivy found there was not a material nondisclosure, the meaning of “material” was discussed at length. The court stated:
. . . The Court is persuaded that the different language used in the statute was meant to limit liability under the rescission section to only those nondisclosures which a reasonable consumer would view as significantly altering the “total mix” of information made available. That is, the omission need not be so important that a reasonable consumer would probably change creditors. However, the information must be of some significance to a reasonable consumer and under the circumstances in his “comparison shopping” for credit.
In the Ivy case the defendants conceded they failed to disclose accurately the total of the payments. However, the total failure to disclose amounted to only $11.30 on a total repayment of $12,066.50. The court further stated that it was convinced the mis-disclosure would have absolutely no effect on any reasonable consumer shopping for credit. The “material” disclosure in § 125 (15 USC 1635) is significant because the civil liability section (15 USC 1640) imposes a liability for failure to “disclose.” The civil failure, as provided in 1640, is not argued in the case before us; therefore, we are considering the case under 15 USC 1635.
A number of cases have dealt with the mechanics of rescission as required by § 125 of the Act (15 USC 1635). It was stated in Ljepava, supra, that:
However, we have recently indicated that the statute should not be read as requiring the lender to perform first. In Palmer v. Wilson, supra, (502 F. 2d 860), the majority held that a trial judge had the discretion to condition rescission on tender by the borrower of the property he had received from the lender.
The court of appeals reversed Ljepava, supra, because the trial court apparently felt he had no discretion and that tender was a mandatory requirement for rescission. The court of appeals further held the court should be concerned that the creditor ultimately received the money advanced under the loan agreement. It was held in the case of Eby v. Reb Realty, Inc., 495 F. 2d 646 (9th Cir.1974), that in some cases both rescission and civil penalties were authorized. Usually the courts have limited the obligors to recovery either under 15 USC 1635 or 15 USC 1640. Under the latter section, obligors are entitled to receive a penalty of up to $1,000 plus a reasonable attorney’s fee. § 1640 (a) reads as follows:
(a) Except as otherwise provided in this section, any creditor who fails in connection with any consumer credit transaction to disclose to any person any information required under this part to be disclosed to that person is liable to that person in an amount equal to the sum of
(1) twice the amount of the finance charge in connection with the transaction, except that the liability under this paragraph shall not be less than $100 nor greater than $1,000; and
(2) in the case of any successful action to enforce the foregoing liability, the costs of the action together with a reasonable attorney’s fee as determined by the court.
A review of the federal cases decided under the Truth-in-Lending Act leads us to conclude an action to rescind is an equitable proceeding and the Court should look not only at the violations by the creditor but should consider the course of action taken by the debtor. From reading a history of the legislation it is apparent the Act was directed at loan sharks and fly-by-night operators. By exclusion from the Act of transactions relating to the acquisition of new homes and from the debate by member of Congress there is a clear indication that a first lien on a home is treated differently from a loan for personal property or home improvement. It was not the intent of Congress to allow all loans on a dwelling to be excluded from the provisions of the law.
We had occasion to consider the failure to disclose, as required by the Truth-in-Lending Act, in the case of Nietert & Goodwin v. Citizens Bank & Trust Co., 263 Ark. 251, 565 S.W. 2d 4 (1978). In Neitert the loan had been in existence for about two years when foreclosure was commenced and the obligors then decided to rescind for failure to disclose, as required by 15 USC 1635. We found there was a failure to disclose but denied relief to the obligors because they failed to tender as required by the Act. There was another factor involved in Nietert which is not present here. The creditor there agreed to give the obligor time to try to arrange for financing the required tender from some other source. We held the borrowers were required to pay what they had received from the lender before the penalties applied. Thus the conduct of the parties is a relevant factor to be considered in each case.
We are not unmindful of the fact that the creditor is required to return the property and remove any liens when rescission is properly requested. Neither are we unaware of the fact that the obligor has an equally responsible duty to return the funds borrowed, less the overcharges, to the lender. In the present case the creditor was not in possession of anything which could be returned to the obligors except the note and the mortgage. Apparently these items had already been placed in the court files relating to the foreclosure action. Appellants had, subsequent to the loan in question, imposed an additional mortgage upon their dwelling. It is clear from the circumstances in this case that appellants could not tender to appellee that which was due. We have a failure of both parties to meet the conditions required by the law. Each was entitled to something which was unobtainable at the time. Appellants never tendered to appellee the money to which they were entitled; therefore, they have not complied with the law. It would have been a useless gesture for appellees to have demanded their money from appellants.
The mechanics of rescission are not necessarily bound to proceed in the exact manner in which they are set out in the Act. Both parties have obligations and it was impossible to set them out simultaneously. It is logical to assume the obligor should be bound to return any items received through the transaction although notice of rescission must first be given. Had appellants obtained an automobile with the proceeds of the loan and it had been destroyed by fire or otherwise, it would have been impossible to return it. Under those circumstances they would be obligated to return the money borrowed, less items properly deductible. Under the present circumstances it would have been inequitable to require the lender to return the loan proceeds without any expectation of receiving anything of value in return. It is obvious the appellants could not tender their dwelling; therefore, they were obligated to tender the money received by them plus that which had been paid out on their behalf to extinguish prior loans.
The failure by the creditor to make a material disclosure authorized appellants to rescind the transaction. From the wording of the Act and the history of its enactment, we are of the opinion that the rescission procedure contemplated the transaction being rescinded within the three day period. However, the language used in the Act clearly extends the right of rescission until such time as the material disclosure is in fact made. From the above, and the many cases decided under the Act, we conclude that rescission pursuant to this law is an equitable proceeding. It was not contemplated that the borrower be allowed to reap the benefits of the transaction for a period of years and then call upon the lender to make an inequitable restitution. There is a fundamental difference in the benefits which would have been received by the borrowers had the transaction been rescinded within the three day period and those they claim to be entitled to after a period of months or years. We believe the relief granted should approximate that which would have been due during the three day period even though rescission occurs much later.
We feel under the particular circumstances in this case that appellants should not be liable to the appellee for the attorney’s fees imposed upon them in the decree nor should they be liable for court costs but should receive the origination fee in the sum of $385. Neither do we feel appellants should be entitled to an attorney’s fee in view of the conduct of the parties concerning the rescission. Therefore, the case is remanded to the trial court with directions to enter a decree consistent with this opinion.
Reversed and remanded.
Fogleman, J., not participating.
Byrd, J., dissents.
The disclosure statement showed the annual percentage rate as 9.25%. See Exhibit “B” attached as an appendix to dissenting opinion. | [
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Darrell Hickman, Justice.
Alfred D. Harkness was convicted in the Crittenden County Circuit Court of burglary and attempted rape and sentenced to imprisonment for a total of thirty years.
He alleges four errors on appeal. The first regards an erroneous instruction and has merit requiring us to reverse his conviction. The others have none and will be mentioned only because they could arise on retrial.
The court allowed an in-court identification of Harkness by the alleged victim. The appellant argues that the line-up the victim saw at the police station about five days after the offense was impermissibly suggestive and tainted the later in-court identification, making it inadmissible. The victim also made a voice identification of Harkness at the same time. We have examined the record and the trial court’s ruling permitting the in-court identification and hold that it passes the test laid down in Warren v. State, 261 Ark. 173, 547 S.W. 2d 392 (1977).
A police officer was allowed to read to the jury a statement that the vi9tim said Harkness made to her when he attempted to rape her. It is argued this was hearsay and was erroneously admitted as evidence to the jury. The statement read to the jury was:
Get up. Come with me. Get on the bed. Get your clothes off and get on the bed. I can use this gun and I will hurt you.
The statement was not hearsay because it was not admitted into evidence to prove the truth of the words stated but rather was relevant to the line-up and voice identification of Harkness made by the victim. The line-up and voice identification had been attacked but this was only part of the evidence offered by the State to prove the identification was fairly made and reliable.
A cigarette lighter found by an investigating officer in the victim’s home was admitted into evidence as the defendant’s. So was a statement made by Harkness when he was shown the lighter at police headquarters. According to a police officer, Harkness said, “That is my lighter.....” It is argued that a proper chain of custody was not established for the introduction of the cigarette lighter. Harkness claimed that he left the lighter in the glove compartment of his vehicle.
The purpose of showing a chain of custody is to prove authenticity. If there is a reasonable probability the evidence is genuine, the trial court’s ruling will be upheld. Baughman v. State, 265 Ark. 869, 582 S.W. 2d 4 (1979).
We find no reason to disturb the trial court’s ruling regarding the cigarette lighter.
The error made which requires us to reverse this case was an erroneous instruction stating, in effect, that alibi is an affirmative defense which a defendant must prove by a preponderance of the evidence. That is wrong for two reasons. First, alibi is not an affirmative defense. Second, the State' must always prove its case beyond a reasonable doubt. That burden is not shifted to the defendant because alibi is raised as a defense. This case was tried before we adopted the Arkansas Criminal Model Jury Instructions, but they correctly state the relevant rule. AMCI 4008 reads:
ALIBI — COMMENT
While alibi instructions have often been used by trial courts in Arkansas, alibi is neither a defense nor an affirmative defense under the Arkansas Criminal Code, but rather a position the defendant may assert to create a reasonable doubt of his guilt. Therefore, no jury instruction should be given. See 21 Am. Jur. 2d, Criminal Law, § 136.
We join those authorities which have rejected the instruction given in this case. See, e.g., Stump v. Bennett, 398 F. 2d 111 (8th Cir. 1968); Lafave & Scott, Criminal Law § 8 (1972).
The State argues, however, there was no timely objec tion to this instruction. The record, as originally submitted, showed that the defendant’s counsel offered objections to the alibi instruction after the jury retired. That would be too late according to our decisions. Golden v. State, 265 Ark. 99, 576 S.W. 2d 955 (1979).
When the State raised this argument, Harkness asked that we resubmit the case to the trial court to settle the record. Counsel for Harkness argued a timely objection had been made before the jury was given the instructions and that the court noted those objections but asked that counsel make his record after the jury retired. We resubmitted the case to the trial court for a hearing at which the prosecuting attorney, one of the defense counsel for Harkness and the trial judge were sworn and gave their versions of what happened. The prosecuting attorney could not swear that the objection was not properly made before the instruction was given but he was inclined to think it was not. The defense attorney was certain he had made an objection but that the court asked him to make his record after the jury deliberated. The trial judge made no finding, as he could have done, but said:
... I have no memory, really, I was so bewildered and overwhelmed at this criminal term of court, my memory on it is very foggy and I really have no memory about this instruction. I have no memory of — I will say in all candor that I have found it to be a time saving device, when I pretty well have my mind made up on what instructions I am going to give, instead of consuming time while the jury is waiting, I have asked attorneys on frequent occasions to wait and make their objections while the jury is deliberating, simply as a time saving device, and I still feel that that is a time saving device and would not want to discourage that practice and discourage attorneys from agreeing to that by penalizing one who in good faith cooperates and then forgets to make an objection, but I just cannot say with any certainty whatsoever whether that happened in this Harkness case .... [Emphasis added.]
We have to give the defendant the benefit of the doubt in view of the candid remarks of the trial judge, a man of undoubted integrity. Therefore, the case is reversed and remanded for a new trial.
Reversed and remanded.
Harris, C.J., not participating. | [
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John A. Fogleman, Justice.
Appellant Willard W. Jones is the father of Marcella A. Jones, a seven-year-old female, born to his former wife, Venita (now Carpenter). He sought to obtain custody of this daughter by petition for modification of an order of March 23, 1977, awarding custody of the child to her maternal grandparents, Clarence Strauser and Mary Strauser. He alleged that there was a change in circumstances since the original order was entered in that Clarence Strauser had died. Appellant amended his petition on September 29, 1978, making the child’s mother a party and alleging that as between the two natural parents, he was the proper person to have custody of the minor daughter. On December 18, 1978, after hearing the evidence, the chancery court denied the modification. On January 18, 1979, a decree was entered continuing Mrs. Strauser’s custody.
On appeal, the father asserts that the chancellor committed reversible error. Fundamentally, his argument is that the best interest of the child would be served by awarding him custody. In advancing that argument, he emphasizes the preference of parents over strangers and other relatives in the award of custody of a child, saying that the basis of this preference is the welfare of the child. Since we are unable to say that the chancellor’s ultimate finding that it is in the child’s best interest that the custody remain unchanged is clearly against the preponderance of the evidence or that the chancellor misapplied the law to the facts, we affirm.
The welfare of the child is the polestar in every child custody case. Provin v. Provin, 264 Ark. 551, 572 S.W.2d 853. Ordinarily it is true that, as between a parent and a grandparent, the law awards custody to the parent unless he is incompetent or unfit to have custody of the child. Feight v. Feight, 253 Ark. 950, 490 S.W.2d 140. In this case, the award of the custody of the child to her maternal grandparents was based on an agreement to which appellant was a party. While his parental preference was not thereby forfeited forever, its effect was so diminished that he bore the burden of showing a change in circumstances subsequent to that award which required or justified a change in the custody when considered from the standpoint of the welfare of the child. Parks v. Crowley, 221 Ark. 340, 253 S.W. 2d 561. See also, Johnson v. Arledge, 258 Ark. 608, 527 S.W. 2d 917.
The only really significant change in circumstances shown was the death of the paternal grandfather. The chancellor weighed the evidence very carefully in reaching his conclusion. The following significant findings of fact were incorporated in the court’s decree:
That the defendant, Mary Strauser, along with her late husband, Clarence Strauser, has had the custody of the said Marcella A. Jones from the time she was born until the present and that the said Mary Strauser is now providing adequate care and custody and control of the said Marcella A. Jones.
That circumstances have changed since the entry of the last Order establishing custody in the said Mary Strauser and Clarence Strauser, deceased, on March 23, 1977.
The court feels that the best interest of the child is overriding in this case and the child has been with the grandparent, Mary Strauser, since birth and that the grandmother, Mary Strauser, is doing reasonably well with the child.
The court is not impressed with eight (8) people living in Mary Strauser’s home and the fact that they come and go with great frequency.
The Court however finds that both natural parents abandoned the child for the first five (5) years of her life and that only since 1976 has the natural parent, Willard W. Jones, taken any interest in the child, however since that time he has become a fit and proper parent.
it is evident that Mary Strauser, defendant herein, has some physical problems that constitute a health hazard to her, i.e., hypertension and in the event that Mary Strauser should become disabled, the child should be placed with the father.
That it is in the best interest of the said Marcella A. Jones that her custody not be changed at this time. . .
Appellant says that these findings of fact by the chancellor are not particularly in dispute, except as to the chancellor’s interpretation of them. He does feel that some of the oral findings of the chancellor at the conclusion of the trial, however, were not warranted. He first complains that in finding that he did not support the child from 1972 to 1976, the chancellor overlooked testimony that he was not allowed to visit with the child from the first Christmas after she was born until 1976, and that the child’s mother told him she did not want support and did not want him coming back to see the child. We point out that this testimony related to matters which would have been more appropriately addressed to the order awarding custody to the grandparents. At the same time, it appears to us that appellant could well have taken steps to obtain visitation rights if he had been really interested and had really wanted to contribute to the child’s support. It does not appear to us that the ultimate finding that only since 1976 had appellant taken interest in the child was clearly against the preponderance of the evidence.
Appellant also complains of the statements by the court that there would naturally be some difficulties between Marcella and a six-year-old daughter of appellant, on the basis that there is no supporting evidence and that appellant’s present wife testified that Marcella’s relationship with her two children was good. On the other hand, Mrs. Jones , testified that when she had recently visited in the Strauser home, Marcella ran into the bedroom and refused to talk to her, and that in spite of trying to get Marcella to go with her to be in a family portrait, Marcella refused and told Mrs. Jones’ daughter that it made no difference what her father or anyone else said, she didn’t have to go with Mrs. Jones. The court, however, did not seem to accord major significance to this finding in its decree. In his findings, the chancellor said that this possible friction was the only thing that might be considered derogatory to appellant’s home at the time of the hearing, and stated his conclusion thusly: “And, of course, two girls that close would naturally have some difficulties.” In reaching this conclusion, the chancellor relied on his own observations and experience of the affairs of life and gave effect to an inference from the facts on the basis of such observation and experience. It is proper for a jury to do this. Kroger Grocery & Baking Co. v. Woods, 205 Ark. 131, 167 S.W. 2d 869. In the cited case, we quoted from a textbook statement pointing out- that jurors are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life anymore than the court is expected to ignore its own “knowledge and experience with ordinary affairs.” In the current edition of that text, we find this statement repeated. See 29 Am.Jur. 2d 59, Evidence, §21. It has been specifically held in at least one other jurisdiction that the principles with reference to a jury’s consideration of its own general knowledge and experience in the affairs of life are no less applicable to a judge, as trier of facts, than to a jury. Hinterman v. Stine, 55 Mich. App. 282, 222 N.W.2d 213 (1974). See also, Drumwright v. Walker, 167 Va. 307, 189 S.E. 310 (1937).
Observance of this principle is certainly proper. It would be extremely difficult, if not impossible for a fact finder, even a judge, to avoid drawing inferences based on his knowledge and experience in everyday affairs of life. A chancellor dealing in matters pertaining to child custody would find it difficult indeed to disregard any knowledge he had gained through his experience and ofosereatiom in those cases. It seems inevitable that he would apply this knowledge consciously or subconsciously. As a result, we cannot say that the chancellor’s statement was an unwarranted' inference.
Virtually the same thing may be said with reference to the chancellor’s statement that to tear the child from the only home she had known would be a difficult and traumatic psychological event to the child. In the absence of evidence to the contrary, it might be said that the chancellor merely stated a matter of common knowledge. Appellant suggests that the child might better adjust at this time than later. This fact is less certain.
It is true that the chancellor considered the facts that the grandmother is 65 years of age and has a hypertension problem, and that eight people live in her home and that children and grandchildren come and go with frequency in weighing all the factors, but he did not consider them to override other factors in determining the best interests of the child. We are in no position to ©lisagree. There is no case in which the ability and opportunity of the chancellor to observe the parties carries greater weight. Wilson v. Wilson, 228 Ark. 789, 310 S.W.2d 500; Lumpkin v. Gregory, 262 Ark. 561, 559 S.W.2d 151.
Not only is it significant that the chancellor observed Mrs. Strauser, but it is also significant that although he specifically held that custody should not be changed at this time, he stated that in the event that Mary Strauser should become disabled, the child should be placed with her father. No one contests the holding that, as between appellant and the child’s mother, appellant would be the proper person to have custody of Marcella. We consider the portion of the court’s decree recognizing that deterioration of Mrs. Strauser’s health may dictate a change in the custody of the child as a retention by the court of control of the case for that purpose. It is appropriate that such control be retained in a case such as this. See Phifer v. Phifer, 198 Ark. 567, 129 S.W.2d 939.
The decree is affirmed.
We agree. Harms, C.J., and George Rose Smith and Hickman, JJ. | [
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John I. Purtle, Justice.
This is a mortgage foreclosure on a grade A dairy farm and the appurtenances and equipment. The Federal Land Bank and the owners negotiated a loan and first mortgage on the property. Subsequently, the owners executed another mortgage as well as a financing statement and security agreement to McIlroy Bank & Trust. Both the mortgages and the financing statement were duly recorded. McIlroy claimed a superior lien under the Uniform Commercial Code to the equipment or fixtures mentioned in its agreement. The court held in favor of the Federal Land Bank by declaring all of the appurtenances and fixtures mentioned in both instruments to be a part of the realty. McIlroy appeals.
We are called upon to determine whether certain items of dairy equipment were fixtures and subject to a real estate mortgage or whether they were personalty and subject to the Uniform Commercial Code. We are of the opinion that under the circumstances present in this case the items in dispute became a part of the realty.
On February 4, 1976, the Suttons executed and deliver ed to the Federal Land Bank of St. Louis a real estate mortgage as security for payment of a promissory note. This mortgage was filed on February 10, 1976. It was reexecuted and refiled on September 28, 1976. December 8, 1976, the Suttons gave a second mortgage to McIlroy Bank & Trust Company to secure an indebtedness of $100,000. This mortgage was recorded on December 17, 1976. Additionally, McIlroy secured from the Suttons a financing statement and security agreement which extended to various items of dairy equipment mentioned in the instrument. The financing statement and security agreement were filed on October 27, 1977.
The Suttons defaulted on both transactions and Mcll-roy took possession of the milking equipment and began to negotiate a sale for the balance of the dairy equipment. The Federal Land Bank obtained an injunction until the matter could be decided by the court.
The mortgage from the Suttons to the Federal Land Bank contained the following language:
. . . together with all rights, interest, privileges, easements and appurtenances thereunto appertaining, and the rents, issues and profits thereof, and together with all improvements and fixtures now or hereafter erected thereon, including all heating, air conditioning, lighting, plumbing and water supply apparatus, storm windows and doors, window screens, screen doors, window shades, awnings, locks, fences, including gates, trees, shrubs and such other fixtures and improvements used or useful in the operation of the premises ....
The mortgage to McIlroy described the same real estate and listed items of equipment which were being used at the dairy barn. The evidence shows that most, if not all, of the equipment was attached to other equipment through refrigeration lines or water or milk lines. Most of it was inside the barn but portions were affixed to concrete slabs outside the barn with connecting pipes to other equipment inside the barn. Appellant sold part of the equipment to a man who described the manner in which he took possession of it. For the most part, he used a hammer, wrench, or screwdriver, to detach the various items for removal purposes. After removal several holes were left in the side of the barn where equipment had been extended through the walls.
During the trial of the case the purchaser of the equipment was asked whether or not “customarily dairymen in the area remove equipment from their barn.” Although the witness answered in the affirmative, the court sustained the objection by the appellee. Appellant contends it was proper to ask such question, especially in view of the fact that this witness had been examined on methods of installing equipment in a dairy barn. Appellant argued this answer would have a bearing on the intent of the Suttons in affixing the equipment in place. The court, in holding in favor of the Federal Land Bank, relied heavily upon Alwes v. Richheimer, 185 Ark. 535, 47 S.W. 2d 1084 (1932).
We agree that the court properly relied upon Alwes, supra. As was stated in Choate v. Kimball, 56 Ark. 55, 19 S.W. 108 (1892), the test for determining whether items are fixtures is: (1) whether the items are annexed to the realty; (2) whether the items are appropriate and adapted to the use or purpose of that part of the realty to which the items are connected; and (3) whether the party making the annexation intended to make it permanent. Over the years our rule has not substantially changed. It is undisputed that practically all of the items were annexed to the realty although it may have been very minimal in some instances. Neither is it disputed that all of the items were appropriate for and used in the operation of a grade A dairy farm. The third test as to whether the parties intended to make the equipment permanent is not as easily determined. The Suttons did not testify. A representative of the Federal Land Bank, one of the parties to the original transaction, testified that the items were in place at the time of the mortgage and he made a note that the property was being operated as a grade A dairy. When you consider the language in the appellee’s mortgage it is quite clear that it is at least as broad as the language in Alwes, supra. Therefore, this equipment could easily become fixtures. There is no evidence in the record that these items were attached to the realty on a temporary basis or that they were held for resale or that the Suttons intended to remove the equipment if they should move or cease operation. Under these facts here in question we feel the third test has been met and the equipment became permanent fixtures. In fact, this equipment was suitable for no other purpose than to use in the operation of a dairy farm.
Although the objection was sustained as it related to the question of whether or not owners customarily removed this type of equipment from the premises, the answer was, nevertheless, included in the record. As was stated in Triumph Electric Co. v. Patterson, 211 F. 244 (C.C.A. 8th Cir. 1914):
The general rule is that the lien of a mortgage of realty embraces whatever is annexed to the land in such manner as to become, in contemplation of law, part and parcel thereof. This includes not alone buildings and structure, but likewise machinery which forms an integral part of the same, and is designed, adapted and intended for permanent use therein, with a view to the purpose for which they are employed. This is true in the absence of special local custom to the contrary, although such machinery may be susceptible of removal and installation elsewhere, and although in the structure other similar machinery might be substituted for it.
Whether or not the owner of the equipment, after attaching it to realty, subsequently decided to remove it is not the controlling factor. One might remove a porch from his residence although it was built for the purpose of serving the residence. Many houses are placed upon land by the use of blocks or pillars and it is not a great problem to remove the entire house with modern equipment. Nevertheless, there can be no question but that the house or porch was attached and became part of the realty.
For the reasons above stated, we feel the judgment of the trial court should be affirmed.
Affirmed.
We agree. Harris, C.J., and Byrd and Holt, JJ. | [
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Conley Byrd, Justice.
The Arkansas State Highway Commission appeals front a Chancery Court order holding that appellee T. Q. French is the owner of a strip of land 10 feet in width, adjacent to the east side of Highway 65 in the town of Bee Branch, Arkansas. The Highway Department claims the land by virtue of a 1928 county court condemnation order fixing the right of way 40 feet in width either side of a center line. For reversal, the Highway Department relies upon the following points:
1. The trial court erred in not dismissing French’s injunction action because the undisputed testi mony showed that , he had knowledge of the Highway Department’s claim for more than one year (Ark. Stat. Ann. § 76-917) ;
2. The trial court was in error in ruling that French had no notice of the taking by the county court order;
3. The trial court erred in ruling that French was not estopped by his' acquiescence and actions indicating acquiescence in the state’s claim to the strip of ground upon which the state acted to its detriment in letting a contract for construction.
The record shows that subsequent to the county court condemnation order the Highway Department graded and graveled Highway 65 through Bee Branch, pursuant to job no. 843. Sheets no. 8 and 9 of the plans for job no. 843 show a right of way 40 feet in width either side of a center line up to station 608 and 30 feet either side of a center line from station 608 to approximately station 623 plus 88.7. Quitman Road is shown as being at station 610 and the post office, at that time, as being between stations 615 and 620. French’s store is between station 608 and the post office. The paving of Highway 65 in Bee Branch was done in 1934, job no. 8178. Sheet no. 23 of job no. 8178 shows right of way 40 feet in width either side of a center line up to station 608! The right of way from station 608, to the post office, the latter being at station 619+26.8, is shown as being 30 feet either side of a center line except for the portion immediately in front of the post office which is shown as being 26 feet west of the center line. The latter sheet also shows that the pumps on the G. W. French filling station are located on the highway right of way as drawn by the plan.
Thomas Q. French testified that he was 64 years of age and that he was -working for his father when High way 65 was put through in 1928 — that his father had been in business there ever since 1900 and that the gasoline pumps were put in before the highway was graveled. According to Mr. French there was an ¡existing road through the town of Bee Branch at the time the highway was graveled in ’28. Following the paving of the road in 1933 or ’34, he built a concrete apron in 1938 out to the roadway. About a year before the filing of the suit the highway department notified him that his pumps were on the right of way and requested him to move the same. In answer to questions by the court he testified as follows:
“Q. Now you have stated that Mr. Elledge’s letter to you dated June 19, 1967 represented substantially what you and he had discussed, you did then at one time agree with him that you would move these two independent pumps farther east?
“A. 1 told him I would, but I never did say when, I didn’t tell him exactly when.
££Q. Bid that have anything to do with one of the inducements for the Highway Department to make a decision to keep the highway going through town rather than having it bypass town?
££A. You mean—
££Q. Was that an inducement to the Highway Department to help them decide to go through town?
££A. Not at that time, they had already decided.
“Q. Well, what did you imply by your agreement with the Highway Department that you would move these two pumps east? What were your intentions about it?
“A. "Well, I was trying to liold them there and see what I could do. I didn’t know whether they owned the right of way they were talking about and I finally cheeked that they didn’t.”
Mr. French said he did not know about the county court condemnation order until two months before the trial nor was he aware of any entry ever having been made on his property.
Witnesses on behalf of the Highway Department testified that Mr. French had promised to move the pumps and that in reliance thereon they let a contract to McGcorge Construction Company in which they obligated federal funds, after certifying that the right of way had been cleared of all obstructions. The State’s witnesses did not contend that notices had been served in connection with the entry of the county court condemnation order or that claims for compensation had been filed by Mr. French or his father, a predecessor in title. These witnesses also testified that the highway was originally programed to bypass Bee Branch but, at the request of the citizenry through appellee’s present counsel, then an employee of the Highway Department, a meeting was held at Bee Branch. At that time the I Eighway Director explained that the only way the highway could be changed to come through Bee Branch was for the people to pay for the removal of all utilities, building's and all right of way. Following that meeting, however, the ITighway Department worked out an arrangement whereby the highway would go through Bee Branch and all the additional right of way required for the construction would be taken from the west side of the highway. Pursuant to this plan, an additional 20 feet was acquired on the west side of the highway and the Highway Department admittedly paid for acquisition of this property and removal of the obstructions therefrom.
'Subsequently another meeting was held between Mr. French and Mr. Gray, an employee of the Highway Department, at the home of Iluten McKim. Air. A'fcKim says that the discussions centered around a service station on the west side of the road belonging to a Air. Ethridge. AVith reference to the meeting at Air. ATcKim’s home, Air. Gray testified as follows:
“AA'ell, like 1 say this meeting was at his house and then in relation to this other service station as Air. McKim related, but vTe had worked out a method that was acceptable to the Bureau of Public Roads and our planning division, wherein if we could bring the alignment a little bit further to the west and take the right of way from the west and maintain the right of way that we had on the east that we would construct it through the town with the curb and gutter section, so that is what T went up to discuss with them, and the people involved on the. west side we. contacted as many of them as we could that day and told them what our proposition would be and I talked to Air. French and told him how the situation would affect him and I advised Air. French that his pumps were encroaching and that they would have to be set off of the right of way. Air. French advised me that he understood that and that wasn’t any concern if we were going to get the Highway through Town because he was planning at that time to acquire additional property and he was concerned about the 92 that came in there because he had plans for some sort of business there.”
Mr. French acknowledges the meeting with Air. Gray at the McKim home and in answer to a question as to what they talked about, said:
“AA'ell, he was trying to get a right of way through Bee Branch, and he wanted to take ten feet on each side, he said, of the highway. AVell, he couldn’t rlo any good on the east side getting people to go along with him, so lie came up there aud said £T have de cided to take twenty feet on the west side of me and pay all of the property owners for their properties.’ ”
POINT 1. Appellant argues that French knew more than a year prior to the filing of the injunction suit that the Highway Department was claiming the right of way involved and that because of this knowledge French is barred by the one year statute of limitations set out in Ark. Stat. Ann. § 76-917 (Repl. 1957). We find this contention to be without merit. See Greene County v. Hayden, 175 Ark. 1067, 1 S.W. 2d 803 (1928), and Hot Spring County v. Fowler, 229 Ark. 1050, 320 S.W. 2d 269 (1959). As we read these decisions the one year statute of limitations does not begin to run against a property owner until he is served with notice by legal process or until an entry is made by the condemning agent.
POINT 2. In Arkansas State Highway Commission v. Anderson, 234 Ark. 774, 354 S.W. 2d 554 (1962), we pointed out that property could not be condemned without first giving the land owner notice so that he could have his day in court on the issue of compensation. We there held that the burden of proving that proper notice was given was upon the condemning agency.
Under the record here there was no evidence of any notice by legal process served upon Mr, French or his father. TTnder these circumstances the Highway Department had the burden of showing an entry upon the French property which would amount to notice. TTnder the proof here we believe that the Highway Department failed to sustain its burden of proof. The record shows that Bee Branch in 1928 was a town with stores on both sides of the street and with the street running from porch to porch. The further proof is that the pumps in issue here were in existence at the time the highway was constructed and that use of the pumps was not interfered until by the highway construction.
Furthermore the county court condemnation order is typical of the orders entered at that time. The right of way was described as extending from station to station and for a certain distance on either side of the center line, and is unintelligible to any one, except perhaps an engineer, -without the aid of the plans and specifications on file in the Highway Department. Had Mr. French seen plans prepared in connection with the jobs 843 or 8178, he would have found that the right of way in front of his business was only 30 feet in width on either side of the center line instead of the 40 feet now claimed by the State. Upon the whole record the evidence preponderates in favor of the Chancellor’s findings that Mr. French had no notice either hv legal process or through entry.
POINT 3. Under this point, the State argues that appellee along with the other citizeus of the town of Bee Branch made overtures to representatives of the Highway Department to secure the routing of the highway through the town instead of around the town as planned by the Highway Department. They contend that at these meetings Mr. French was present, was aware of the State’s claim of right to the 10 foot strip, acquiesced in the State’s claim and permitted the State to rely upon such acquiescence until the State acted to its detriment by issuing a contract for the highway construction through Bee Branch. In Watson v. Murray, 54 Ark. 499, 16 S.W. 293 (1891), he held that the burden is upon one who relies upon an estoppel to establish the facts relied upon as creating it.
Without deciding whether the facts upon which the State relies would create an estoppel, we point out that French denied that he knew the Highway Department was claiming the disputed strip. Under this state of the record we are unwilling to hold that the. Chancellor’s finding contrary to the State’s position is against the preponderance of the evidence.
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George Howard, Jr., Judge.
This is an appeal from a judgment rendered by the trial court, without the aid of a jury, denying both appellant and appellees damages in a breach of contract action involving a contract for sale of land.
While the trial court made no definite findings, the court held that “neither party met the burden of proof on the issue of damages”. However, appellant was permitted to recover the $10,000.00 earnest money that it deposited with the escrow agent.
The force of appellant’s argument for reversal is: the trial court committed error in holding that appellant did not meet the burden of proof on the issue of damages.
It is widely accepted that the findings of a trial judge sitting as ajury deserve the same weight and consideration as the findings of a jury when his findings are supported by substantial evidence. Substantial evidence means legal, credible and persuasive evidence sufficient to support the action of the court.
We now turn to the record before us in order to determine whether the evidence is sufficient to support the holding of the trial judge.
On November 24, 1972, appellant, as purchaser, and appellees, as sellers, executed an offer and acceptance to purchase 3800 acres of land in White County for $532,000.00 — a fixed rate of $ 140.00 per acre. Appellant paid $10,000.00 as earnest money, to Standard Abstract and Title Company, escrow agent, which was to be applied ultimately to the purchase price. Appellant agreed to pay $75,000.00 at the closing of the transaction and to assume a first mortgage held by Northwestern Mutual Life Insurance Company securing an indebtedness of $188,000.00, payable in annual install ments of $22,500.00, consisting of principal and interest. The offer and acceptance specified that appellant was to pay the next annual installment becoming due January 1, 1973. Appellant also agreed to assume a second mortgage in favor of Agristor securing a debt for $25,000.00. The balance of the purchase price, $244,000.00, was to be paid in ten annual installments with interest at the rate of 6% per annum.
On January 10, 1973, appellant’s attorney sent the following communication to appellees’ attorney:
Dear Mr. Peacock:
I received the abstracts today. We need your directions as to where and to whom General Mortgage should direct payment due pursuant to terms of the Earnest Money Contract.
General Mortgage is prepared to forward the ‘preclosing payment’, as provided in the contract upon receipt of your directions.
On January 16, 1973, appellees’ attorney submitted the following letter to appellant’s counsel:
Dear Mr. Knight:
Payment on the Mortgage of the Peacock Ranch should be made to Northwestern Mutual Life Insurance Company, Box 50521, Milwaukee, Wisconsin 53201. The loan number is F323007 and the principal due as of January 1, 1973, is $7,500.00 along with interest of $15,000.00 making a total of $22,500.00.
Please mail me a copy of a financial statement on your client, General Mortgage Corporation and a corporate resolution authorizing Paul Chambers to execute the referenced land purchase contract.
On January 31, 1973, appellant advised appellees that appellant was unwilling to accept title of the property as reflected by abstracts delivered to appellant on January 10th and, as a consequence, appellant would require title insurance coverage.
On March 1, 1973, a title insurance commitment was issued to appellant containing approximately eighteen exceptions which included, among other things, six unsatisfied mortgages in favor of White River Production Credit Association and a requirement that patents be obtained from the United States Government.
On April 4, 1973, appellees advised appellant, by letter, that the contract was terminated and, therefore, regarded the earnest money in escrow forfeited because appellant had failed to perform the conditions contained in the offer and acceptance agreement.
On April 5, 1973, appellant informed appellees, by letter, that appellant would not assume the mortgages in favor of White County Production Credit Association, as previously requested by appellees, since the offer and acceptance did not provide for the assumption of these mortgages; that appellant stood willing and ready to proceed with finalizing the sale at such time as appellees were prepared to deliver a valid title to the property and close the sale in accordance with the terms of the agreement. In addition, appellant’s letter closed by tendering the following proposal:
. . . However, in an effort to settle this matter, and to terminate the difficulties prior to further dispute and litigation, General Mortgage offers to pay $100.00 per acre cash for the Peacock Ranch and fee simple title thereto. This offer is made solely in the nature of settlement of the disputes which have arisen and is not in any manner whatsoever to be deemed to waive the rights of General Mortgage contained in the above referenced contract, which General Mortgage stands ready to perform and insists that you perform.
On April 9, 1973, appellant again informed appellees, by letter, it desired to finalize the transaction providing title to the property had been cleared and the terms of the agreement are followed. Appellant also advised appellees that appellant had advised the escrow agent to retain the earnest money since appellant was of the opinion that appellees had breached the agreement while appellant had not.
On April 13, 1973, appellees advised appellant:
In reference to your letter of April 5, 1973, concerning your counter offer of $100.00 cash per acre or approximately total cash offer of $380,000.00, we will not accept this counter offer as it is totally unacceptable and we are still considering General Mortgage bound to the original contract and expect them to complete said contract or consider themselves in breach thereof. I am sure you are aware that we have done everything possible in order to close this sale and if General Mortgage is standing ready to perform, then I suggest this be done immediately and that they pay on the contract as originally agreed.
On April 18, 1973, appellant informed appellees by letter:
. . . If it will be of assistance, I will gladly forward a Xerox copy of the title report supplied by American Title Insurance Company through Standard Abstract and Title Company, Little Rock, Arkansas. On second thought, please find same enclosed, which indicates that title to this property is by no means in the.condition your letter indicates.
... In addition, we reiterate that General Mortgage Corporation is prepared to consummate this transaction at a time when the Peacocks are prepared to close upon the terms and conditions expressed in the contract. If you will notify me in writing that General Mortgage is no longer expected to assume the indebtedness at Production Credit and that all of the objections set out in this title report and exceptions thereto, will be eliminated and removed at closing, we will proceed to arrange for a closing time.
On April 2, 1973, appellees entered into an agreement with Franklin Collier to sell the lands for $510,000.00 and the sale was finalized on May 14, 1973.
On April 30, 1973, Franklin Collier entered into an agreement with Irving H. Brauer to sell the lands for $725,000.00 and this transaction was closed on May 22,1973.
Appellant instituted its action on September 14, 1974, seeking damages for $ 168,000.00 for breach of the offer and acceptance agreement. Appellees filed their answer and counterclaim claiming damages against appellant for breach of contract.
In 91 C.J.S., Vendors & Purchasers, § 124, at page 1052, it is provided:
If one party fails to perform or tender performance within a reasonable time, and the other fails within a reasonable time to default the first party by tendering his own performance, rescission of the contract by mutual consent may be presumed.
The Arkansas Supreme Court in Hicks v. Woodruff, 238 Ark. 481, 382 S.W. 2d 586 (1964), emphasized that a contract may be rescinded by conduct which indicates intention to abandon contractual rights. The Supreme Court in articulating this view adopted the following comment from Restatement, Contracts, § 406, comment b (1932):
'b. The agreement to rescind need not be expressed in words. Mutual assent to abandon a contract, like mutual assent to form one, may be manifested in other ways than by words. Therefore, if either party even wrongfully expresses a wish or intention to abandon performance of the contract, and the other party fails to object, there may be sometimes circumstances justifying the inference that he assents. If so there is rescission by mutual assent; but mere failure to object to repudiation is. not a manifestation of assent to a rescission. Sometimes even circumstances of a negative character, such as the failure by both sides to take any steps looking towards the enforcement or performance of a contract, may amount to a manifestation of mutual assent to rescind it.’
We are of the opinion that paragraph 13 of the offer and acceptance agreement between the parties is the pivotal point in resolving this controversy. Paragraph 13 provides:
Payment of principal and interest due Northwestern Mut. Ins. Co. on Jan. 1,1973, will be paid by buyer. Said interest to be applied against unpaid balance of principal owed to sellers.
We are persuaded that General Mortgage Corporation breached the agreement by not paying Northwestern Mutual, or tending to the escrow agent, $22,500.00 on January 1, 1973, as it had agreed. Appellant was fully aware of its obligation to pay Northwestern Mutual for appellant advised appellees on January 10, 1973, “We need your directions as to where and to whom General Mortgage should direct payment due pursuant to terms of the Earnest Money Contract’ ’. Furthermore, appellant stated ‘ ‘ General Mortgage is prepare to forward the pre-closing payment as provided in the contract, upon receipt of your directions.” Appellees immediately forwarded to General Mortgage Corporation the name, address and the amount due, but appellant failed to make this payment. Northwestern Mutual held a first mortgage on the property involved and while the payment due in January,. 1973, was only $33,500.00, the total indebtedness owed Northwestern Mutual was $188,000.00; therefore, it is plain that the failure of appellant to perform, as it had agreed, involved a matter which was vital to the existence of the agreement between appellant and appellees.
• On the other hand, appellees, while recognizing that appellant' had agreed to pay the annual installment due Northwestern Mutual acquiesced in appellant’s conduct. The conduct of both appellant and appellees clearly evidences a rescission of the agreement.
Whether the conduct of a vendor and purchaser amounts to an abandonment of a land contract is ordinarily a question of fact; however, it may become a matter of law where the acts and conduct are clear and unambiguous as in the instant case. Wallace v. Johnson, 217 Ark. 878, 234 S.W. 2d 49 (1950); 77 Am. Jur. 2d, Vendor and Purchaser, § 543, at page 671; 91 C.J.S., Vendor and Purchaser, § 121.
While the record reflects that the parties continued to communicate with each other after appellant defaulted in paying Northwestern Mutual, appellant, upon learning that appellees were negotiating an agreement to sell the lands to a third party, offered appellees $100.00 per acre cash for the property which was rejected. We do not perceive a waiver by appellees by advising appellant that if appellant proceeded immediately to comply with the original terms of the agreement, appellees were willing, after all, to sell the property to appellant. The fact remains that appellant took no steps to pay Northwestern Mutual or make a tender; appellant was not in possession of the property and knew that appellees were negotiating a sale with Franklin Collier.
In Hargis v. Edrington, 113 Ark. 433, 168 S.W. 1095 (1914), our Supreme Court stated that a vendee has a duty to assert promptly his intention to perform his contract of purchase when he is aware that the vendor is treating the agreement.as having been rescinded.
Although the trial court did not articulate any findings, it is plain that the trial judge recognized that the parties had abandoned the contract or there was evidence of mutual breaches and concluded that the parties should be restored to the status quo. We are persuaded that the action of the trial court is supported by substantial evidence.
Affirmed.
Wright, C.J., and Hays, J., dissent.
The offer and acceptance does not designate a definite date for finalizing the transaction. A stipulation in the offer and acceptance that refers to closing simply provides: “Interest will commence on the day of closing or on January 15, 1973, whichever is first, i.e. on unpaid balance on assumed notes.”
Appellant at no time supplied appellees with a copy of a title opinion regarding the condition of the land as determined by appellant’s attorney from an examination of the abstracts supplied by appellees. As previously indicated, the title insurance commitment containing the exceptions was' issued to appellant om March 1, 1973.
Our Supreme Court in Wallace v. Johnson, 217 Ark. 878, 243 S.W. 2d 49 (1950), recognized that the terms abandonmént and rescission are words quite often used indiscriminately.
Appellant was also aware that Franklin Collier sold the property to Irving H. Brauer for 5725,000.00 on May 22, 1973. | [
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Lyle Brown, Justice.
Appellant Woodrow Cook, administrator of the estate of Elijah J. Bryeans, deceased, and appellee Andy Bevill, each claim ownership of the proceeds of a certificate of deposit issued in the names of E. J. Bryeans or Andy Bevill. Since the certificate was dated April 18, 1967, resolving the issue requires an interpretation of Acts 78 and 444 of 1965. This is a case of first impression under those acts. The chancellor, in awarding the proceeds to Bevill, applied Act 444.
Elijah Bryeans held a deposit box at Farmers Bank of Blytheville when he.died intestate in September 1967. lie had placed in the lockbox two certificates of deposit. One was in the principal sum of $10,000 and in Mr. Bryeans’ name only. The other certificate was in the sum of $8360 and was issued in the form “E. J. Bryeans or Andy Bevill.” The depositor signed nothing. Mr. Bryeans purchased the certificates with his individual funds and he alone was given a key to the lockbox. His heirs apparently consisted of two sisters, one of whom was the mother of Andy Bevill. There was a close re- lat ions hip between the uncle and Ms nephew. Mr. Bryeans was in ill health during the last eight years of his life and Andy was very attentive to him. It was the banker’s recollection that Mr. Bryeans expressed an intention that Andy Bevill have the proceeds of the deposit made in the two names in the event of Mr. Bryeans ’ prior death.
There are three legislative enactments to be considered. They are Act 260 of 1937, appearing in Ark. Stat. Ann. § 67-521 (1947); Act 444 of 1965, digested in Ark. Stat. Ann. § 67-521 (Repl. 1966); and Act 78 of 1965, Ark. Stat. Ann. § 67-552 (Repl. 1966). Although Act 260 was amended by Act 444 we think Act 260 is significant in shedding light on the intent of the Legislature when it enacted Act 444. After a careful analysis of the enumerated acts we conclude that Act 444 is not a survivorship statute, as was its predecessor, Act 260. In that respect we disagree with the chancellor.
Prior to 1965 we had one short statute dealing with the rights of parties in bank deposits standing in two names. That was Act 260 of 1937. Here are the pertinent parts, including the title:
AN ACT Defining Rights of Parties in Bank Deposits in Two Names and Providing for the Payment of the Same.
When a deposit shall have been made by any person in the name of such depositor and another person and in form to be paid to either, or the survivor of them, such deposit thereupon and any additions thereto made by either of such persons, upon the making thereof, shall become the property of such persons as joint tenants, and the same, together with all interest thereon, shall be held for the exclusive use of the persons so named, and may be paid to either during the lifetime of both, or to the survivor after the death of one of them; and
such payment and the receipt or acquittance of the one to whom such payment is made shall be a valid and sufficient release and discharge to said bank for all payments made on account of such deposit prior to the receipt by said bank of notice in writing signed by an}^ one of such joint tenants not to pay such deposit in accordance with the terms thereof.
Act 260 had a twofold purpose. It protected the bank in making payments from deposits in the names of any two persons; and it declared “a definite and conclusive relation of the parties to such deposit on the death of either...” Pye v. Higgason, 210 Ark. 347. 195 S.W. 2d 632 (1946). The modification of Act 260 by Act 444 was preceded by the passage of Act 78. The provisions of Act 78 have an important bearing on our interpretation of Act 444 and for that reason Act 78 should first be discussed.
Act 78 was approved February 12, 1965. It was our first comprehensive enactment governing joint bank accounts. Two years previously a very similar act was passed affecting joint deposits in savings and loan associations. Bee Ark. Stat. Ann. § 67-1838 (Repl. 1966). The principal virtue of Act 78 is the requirement of designation in writing; that is, when an account is opened or a certificate of deposit is issued in the name of two or more persons, a written designation is made as to the investiture of title. The act enumerates joint tenancy, joint tenancy with rigid of survivorship, and tenancy in common. It also authorizes a depositor to designate that on his death the funds represented by the account or certificate shall be paid the person or persons listed by the depositor. An exception to the requirement of making written designation is made as to an account or certificate in the name of husband and wife; in that situation the deposit becomes by operation of the statute a tenancy by the entirety.
All paragraphs in Act 78, excepting the one designated (d), deal directly or indirectly with survivorship. Paragraph (d) reads as follows:
If an account is opened or a certificate of deposit is purchased in the name of two (2) or more persons, whether as joint tenants, tenants by the enlirety, tenants in common, or otherwise, a banking institution shall pay withdrawal requests, accept pledges of the same, and otherwise deal in any maimer with the account or certificate of deposit upon the direction of any one (1) of the persons named therein, whether the other persons named in said account or certificate of deposit be living or not; unless one (1) of such persons named therein shall by written instructions delivered to the banking institution designate that the signature of more than one (1) person shall, be required to deal with such account or certificate of deposit.
We have italicized the phrase in paragraph (d) “or otherwise.” That phrase could not afford protection io the hank in every conceivable situation. It must be interpreted in light of the context of Act 78 of which it is a part. Designated in writing is the theme of the entire act. Paragraph (cl) refers to those accounts and certificates of deposit wherein the named persons are designated as joint tenants, tenants by the entirety, tenants in common, or other designation is made affecting survivorship. The italicized phrase is the meaning attributable to the term “or other wise.” Therefore, in a matter’ of weeks after the passage and approval by the Governor of Act 78, the General Assembly amended Act 260 of 1937 to delete survivorship therefrom and to afford further protection to the banks in paying out funds held in tire names of two or more persons. In its effort to eliminate the treatment of survivorship by Act 260, the Legislature made these significant changes in a bill which became Act 444;
1. The phrase in the title of Act 260, “Defining Rights of Parties in Bank Deposits in Two Names,” was deleted from the title of Act 444. The single purpose staled in the new title was simply to authorize a bank to pay to any one of the multiple parties named in a deposit the proceeds of the account.
2. Act 444 deleted from Act 260 the phrases “or to the survivor of them” and “or to the survivor after the death of one of them.” Consequently the word “survivor” nowhere appears in Act 444.
Act 78 did not provide protection for a bank in the event it paid out funds in instances where no written designation of survivorship was made and the named parties were still alive. Act 444 established that protection when such an account is processed in the manner therein provided.
The chancellor took the position that the phrase in Act 444 — “shall become the property of such persons as joint tenants” — created a sundvorship. ¥e have not lightly considered that theory; however, we think that position is outweighed when we consider the entire picture of the legislation and find what reasonably convinces us was the legislative intent. We could cite a multitude of cases which hold the primary rule in statutory construction to be the determination of the intent of the lawmakers. If that cannot be precisely ascertained from the language of the act, we look to other sources. The legislative history, the title, the object sought to be accomplished, and the expediency of the act are among the many appropriate sources which shed light on legislative intent.
It is a mild statement to say that Act 260 of 1937 created a maze of problems in the handling of joint bank deposits and certificates. Much litigation over those deposits has reached this Court. Many decisions had to be made by ascertaining the intent of the depositor from parol evidence and “after death had sealed the lips of the person principally concerned.” Ratliff v. Ratliff, Adm’x., 237 Ark. 191, 372 S.W. 2d 216 (1963). Act 260 had minimal written requirements which fell far short of being sufficient. In that situation the Legislature and the banking interests turned to the comprehensive act under which the building and loan associations had been operating for two years. It was incorporated, in most essentials, in Act 78. That act was supplemented by Act 444.
In harmonizing the two acts of 1965 we have not thus far mentioned some other factors which are significant. The same legislative body authored both acts; the same legislative committees on banks and banking evaluated the proposed legislation; and we perceive that leaders in the banking business attended the public hearings. It is inconceivable that they would intentionally approve a comprehensive act in one breath and then forthwith pass a second act substantially out of harmony with the first. Had it been their intention to modify any part of Act 78 they would surely have so stated in Act 444 and in terms of specifics. Our Court follows a maxim of the common law, namely, that acts passed on the same subject should be construed together and, if possible, reconciled to effect the legislative intent. McFarland v. The Bank of the State, 4 Ark. 410 (1842); Ward v. Harwood, 239 Ark. 71, 387 S.W. 2d 318 (1965).
This final point as to whether Act 444 treats survivorship. At one time this Court said that Act 260— predecessor to Act 444 — did not establish rights of survivorship between the named parties. Black v. Black, 399 Ark. 609, 335 S.W. 2d 837 (1940). Since in 1940 this Court thought that Act 260 did not apply to survivorship, we cannot conceive it to so apply after being amended and stripped of its original title referring to “right of the parties in bank deposits in two names”; of the phrase “to be jjaid to either or to the survivor of them”; and of the statement “or to the survivor after the death of one of them.”
We hold that with reference to bank deposits and certificates in multiple names made after the effective date of Act 78, there must be a substantial compliance with tiie “designation in writing” requirements of that act in order to effect survivorship. Mr. Bryeans, in purchasing' the certificate, did not affix his signature to any instrument. As was the situation in Ratliff there was no minimum formal action taken by the depositor.
The decree is reversed and the cause remanded with directions that judgment be entered in favor of appellant.
Harris, C.J., and Fogleman and Holt, JJ., dissent.
John A. Fogleman, Justice.
I -would affirm the judgment of the chancery court. While I agree, academically, with many of the statements contained in the majority opinion and with many of the rules of construction stated therein, my fundamental basis of disagreement with the majority is that I find absolutely no necessity for resort to rules of interpretation and construction in determining the application and effect of Act 444 of 1965, or in determining the legislative intent. These rules may be resorted to only where necessary, i.c., where the language of the statute itself is ambiguous or gives rise to some doubt about the effect of the act. There was no reason in this case to seek the legislative intent outside the language of the statute itself or to rely upon rules of construction. In order that the treatment of Act 444 be put in proper perspective, it is necessary to examine the full text thereof. It appears as Ark. St-at. Ann. § 67-521 (Repl. 1966). It reads:
“When a deposit shall have been made in the names of two [2] or more persons and in form to be paid to any of the persons so named, such de posit and any additions thereto made by any of the persons named in the account, shall become the property of such persons as joint tenants, and the same, together with all interest thereon, shall be held for the exclusive use of the persons so named, and may be paid to anj^ of said persons. Such payment and the receipt or acquittance of the one to whom such payment is made shall be a valid and sufficient release and discharge of said bank for all payments made on account of such deposit prior to the receipt by said bank of notice in writing signed by any one of said joint tenants not to pay such deposit in accordance with the terms thereof.”
The language of this statute is clear and unambiguous. This being the case, there is no justification for resort to any exploration for the legislative intent or room for construction. Where the language of a statute is unambiguous the intention of the legislature must be gathered therefrom. Arkansas Valley Trust Co. v. Young, 128 Ark. 42, 195 S.W. 36. It must be sought from the plain meaning of the language used. Hopper v. Fagan, 151 Ark. 428, 236 S.W. 820; Wheelis v. Franks, 189 Ark. 373, 72 S.W. 2d 231; McCarroll v. Williams, 195 Ark. 715, 114 S.W. 2d 18. In Call v. Wharton, 204 Ark. 544, 162 S.W. 2d 916, we said:
“In interpreting and construing the meaning of statutes, the guiding rule is very clearly announced by the late Chief Justice Hart in Berry v. Hale, 184 Ark. 655, 43 S.W. 2d 225, 226, in this language: ‘This court has uniformly held that, in the construction and interpretation of statutes, the intention of the Legislature is to be ascertained and given effect from the language of the act if that can be done ...’ ”
In Refunding Board of Arkansas v. Bailey, 190 Ark. 558, 80 S.W. 2d 61, we held that the primary rule of construction of statutes is to ascertain and give effect to the in tent of the lawmakers. The guide to doing so is clearly set out in that opinion where we said:
“In construing a statute, it may he, and frequently is necessary to consider other acts in connection with the act under consideration, in order to ascertain the intention of the Legislature. But where, by the act itself, the intention of the Legislature is plavn from the face of the statute and the language used, there is no room for construction.
'It is beyond question the duty of courts in construing statutes to give effect to the intent of the lawmaking power, and seek for that intent in every legitimate way. But * * # first of all in the words and language employed; and if the ivords are free from ambiguity. and doubt, ami express plainly, clearly and distinctly the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation. It is not allowable to interpret what has no need of interpretation. The statute itself furnishes the best means of its own exposition; and if the sense in ivhich words were intended to be used can be clearly ascertained from its parts and provisions, the intention thus indicated will prevail without resorting to other means of aiding in the constructionLewis’ Sutherland Statutory Construction, vol. 2, p. 698.” TLinphasis ours.]
Construction and interpretation have no place where the terms of a statute are plain and certain. Hopper v. Fagan, supra. While it is the duty of the court, in interpreting a statute, to give effect to the intention of the lawmaking body, when the act is plain and unambiguous so that no doubt arises from its terms, it needs no interpretation, and courts must follow the act implicitly. Broadway-Main Street Bridge District v. Taylor, 186 Ark. 1158, 57 S.W. 2d 1041. Where the language of a statute is plain and unambiguous, it needs no con struction, anti it is the duty of this court to ascribe to the statute the meaning evidenced by the language used. St. Louis I.M. & S. Ry. Co. v. Waldrop, 93 Ark. 42, 123 S.W. 778; Agee v. Snodgrass, 196 Ark. 266, 117 S.W. 2d 28. Where the language used is clear and unambiguous, we are concerned with the meaning of what the legislature said or did rather than what it might have intended. City of Little Rock v. Arkansas Corporation Commission, 209 Ark. 18, 189 S.W. 2d 382. We must give unambiguous language employed in an act its obvious meaning. Wheelis v. Franks, 189 Ark. 373, 72 S.W. 2d 231. The courts have no power to construe a statute to mean anything other than what it says, if it is plain and unambiguous. Johnson v. Lowman, 198 Ark. 8, 97 S.W. 2d 86. See also Cross v. Graham, 224 Ark. 277, 272 S.W. 2d 682. Neither the exigencies of a case nor a resort to extrinsic facts will be permitted to alter the meaning of plain and unambiguous language used in a statute. Cunningham v. Keeshan, 110 Ark. 99, 161 S.W. 170. It is only where the terms used in an act are ambiguous that construction is permissible to determine the legislative intent. Wilson v. Biscoe, 11 Ark. 44. We must, determine the intention of the legislature from the language of the act itself, where it is unambiguous. Raines v. Bolick, 183 Ark. 832, 39 S.W. 2d 309; Tolleson v. McMillan, 192 Ark. 111, 90 S.W. 2d 990; Miller v. Yell and Pope Bridge District, 175 Ark. 314, 299 S.W. 15; Manley v. Moon, 177 Ark. 260, 6 S.W. 2d 281.
There is nothing unclear or ambiguous about language saying that when a bank deposit is made in a certain way and under such circumstances “such deposit and any additions thereto made by any of the persons named in the account shall become the property of such persons as joint tenants.” In order to reach its result, it ay as necessary for the majority to read this language out of the statute. This was unjustified and unauthorized. A statute must be construed, if possible, so that no clause, sentence or word shall be void, superfluous or insignificant. Wilson v. Biscoe, supra. "Where the legislative intent can be ascertained from the language of the act itself, there is no excuse for adding to or changing the meaning of the language employed. Call v. Wharton, 204 Ark. 544, 162 S.W. 2d 916; Berry v. Sale, 184 Ark. 655, 43 S.W. 2d 225. We are required to give effect to all language employed in the context if reasonable and consistent. McClure v. McClure, 205 Ark. 1032, 172 S.W. 2d 243. Every word in a statute must be given effect if possible. Monsanto Chemical Company v. Thornbrough, 229 Ark. 362, 314 S.W. 2d 493. Where' the language is plain and unambiguous, courts cannot add to, take from, or change the language of the statute to give effect to any supposed intention of the legislature. McCarroll v. Williams, 195 Ark. 715, 114 S.W. 2d 18. To do so would be to encroach upon the peculiar function of the sovereign power lodged in a coordinate branch of the government. Arkansas Valley Trust Co. v. Young, 128 Ark. 42, 195 S.W. 36. We cannot refuse to give effect to the plain language of a statute merely because we think it brings about an inequitable result in a particular case. Cupp v. Frazier’s Heirs, 239 Ark. 77, 387 S.W. 2d 328.
Acts 78 and 444 can be construed in harmony, without doing violence to any of the language of Act 444. New legislation must be construed with reference to existing legislation on the subject. Newton County Republican Central Committee v. Clark, 228 Ark. 965, 311 S.W. 2d 774. I agree with the majority that Act 78 appearing as Ark. Stat. Ann. § 67-552 (Repl. 1966) has to do only with accounts in two or more names where the parties are either designated as husband and wife or where the relationship of the parties is designated in writing. Thus, in order for Act 78 to be effective there must either be a designation in writing that the account is to be held in “joint tenancy” or in “joint tenancy with right of survivorship” or as “tenants in common” or there must be a designation of the parties to a banking institution as husband and wife. Nothing whatever is said in that act about tlie title to a deposit in two or more names in form to be paid to any of the persons named where there is no such designation. It is obvious to me that the General Assembly, its committees, the leaders in the banking business and anyone else who had anything to do with the passage of Act 444 realized that the specific repeal of Act 260 of 1937 by Act 78 of 1965 left the law in a quagmire as to the ownership of deposits where no designation was made. None of the decisions under Act 260 of 1937 could any longer be applicable. Consequently, they virtually re-enacted Act 260 of 1937 eliminating therefrom only the requirement that the deposit must be payable to either or the survivor. Thus the act as amended can only cover situations where a designation has not been made. The differences in Act 260 of 1937 and Act 444 of 1965 are insignificant, except as above mentioned. Whatever differences there are, the similarities are such that the holding in Pye v. Higgason, 210 Ark. 347, 195 S.W. 2d 632, with reference to the 1937 act as to purposes should be controlling. In that c-ase it was held that the act, because of the language it contained, was passed, not only for the protection of the bank in which the account was deposited, but for the purpose of declaring a definite and conclusive relation of the parties to such deposit on the death of either and prior to receipt by the bank of written notice signed by any one of the joint tenants not to pay the deposit in accordance with its terms. When the legislature uses one act as the model for a new one, there is a presumption that it knew of the construction given the earlier act and the courts will not give the new act a different construction. Adams v. Hale, 213 Ark. 589, 212 S.W. 2d 330. I humbly submit that that is just what the majority has done in this case. It has not suggested what the words “shall become the property of such persons as joint tenants” should be taken to mean in Act 444. It has been held that survivorship is one of the results of joint tenancy. Ferrel v. Holland, 205 Ark. 523, 169 S.W. 2d 643; Pye v. Higgason, supra. I submit that joint tenancy means just that in Act 444, especially since the legislature did not give the words any definition eliminating survivorship.
Undue emphasis is placed by the majority upon the title of Act 444. The title of an act is no part of the act itself. Laprairie v. City of Hot Springs, 124 Ark. 346, 187 S.W. 442; Special School District No. 33 v. Howard, 124 Ark. 475, 187 S.W. 444; McLeod v. Purnell, 164 Ark. 596, 262 S.W 682; Glover v. Henry, 231 Ark. 111, 328 S.W. 2d 382. There is no constitutional requirement that an act have a title. The legislature and courts of Arkansas have not been hamstrung by limitation on subject matter by titles of acts since the adoption of the constitution of 1874. Laprairie v. City of Hot Springs, supra. It is only where the meaning of the lawmakers is in doubt from an examination of the act itself that the title of a statute has any force in interpretation of its meaning. Anderson, “Drafting a Legislative Act in Arkansas,” 2 Ark. L. Rev. 382, 385, 386; State v. White, 170 Ark. 880, 281 S.W. 678; City of Conway v. Summers, 176 Ark. 796, 4 S.W. 2d 19; Graves v. Burns, 194 Ark. 177, 106 S.W. 2d 602. See also Huff v. Eudy, 173 Ark. 464, 292 S.W. 693; Matthews v. Byrd, 187 Ark. 458, 60 S.W. 2d 909, 2 A.L.R. 385; Special School District No. 33 v. Howard, supra; Drainage District No. 18 v. McMeen, 183 Ark. 984, 39 S.W. 2d 713; Matthews v. Byrd, supra; Berry v. Gordon, 237 Ark. 547, 376 S.W. 2d 279.
I find reinforcement for my construction of the act in two other factors, which are characteristic of joint tenancies. Under Act 444 either of the persons in whose name the account is carried may give written notice to the bank in which the funds are deposited not to pay such deposit in accordance with the terms thereof. This is certainly inconsistent with a result that makes the estate of a party to a joint account who dies the owner of the account rather than the survivor. The other factor is that the bank’s payment of the account to either party is not limited to their joint lives. Thus every word in Act 444 is consistent with a joint tenancy but not with, a tenancy in common or individual ownership by one party to the exclusion of the other.
In view of the fact that the construction I give the act would harmonize the two acts passed at the same session, would not result in rendering any of the words of the latest act passed meaningless, and would not resolve any conflict in favor of the earlier act passed, I submit that this is the proper construction.
Even if rules of interpretation or construction were properly resorted to, the majority opinion permits the last act passed to be amended by a prior act. This violates a primary rule of statutory construction. Where the legislature enacts two acts at the same session which are conflicting, the latest expression of the legislative will should prevail. Williams v. State, 215 Ark. 757, 223 S.W. 2d 190.
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Darrell Hickman, Justice.
This is a case about an election but it is not a suit to void an election because of irregularities. It is a suit after an election by a losing candidate seeking to declare an election statute void and thereby attempting to prevent the winner from serving.
The statute was declared unconstitutional by the circuit court but no relief was granted, the trial court finding essentially that the suit was brought too late. We agree and affirm the judgment.
In issue is the mayoral election of West Memphis, a first class city located in Crittenden County. It was held November 2, 1982, and there were six candidates. A total of 7,636 votes were cast. Leo Chitman received the most votes, 2,130, and Joyce Ferguson, the incumbent mayor, was next with 2,069 votes. No candidate received a majority of the votes cast. The election commission did not intend to, and did not, schedule a run-off election between Chitman and Ferguson. Chitman was certified the winner on November 8th.
The reason no run-off was scheduled is because the General Assembly passed Act 175 of 1977 declaring that run-offs in elections for mayors of cities of the first class having mayor/council form of government would only apply to cities having a population between 57,000 and 61,000 population. This Act amended the existing law which provided that in all first class cities with mayor/ council form of government a run-off election must be held two weeks from the day of the election if no candidate receives a majority of votes.
Another suit challenging Act 175 was filed two days after the election and Ferguson could have joined in that suit. She knew of the suit but counsel suggests she declined to join after being told she was not a necessary party. The trial judge, after offering a continuance in order to permit her joinder, dismissed the suit since she was not a party.
This suit was filed late on the day a run-off election would have been held under the old law, after Chitman had been certified. Ultimately the plaintiffs were Ferguson, an eighteen-year-old voter, another candidate in the race, and his wife. They appealed from the trial court’s adverse ruling and argue since Act 175 is unconstitutional, Chitman cannot be qualified for the mayor’s office; therefore, Ferguson, the incumbent mayor, still holds office under the theory announced in Justice v. Campbell, 241 Ark. 802, 410 S.W.2d 601 (1967).
We agree with the trial court’s decision that Act 175 is local legislation in violation of ARK. CONST., amend. XIV. Act 175 is flagrantly local, intended to only apply to two out of numerous first class cities. Knoop v. City of Little Rock, 277 Ark. 13, 638 S.W.2d 670 (1982). And we agree Fergus on waited too late. We do not favor suits after elections by candidates seeking to void an election they would not contest if they had won. We have said many times that some matters that are mandatory before an election are merely directory after an election. Henley v. Goggin, 241 Ark. 348, 407 S.W.2d 732 (1966); Henderson v, Gladish, 198 Ark. 217, 128 S.W.2d 257 (1939); Cf. Gay v. Booker, 251 Ark. 565, 473 S.W.2d 441 (1971). Sometimes the public interest demands the contest cease. In Johnson v. Darnell, 220 Ark. 625, 249 S.W.2d 5 (1952), we held that an otóipál iwajs estopped to challenge the constitutionality of a stáiute under which he claimed benefits. In Searcy County v. Stephenson, 244 Ark. 54, 424 S.W.2d 369 (1968), we held that a candidate was estopped after an election from seeking to recover an illegal filing fee because he could have easily challenged the fee before the election. Ferguson, or any of the other candidates, could have challenged this Act before the election.
In fact, Ferguson was elected two years before under the same Act. Since she received about 70% of the vote in that election, she did not complain about the law. But that merely reinforces the point that a candidate ought to challenge such an act before the votes are counted.
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John I. Purtle, Justice.
The Pope County Circuit Court issued a writ of mandamus directing the Russellville City Clerk to determine the sufficiency of a referendum petition filed for the purpose of referring an ordinance to the people for an election. The order was stayed pending this appeal. Two points are argued for reversal. First, that the circuit court was without jurisdiction to enter the order of mandamus. Second, if the circuit court had jurisdiction its decision was clearly erroneous and contrary to the law and the facts. We do not agree with either argument.
On November 12,1981, the City Council of Russellville, Arkansas enacted ordinance No. 1012 which rezoned certain property within the city. On December 10, 1981, appellees filed an instrument with the city council, in which they sought to refer the above ordinance to the people for a vote. The city clerk then issued a notice of hearing which was scheduled for January 12, 1982. Following the public hearing on the petition the city council and the city clerk, Charles F. Howell, declared the petition for referral of ordinance No. 1012 to be insufficient to the extent that it amounted to nothing and there was nothing which could be done to validate the petition because the time for referral of the ordinance had passed. No time to correct any deficiencies was given to petitioners. Thereafter, a petition was filed in the circuit court for mandamus to compel the city clerk to make a findingas to whether the petition was sufficient and if it were found insufficient, to give petitioners a period of time within which to remedy the deficiencies. After first determining that the city clerk had acted in compliance with Amendment 7 to the Arkansas Constitution, the circuit court entered an order directing the city clerk to comply with Amendment 7 by determining the sufficiency of the referendum petition. Several times the city clerk stated the petition for referendum was insufficient but each time he refused to allow appellees the opportunity to amend, modify or otherwise correct the petition. On June 14, 1982, the circuit court ordered the clerk to give petitioners (appellees) ten days within which to correct or amend the petition. It is from that order that this appeal is taken.
The only issue before this court is the legality of the order of mandamus issued by the circuit court directing the city clerk to comply with Amendment 7 by giving appellees written notice of the insufficiency of the referendum petition and to permit correction or amendment within ten days. Therefore, we will not consider the sufficiency of the referendum petition in the present action. Amendment 7 deals with the sufficiency of such petitions by stating:
If the Secretary of State, county clerk or city clerk, as the case may be, shall decide any petition to be insufficient, he shall without delay notify the sponsors of such petition, and permit. . . ten days in the instance of a municipal or county petition, for correction or amendment.
The burden of proof in this case is upon those opposing the petition. Although the appellants originally objected to the circuit court’s jurisdiction, they subsequently filed numerous requests for affirmative relief and in effect abandoned the objection. After sponsors of an initiative or referendum have been notified by the city clerk that the petition is insufficient they have ten days within which to correct or amend the petition. Any appeal from the decision of the clerk shall be taken to chancery court. However, appellees were not appealing from the decision of the clerk, rather, they were trying to force him to act one way or the other.
Ark. Stat. Ann. § 33-101 (Repl. 1962) gave both circuit and chancery courts jurisdiction to determine petitions for writ of mandamus. This statute has been considered authority for a circuit court to compel the performance of a ministerial duty. Cox v. Wentz, 231 Ark. 205, 329 S.W.2d 413 (1959). This court has held that chancery courts do not have the power to issue writs of mandamus. Nethercutt v. Pulaski County Special School Dist., 248 Ark. 143, 450 S.W.2d 777 (1970). Therefore, the circuit court had jurisdiction to issue a writ of mandamus.
Appellant relies upon Townsend v. McDonald, 184 Ark. 273, 42 S. W.2d 410 (1931) as authority for upholding the action taken by the city clerk. In Townsend the issue was whether the Arkansas Secretary of State should be required to accept petitions for a referendum on Act 345 of 1931. This court ordered that the petition for mandamus be dismissed. The petition for mandamus in the Townsend case was filed directly with the supreme court as provided for in Amendment 7. We considered the petition on its merits and decided that failure to attach a full and correct copy of the measure to be voted upon rendered the petition invalid. In the case before us we do not consider the sufficiency of the petition on its merits. In Townsend this court approved the holding in State ex rel. v. Olcott, 62 Or. 277 (1912). The court in Olcott held that if the petition for referendum substantially complied with the requirements of the law then it was sufficient. The Oregon court further held that it was not necessary to have a full and correct copy of the title and text of the measure attached to each sheet of the petition. In the case before us the petitioners seek to have the city clerk inform them of the nature of the deficiencies of their petition and to give them ten days within which to correct or amend. This differs from the relief sought in Townsend because there petitioners sought to compel the Arkansas Secretary of State to accept the petitions and certify the matter for an election. Time within which to correct or amend a petition for referendum was not considered or discussed in Townsend. Amendment 7 should be liberally construed in order to meet the purposes for which it was adopted. Armstrong v. Sturch, 235 Ark. 571, 361 S.W.2d 77 (1962). We cannot determine from the record whether any of the petitions had attached to them a copy of ordinance No. 1012. It is not necessary that a full and correct copy of the referred measure be attached to each sheet of the petition. Leigh v. Hall, 232 Ark. 558, 339 S.W.2d 104 (1960).
We must, therefore, affirm the decision of the lower court in directing the Russellville City Clerk to comply with Amendment 7 of the Arkansas Constitution.
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George Rose Smith, Justice.
In 1981 the appellee Ronald L. Burton, the municipal judge of the city of Conway, held in a criminal case in his court that two ordinances adopted earlier that year by the Conway city council were unconstitutional. That decision threatened to result in substantial losses of revenue to the city. The mayor and the members of the city council brought this action against Judge Burton, his court clerk, and the chief of police, for a declaratory judgment upholding the ordinances. This appeal by the mayor and council is from a declaratory judgment holding the ordinances to be partly valid and partly invalid. For reversal the appellants insist that the ordinances are valid in their entirety. Our jurisdiction is under Rule 29 (1) (c).
The first ordinance, No. 81-26, fixed minimum fines and minimum appearance bonds for 53 enumerated mis demeanors. We list a few of the specified offenses and minimum fines:
Theft of property $100.00
Reckless driving 100.00
150.00 Class A misdemeanor offense
100.00 Class B misdemeanor offense
50.00 Class C misdemeanor offense
The second ordinance, No. 81-36, provided that when a person charged with an offense under the first ordinance deposits a sum of money as a fine and costs in lieu of any court appearance, "said sum shall be equal to the minimum fine for such offense,” plus costs. Judge Burton held that the ordinances unconstitutionally encroached upon the municipal court’s exclusive authority to fix bail bonds for the release of accused persons. The circuit judge agreed with that point of view, but he upheld Ordinance 81-26 to the extent that it fixes minimum fines for Class A, B, and C misdemeanors, because the Criminal Code fixes no minimum fines for those offenses. Ark. Stat. Ann. § 41-1101 (Repl. 1977).
We hold both ordinances invalid, on the ground that they exceed the city’s statutory authority to fix the penalty for offenses defined and punishable by state law. A city has express authority to prohibit and punish any act which the state laws make a misdemeanor, Ark. Stat. Ann. § 19-2410 (Repl. 1980), but that section declares that a city cannot prescribe penalties exceeding those prescribed for similar offenses against the state laws. The next section, § 19-2411, makes it unlawful for a city to prescribe less penalties than those prescribed by state laws for similar offenses. Thus the penalties fixed by the city must fall within the state mínimums and máximums.
The ordinances in question do not observe the permissible limits. For example, all the offenses mentioned earlier in this opinion subject the offender not merely to a fine but also to possible imprisonment: Theft of property, as a Class A misdemeanor, § 41-2203; reckless driving, § 75-1003 (Repl. 1979); and classified misdemeanors A, B, and C, §41-901. The effect of the two ordinances, taken together, is to permit anyone who commits such offenses to avoid any possibility of imprisonment merely by paying the minimum fine fixed by the city, plus costs. The ordinances unquestionably prescribe a minimum penalty substantially less than that fixed by state law. On the other hand, we do not question the city’s authority to provide for the forfeiture of cash deposits in lieu of court appearances in minor cases, such as traffic tickets. Thompson v. City of Little Rock, 264 Ark. 213, 570 S.W.2d 262 (1978).
This opinion will serve as a declaratory judgment holding the ordinances to be invalid. The appellees, it is true, have not cross-appealed from that part of the circuit court’s judgment upholding the validity of some of the minimum fines, but in a case of public interest we think it desirable to point out fatal defects in the ordinances that could be raised by any defendant in any prosecution under those enactments.
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Darrell Hickman, Justice.
Clarence Walton was charged with the rape and attempted capital murder of a mother of four who clerked in a twenty-four hour convenience store called the Jr. Food Mart in Marianna, Arkansas. He was convicted on both counts and sentenced to life imprisonment for the attempted murder, and fifty years and a $15,000 fine for the rape, the sentences to be served consecutively.
On appeal he argues that seven errors were committed. We find one of them meritorious. Sarah J. Hood, who ultimately served as foreman of the jury, was challenged for cause and the court should have sustained the challenge. Not doing so was prejudicial error which requires us to reverse the judgment and remand the cause for a new trial.
On May 29, 1981, at about 8:50 A.M., the victim, while working at the store, was violently assaulted and raped. Walton, eighteen, was charged with the offense. He is black and the victim is a white woman.
His first trial resulted in a mistrial because the jury was unable to reach a verdict. The jury impaneled for a second trial was ordered quashed by the trial court when it was challenged by Walton’s attorneys. That jury was selected by jury commissioners rather than by random selection using a jury wheel in accordance with Ark. Stat. Ann. § 39-205.1 (Supp. 1981). A total of forty-four jurors were examined, seventeen were excused by the court for various reasons, and the jury was selected only after individual voir dire examination in the judge’s chambers. The trial judge was careful in the formation of the jury which heard Walton’s case. But, even so, we are satisfied that the trial court abused its discretion in allowing Mrs. Hood to sit on this jury because the record reflects that Mrs. Hood was simply not candid with the court. There is no question that a proper motion to strike her for cause was made; all the appellant’s peremptory challenges had been exhausted.
Mrs. Hood is a teacher at a private school in Lee County. She brought her government class to the second day of Walton’s first trial and evidently was present during most of the day. We cannot be certain from the record exactly what she heard in the way of testimony, because she was somewhat vague about it and denied any knowledge of what actually transpired. She did say that she and her class had discussed the case, but explained that the discussion was mostly about the procedural aspects of the trial. Mrs. Hood had been a teacher of the deputy prosecuting attorney. She said she wanted to serve on the jury because she never had been a juror. No doubt this desire affected her answers to questions about her qualifications.
Mrs. Hood’s initial examination by the court reads:
BY THE COURT:
Q. Good morning, Mrs. Hood.
A. Good morning.
Q. Mrs. Hood, this is the case of the State of Arkansas against Clarence Walton. He is charged with rape and attempted capital murder. This is a criminal trial. The charge alleges that on or about May the 29th of last year that he committed these two offenses. The victim was _Mrs. Hood, do you know anything about this case?
A. I have no personal knowledge of the case, no, sir.
Q. Have you read anything about it in the local newspaper?
A. Yes, sir.
Q. From what you have read about it in the newspaper, have you formed any opinion about this case one way or the other?
A. No, sir, I have not.
Q. Have you heard anybody discuss the case where you work, or in your home, or throughout the community?
A. No, sir.
Q. Have you heard any talk about the case in the community at all? f
A. Just casual conversation.
Q. From the casual conversation that you may have heard about this case, have you formed any opinion, Mrs. Hood?
A. No, sir, I have not.
Q. Mrs. Hood, Clarence Walton is sitting at the table here this morning. Do you know Clarence Walton?
A. No, sir.
Q. As you sit here this morning, Mrs. Hood, do you have anything that is running through your mind that you think you ought to tell me or the lawyers that might in some fashion affect your ability to be a fair and impartial juror no matter what it is, legal, moral, or anything?
A. No, sir.
(Emphasis added.)
She was next examined at length by the prosecutor and she did not reveal that she had heard one day’s testimony in the first trial. She did not disclose this until she was examined by the defense attorney. Then, in response to a direct question, she answered that she had indeed been in the courtroom with her government class at Walton’s first trial and had listened to testimony for one full day. She obviously should have volunteered this information to the trial court when initially examined. The judge refused to strike her for cause, but the record reflects that the trial judge did not accurately remember her first answers because he did not think she had been evasive. The defense attorney said:
Your Honor, I believe, as the court inquired of Mrs. Hood, she indicated that she had not heard any testimony of the case other than possible talk; is that correct, when she first started talking?
The court replied:
I can’t honestly say. That is the forty-second juror we have questioned, and I have asked all of them if they know anything about the case, and she indicated she knew something and could set it aside. What her precise answers were, I do not know.
Clearly, the court did not recall that Mrs. Hood had been deceptive in her answers to the court’s questions. In our judgment her answers were not truthful and, in view of that, she should not have been allowed to sit on this jury. We do not imply that if a prospective juror is aware of testimony in a case he can never be allowed to sit as a juror. See Holland v. State, 260 Ark. 617, 542 S.W.2d 761 (1976). However, that is not the situation presented here. The case before us involves a prospective juror, who later served as foreman of the jury, who was not candid with the court. She knew a considerable amount about the case, or she certainly could have; she did or could have easily formed some opinions from hearing evidence at the first trial which could have influenced her judgment of the case. When examined closely about what she heard, all her answers were phrased to deny any knowledge that would disqualify her. She expressed a special desire to serve on the jury because she had always wanted to serve on a jury, had been a registered voter for at least twenty-one years, and never been called. She thought it would be quite an experience. Perhaps that desire affected her answers. But it was not until she was specifically asked whether she attended the first trial did she answer candidly. We cannot easily overlook this fact simply because she said she could set aside any conceptions, information or opinions she may have had. While a venireman is generally “impartial” when he states that he can put aside any preconceived opinions and give the accused the benefit of all doubts that the law requires, it is not an automatic cure-all for opinions, relationships or information that could disqualify one. Glover v. State, 248 Ark. 1260, 455 S.W.2d 670 (1970). Art. 2, § 10, ARK. CONST. See also Ark. Stat. Ann. §§ 43-1919, 43-1920. In Glover v. State, supra, we independently reviewed the voir dire examination and found it error to allow four jurors to be seated who said they could set aside opinions they held about the guilt of the defendant.
And in Swindler v. State, 264 Ark. 107, 569 S.W.2d 120 (1978) and Seed v. State, 271 Ark. 526, 609 S. W.2d 898 (1980), we found error in the court’s decision to allow jurors to serve who in our judgment could have been biased because of certain relationships. In both cases the jurors said they could put aside their personal feelings, or be objective. Some opinions and relationships cannot be overcome by a mere recitation by the prospective jurors that they will set aside objectionable factors. And we have reversed cases where a juror deliberately withheld information. Baysinger v. State, 261 Ark. 605, 550 S.W.2d 445 (1977); Bryant v. Brady, 244 Ark. 807, 427 S.W.2d 179 (1968).
We have said that statutes concerning qualifying a juror must be liberally construed to safeguard the guarantee of an impartial trial. “The polestar should be brighter and more clearly visible in a criminal case than in a civil one,” and “justice ought not only to be fair, but appear to be fair.” Beed v. State, supra. In view of Mrs. Hood’s answers we can only conclude she should not have been allowed to serve.
Other issues that we must discuss will be dealt with briefly. It is argued three other prospective jurors should have been excused for cause, but we need not examine that claim since they were excused peremptorily.
There was substantial evidence to support the finding that Walton was guilty of rape and attempted capital murder. The victim was brutally assaulted in the store, dragged a considerable distance, and beaten about the head and face; she was raped, and according to her testimony, she was strangled with a belt and survived only because the blood from her wounds made the belt slippery enough for 'her to remove it. She said that she knew the man who raped her, that he had been in the store several times to buy magazines. Walton only lived about 200 yards from the store, and was seen in the store close to the time of the rape by at least one witness. This was about 3:00 A.M.
The trial court’s ruling that the victim’s in-court identification of the defendant was admissible was not error. The trial court was careful to limit the State’s use of the identification evidence so that no prejudicial evidence would be admitted. No mention was to be made by the State of a lineup or identi-kit. (A picture made up of the assailant from her description by the State in its examination of the victim.) Actually the defense brought up both matters in its cross-examination. Immediately after the assault the victim talked to a policeman and generally described her assailant as about six feet tall, black, medium complexioned, with a beard and wearing khaki pants. The policeman said blood was coming out of her eyes. Her lower lip had been split almost to the chin exposing her teeth and gums. She had been choked and had massive bruises, abrasions and contusions. The day after her assault the victim was unable to identify the appellant as her assailant from a group of photographs. But there was testimony that her condition could have easily affected her judgment. Her eyes were virtually swollen shut and she was under medication. At the first physical lineup, held June 11, 1981, she could not identify the appellant until he turned sideways and at that point she did identify him as her assailant. She was positive. She testified positively that she had seen him because he often bought magazines which she described as “girly” magazines. She did say that she thought her assailant was thirty years old and as it turns out he was not nearly that age. But his photograph demonstrates why she could have been that far off on his age. One could easily be of the opinion that that person was well over eighteen. Her other descriptions of him were generally close to his physical appearance. Victims of violent crimes rarely give descriptions that later square in all respects with the physical characteristics of their assailants and that is understandable. Sometimes identification is unreliable, and for that very reason reliability is considered an important factor, and the trial court must decide if the identification is reliable enough to be considered by a jury. The trial court decided the victim’s identification was reliable and we cannot say that he abused his discretion. Kellensworth v. State, 278 Ark. 261, 644 S.W.2d 933 (1983).
The photographs taken of her immediately after the incident and used as evidence were certainly graphic proof of the vicious beating she suffered. But merely because photographs are inflammatory is not reason enough to exclude them. Cotton v. State, 276 Ark. 282, 634 S.W.2d 127 (1982). In this case the appellant was charged with attempting to kill the victim and the photographs were evidence of the viciousness of the attack, from which the jury could easily conclude that the assailant tried to kill her. Hulsey v. State, 261 Ark. 449, 549 S.W.2d 73 (1977).
The trial court denied a motion for change of venue. There were twenty affidavits filed by people who said they heard talk or knew the appellant could not get a fair trial in Lee County. Some of them were of the opinion that a black man accused of raping a white woman could not get a fair trial in Lee County. The State filed counter-affidavits by several people who said that in their judgment the appellant could get a fair trial. There was no evidence at all there was undue publicity in this case as there was in the case of Swindler v. State, supra. Nor does the voir dire record reveal that an undue number of j urors had to be stricken because of their knowledge of the case, or feelings about the case, as was the case in Ruiz v. State, 265 Ark. 875, 582 S.W.2d 915 (1979). We cannot say on the basis of this record that the trial court was wrong in denying the appellant a change of venue. This was an all white jury composed of two men and ten women. There was a general challenge to the panel as not being fairly representative of blacks and men. Both arguments are meritless. The State only used two of its peremptory challenges and, evidently, those were used on blacks. That, however, does not constitute error. Beed v. State, supra. A black person has no constitutional right to a jury that has one or more black people on it. Brown v. State, 239 Ark. 909, 395 S.W.2d 344 (1965), cert. denied 384 U.S. 1016 (1966); Conley v. State, 272 Ark. 33, 612 S.W.2d 722 (1981). Merely because no member of a party’s race is on a jury is not in itself cause to quash a jury. Lewis v. Pearson, 262 Ark. 350, 566 S.W.2d 661 (1977). Nor is it prejudicial in a rape case that women compose a substantial part of the jury. Urquhart v. State, 275 Ark. 486, 631 S.W.2d 304 (1982). The appellant had the burden of showing a systematic exclusion of black people, and failed to meet that burden. Beed v. State, supra.
Objection was made that the maintenance of the master jury list violated Ark. Stat. Ann. § 39-206 (Supp. 1981). The appellant’s argument is somewhat confusing. Evidently after the panel was chosen by random selection, using two numbers to select registered voters, a list of the panel was prepared. Then the list was cut up so that the names were on individual slips of paper; they were placed in a metal, three by five, file box. It was always in the custody of the clerk and locked in a vault at night. Defense counsel compared the slips with the master list and could show no discrepancy. He challenged the correctness of the procedure but where there is no prejudice shown, we find no error. Renton v. State, 274 Ark. 87, 622 S.W.2d 171 (1981).
On appeal, for the first time, it is argued that Walton’s conviction and sentence for both attempted capital murder and rape subjects him to double jeopardy and violates Ark. Stat. Ann. § 41-105. We agree that the statute does prohibit such sentences. Rowe v. State, 271 Ark. 20, 627 S.W.2d 16 (1982); Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981). On retrial the trial court will no doubt see that these decisions are followed in the event the appellant is found guilty of both charges as he was in this case.
Reversed and remanded.
Adkisson, C.J., dissents. | [
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Per Curiam.
We deny movant permission to file an amicus curiae brief. Last week we denied a similar motion. These rulings represent a slight shift in the practice of this Court and, for the benefit of the bar, we issue this per curiam opinion.
The term “amicus curiae” is old Latin which literally means “a friend of the court.” 3A C.J.S. Amicus Curiae % 2 (1973). Historically, courts welcomed the aid of an amicus since “it is for the honor of a court of j ustice to avoid error. ’ ’ The Protector v. Geering, Hardees 85-86 (1656) 145 E.R. 394 (Ex.); see Note, Amici Curiae, 34 Harv. L. Rev. 773 n. 5 (1921). While the name has remained static, the undertaking of the amicus has changed from that of an impartial friend of the court to that of an acknowledged adversary. The transition has been discussed in three excellent law review articles. Krislov, The Amicus Curiae Brief: From Friendship to Advocacy, 72 Yale L. J. 694 (1963); Wiener, The Supreme Court’s New Rules, 68 Harv. L. Rev. 20 (1954); Harper and Etherington, Lobbyists Before the Court, 101 U. Pa. L. Rev. 1172 (1953). Krislov, in discussing the transition, states:
The Supreme Court of the United States makes no pretense of such disinterestedness on the part of “its friends.” The amicus is treated as a potential litigant in future cases, as an ally of one of the parties, or as the representative of an interest not otherwise represented. At this level the transition is complete; at the other court levels it is in process. Thus the institution of the amicus curiae brief has moved from neutrality to partisanship, from friendship to advocacy. [Footnote omitted.]
72 Yale L. J. at 704.
The consequences of the shift have been dramatic. A form of judicial lobbying is now regularly practiced by the United States Department of Justice as well as various other groups, particularly minority groups. As stated by Krislov:
Such briefs reached an apex of notoriety and criticism during the last half of the forties and the early fifties. A previous rise in the number of filings was a major factor in this criticism. In a classic instance, Lawson v. United States, [176 F.2d 49 (D.C. Cir. 1949), cert. denied, 339 U.S. 934 (1950)] the problem of the Hollywood “unfriendly ten” evoked attention through amicus curiae briefs from forty organizations. Left-wing groups were both aggressive and open in their efforts to exploit the increased significance of this avenue to interest participation. The National Lawyers Guild, for example, both was and is a major filer of amicus curiae briefs. The relation of the amicus brief to standard pressure group tactics has been made even more overt. Thus, the Communist Daily Worker has called upon individuals to file “personal” amicus curiae briefs by writing letters directly to the Justices. Clearly, amicus briefs are merely the most formal of a number of lobbying tactics which includeother devices such as the picketing utilized during the trial of Communist Party leaders under the Smith Act in New York City. Similarly in 1953, petitions were circulated by the National Committee to Secure Justice in the Rosenberg Case. A campaign of telegrams was part of the effort to save the life of Willie McGee, who had been sentenced to death in Mississippi. Mr. Justice Black, who had been generally sympathetic to interest group expression, found this a repugnant development and condemned the “growing practice of sending telegrams to judges in order to have cases decided by pressure.” He refused to read them and noted that “counsel in this case has assured me they were not responsible for these telegrams.”
The lack of discreetness here — the ignoring of the traditions and practices of the judicial process — has even been demonstrated by attorneys. Wiener characterizes a brief in Girouard v. United States as purposely ignoring in its preoccupation with propaganda the decisive issue on which the case turned. Similarly, the American Newspaper Publishers brief in Craig v. Harney [331 U.S. 367, 397 (1947)] evoked from Mr. Justice Jackson a strong response indicating that he thought its emphasis on the size and power of the constituent newspapers was neither of legal significance nor an accident but simply intimidation. (In fairness, it should be noted that size and distribution of membership are relevant to any showing of interest in an instant case and even amicus curiae briefs are expected to represent a specified rather than a diffuse interest.) [Footnotes omitted.]
Id. at 710-11.
Perhaps an even more dramatic consequence of the change is the change in the attitude of the court that appoints an amicus to actively seek implementation of a decree. This consequence is described by Krislov as follows:
Indeed “friendship” at this point becomes a peculiar form of advocacy. The amicus becomes the spokesman for court interests in a vital and active sense. This is well borne out in the recent cases involving desegregation. The Supreme Court’s device of delegating to the district courts the implementation of its desegregation decision has thrust upon the district courts an unusual burden of decision and activity. Where defiance has occurred, the courts have been particularly dependent upon the activities of the executive and have acknowledged this dependency.
So in both the Little Rock, Arkansas, and the University of Mississippi integration crises the federal district court, on its own initiative, designated the United States Attorney General and The United States Attorney as amici and specifically instructed its designated amici to carry out activities on behalf of the court. On September 9, 1957, in order to enforce its prior determinations the district court in Arkansas invited the Attorney General of the United States and the United States Attorney to
come into the case as [amici] curiae and to commence injunction proceedings against the Governor and his subordinates “to prevent the existing interferences with and obstructions to the carrying out of the orders heretofore entered by this Court in this case.” [Aaron v. Cooper, 163 F. Supp. 13, 16 (E.D. Ark. 1958)].
On appeal to the Court of Appeals for the Eighth Circuit, the case was styled Faubus v. United States (amicus curiae) [254 F.2d 797 (8th Cir. 1958)]. Among other claims, the attorneys for Governor Faubus argued that the United States had no standing to file such a petition for injunctive relief and that the court had erred in giving the United States such powers. The court of appeals, however, found that this was in accordance with past procedure and that it was “proper for the court to do all that reasonably and lawfully could be done to protect and effectuate its orders and judgments.” The district court had acted properly in asking the law officers of the United States to act on its behalf for it “could not with propriety employ private counsel to do the necessary investigative and legal work. It has, we think, always in the past been customary for a federal district court to call upon the law officers of the United States for aid and advice in comparable situations.”
There was no need to go into the legal theory too thoroughly, the court of appeals pointed out, inasmuch as the plaintiffs in the Aaron case were still real parties in interest and had joined the government in requesting this injunction. Nonetheless, the court of appeals emphatically upheld the authority both of the court and its amici:
In our opinion the status of the attorney general and the United States attorney was something more than that of mere amici curiae in private litigation. They were acting under the authority and direction of the court to take such action as was necessary to prevent its orders and judgments from being frustrated and to represent the public interest in the due administration of justice. [Footnotes omitted.]
Id. at 718-19.
In Arkansas, this Court for many years has authorized attorneys to come into cases as amicus curiae. Although we have consistently limited their briefs to the facts proven at trial and the points raised by the parties on appeal, Mears v. Little Rock School District, 268 Ark. 30, 593 S.W.2d 42 (1980), we have traditionally welcomed these briefs for there is always the possibility that an amicus brief will have legal significance. For example, in a recent case we received 20 highly partisan amici briefs from the financial community. McInnis v. Cooper Communities, Inc., 271 Ark. 503, 611 S.W.2d 767 (1981). At the most, two of the briefs had legal significance, while the rest were simply endorsements of the briefs filed by the parties and added nothing to the arguments except the supposed political prestige of the group making the endorsement. To knowingly allow such briefs is to invite a charge of political pressure and, in addition, waste our time.
In the federal court system there appears to be a new trend to question the filing of amici briefs, especially at the district court level. New England Patriots Football Club, Inc. v. University of Colorado, 592 F.2d 1196 (1st Cir. 1979); Strasser v. Doorley, 432 F.2d 567 (1st Cir. 1970); Leigh v. Engle, 535 F. Supp. 418 (E.D. Ill. 1982). We share in questioning the filing of amici briefs in one circumstance and, henceforth, we will deny permission to file a brief when the purpose is nothing more than to make a political endorsement of the basic brief.
The obvious difficulty with this approach is that we normally wade through the entire brief before we can know whether it serves a valid purpose. However, Rule 19 (a) requires the movant seeking permission to file as an amicus to show why such a brief is “thought to be necessary.”
On the motion now before us the movant states:
1. Mr. Jackson is a resident and a registered voter of West Memphis, Arkansas.
2. Mr. Jackson voted in the mayoral election held on November 2, 1982.
3. It is Mr. Jackson’s good faith belief that the mayoral election was held in a fair manner and .that Leo Chitman is the duly authorized Mayor of West Memphis.
4. Mr. Jackson believes that to not retain Leo Chit-man as Mayor of West Memphis would be detrimental to minority and low income persons in the state and to their belief in the political process.
5. As a citizen of West Memphis, Mr. Jackson would like to have further input into retaining Leo Chitman as Mayor of West Memphis by filing this brief.
In this particular motion for permission to file an amicus curiae brief it is obvious that the movant anticipates discussing nothing of legal significance. The proposed amicus brief would be solely for the purpose of judicial lobbying. Therefore we deny permission to file the brief. | [
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Per Curiam.
The petitioner, Harold Henderson, asks the court to reconsider his motion to have the Attorney General print his pro se brief. This court has twice denied the same motion on June 17, 1991, and again on October 14, 1991.
This is a civil case and Henderson has not made the requisite showing that his suit has merit. See Glick v. Lockhart, 218 Ark. 417, 706 S.W.2d 178 (1986).
The appellant continues to file pleadings in this court concerning the printing of his pro se brief, which are without merit and which are burdensome to the administrative affairs of the court. The clerk is therefore directed to dismiss this motion for reconsideration and to accept no further filings by Harold Henderson in this regard.
It is so ordered. | [
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Robert H. Dudley,
Justice. In 1982, the appellant was found guilty of first degree murder and sentenced to life imprisonment. We affirmed. Mackey v. State, 279 Ark. 307, 651 S.W.2d 82 (1983). In 1985, the appellant filed a petition in this court to proceed for post-conviction relief under A.R.Cr.P. Rule 37. We denied the petition. Mackey v. State, 286 Ark. 189, 690 S.W.2d 353 (1985). In 1991, the appellant, who remains in the penitentiary, filed a petition in the Circuit Court of Garland County for a writ of habeas corpus alleging that A. L. Lockhart, the Director of the Department of Correction, was unlawfully detaining him. The summons reflected that Lockhart was in Pine Bluff, which is in Jefferson County. The Circuit Court of Garland County had jurisdiction to determine whether the writ should be issued, State Department of Public Welfare v. Lipe, 257 Ark. 1015, 521 S.W.2d 526 (1975), although it did not have jurisdiction to determine whether the prisoner, who is in another county, should be released. Johnson v. McClure, 228 Ark. 1081, 312 S.W.2d 347 (1958). The Circuit Court of Garland County refused to issue the writ of habeas corpus. We affirm.
A habeas corpus proceeding does not afford a prisoner an opportunity to retry his case. A writ of habeas corpus will not be issued to correct errors or irregularities that occurred at trial. The remedy in such a case is direct appeal. Birchett v. State, 303 Ark. 220, 795 S.W.2d 53 (1990). A writ of habeas corpus will not be issued as a substitute for post-conviction relief. Rather, the writ of habeas corpus will be issued only when the commitment is invalid on its face or the committing court lacked jurisdiction. Wallace v. Willock, 301 Ark. 69, 781 S.W.2d 478 (1989). The petitioner must plead either the facial invalidity or the lack of jurisdiction and make a “showing, by affidavit or other evidence, [of] probable cause to believe” he is so detained. Ark. Code Ann. § 16-112-103 (1987). A hearing is not required if the petition does not allege either of the bases of relief proper in a habeas proceeding, George v. State, 285 Ark. 84, 685 S.W.2d 141 (1985), and, even if a cognizable claim is made, the writ does not have to be issued unless probable cause is shown. Ark. Code Ann. § 16-112-103 (1987).
The petition in this case stated (1) that the court that convicted him of murder, the Circuit Court of Garland County, did not have jurisdiction of the case because there was no proof that the murder occurred in Garland County; (2) that he had not been charged with first degree murder, the crime of which he was convicted; (3) that petitioner’s due process rights were violated because he was convicted based on certain hearsay testimony; (4) that a violation of petitioner’s right to secure witnesses had occurred at the trial; and (5) that petitioner had been illegally arrested. The appellant caused a summons to be issued, but never caused it to be served on appellee Lockhart. Instead, the Attorney General entered Lockhart’s appearance and contested the issuance of the writ. Both parties attached exhibits to their pleadings. See Ark. Code Ann. § 16-112-103 (1987).
Here, only one of the allegations provides a cognizable basis for a writ of habeas corpus, and that is the allegation the Circuit Court of Garland County lacked jurisdiction to try the appellant. The core of this allegation is that the scientific evidence gathered during the police investigation was inconclusive about where the murder occurred.
“The State is not required to prove jurisdiction or venue unless evidence is admitted that affirmatively shows that the court lacks jurisdiction or venue.” Ark. Code Ann. § 5-1-111(b) (1987). The State is thus presumed to have jurisdiction. See Holt v. State, 281 Ark. 210, 662 S.W.2d 822 (1984). Further, the State attached as an exhibit to its response eyewitness testimony from the original trial that affirmatively proved the murder occurred in Garland County. The appellant offered no countervailing affidavit or exhibit. Thus, the trial court correctly held that there was no reasonable basis to question the trial court’s exercise of jurisdiction in appellant’s trial for murder.
Finally, the appellant argues that pursuant to Coplen v. State, 298 Ark. 272, 766 S.W.2d 612 (1989) and George v. State, 285 Ark. 84, 685 S.W.2d 141 (1985), he was entitled to a hearing because he stated a cognizable claim for relief. Neither case sustains appellant’s argument. In George we wrote: “While our statutory habeas corpus scheme contemplates a hearing in the event a writ is issued, we find nothing requiring a hearing be given any petitioner regardless of the content of the petition.” 285 Ark. at 84, 685 S.W.2d at 142 (emphasis added). In Coplen, supra, we denied relief and cited George v. State, supra.
Affirmed. | [
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Robert L. Brown, Justice.
This case concerns the assets of the decedent, Hiawatha Daniel, and specifically the claims of the appellant, Emma Gwendolyn Wright, against those assets. Hi Daniel and Gwen Wright were sisters; both were the daughters of Julia Daniel. The various claims of Gwen Wright were heard during a two-day trial, and the chancellor decided all claims in favor of the estate. We affirm the chancellor’s judgment.
Gwen Wright also appeals on the issue of the estate’s liability for estate and inheritance taxes, and she is joined in this appeal by her sons, Daniel Wright and Preston Wright. Union National Bank filed a notice of cross appeal against the sons, but as cross appellant, the Bank has failed to file a brief or abstract. We, therefore, dismiss the cross appeal pursuant to Rule 10 of our Supreme Court Rules.
In 1975 Julia Daniel suffered a stroke and was virtually incapacitated until her death in 1982. After her stroke, Hi Daniel, who was not married, moved in with her mother and cared for her. Also, following the stroke, Hi Daniel and Gwen Wright established several joint banking accounts with right of survivorship. Upon her death, Julia Daniel left all of her property to Hi Daniel with the exception of $ 10 which she bequeathed to Gwen Wright. Funds from Julia Daniel’s estate were deposited into the joint banking accounts, and the interest from the accounts was used to purchase bonds and treasury notes. Income from these investments was then paid into a household account for Hi Daniel’s personal expenses. Hi Daniel made all of the deposits and withdrawals from these joint accounts.
The sisters also kept a safety deposit box in jointy tenancy in which they placed registered and bearer bonds with interest coupons as well as other securities and items of personal property. On an annual basis the sisters would meet and clip the interest coupons from the bonds and prepare the deposit slips. Subsequently, Hi Daniel would deposit the interest into her household account.
Hi Daniel died on September 6, 1988, and left assets consisting of registered bonds, treasury notes, other securities, and jewelry. The joint bank accounts totalling over $200,000 passed to Gwen Wright by right of survivorship and are not at issue in this appeal. Prior to her death, the sisters had kept bearer bonds valued at approximately $238,000 in their safety deposit box. The interest coupons all went to . Hi Daniel during her lifetime. She had in her possession at time of death the coupons for all of calendar year 1988. Gwen Wright argues, however, that early in 198 8, Hi Daniel gave the bearer bonds to her. The validity of that gift is one of the issues of appeal.
After Hi Daniel’s death, Preston Wright removed the registered bonds which were in Gwen Wright’s name from the joint safety deposit box and testified that no bearer bonds were in the box. Because Gwen Wright had the bearer bonds and the registered bonds in her possession, the appellee executor filed suit to determine title to that property. Gwen Wright counterclaimed that the bearer bonds had been given to her by the decedent and further that Hi Daniel had held the other property, including registered bonds, treasury notes, jewelry, and other securities, in constructive trust for Gwen Wright’s benefit. The executor also asked the chancellor to assess the proportionate share of each distributee for estate and gift taxes. The chancellor decided all issues in favor of the executor.
I. BEARER BONDS
For her first point for reversal, Gwen Wright argues that the chancellor erred in finding that Hi Daniel did not consummate a gift to her of the bearer bonds prior to her death in 1988. Specifically, Wright contends that Daniel made a valid inter vivos gift when she delivered the bonds to her early inl988and retained only the interest coupons for 1988.
Our law is clear that in order for an inter vivos gift to transpire it must be proven by clear and convincing evidence that (1) the donor was of sound mind; (2) an actual delivery of the property took place; (3) the donor clearly intended to make an immediate, present, and final gift; (4) the donor unconditionally released all future dominion and control over the property; and (5) the donee accepted the gift. See Phipps v. Wilson, 251 Ark. 377, 472 S.W.2d 929 (1971).
In Phipps a gift of bonds was also in dispute. The alleged donor exercised control over the bonds by accepting interest payments after placing the bonds in custody for the benefit of the alleged donee. We held that drawing interest payments exhibited failure to release all future dominion and control over the property.
Here, Wright testified that actual delivery occurred. She also testified that Daniel told her to keep the bonds and said, “They are yours; hang on to them.” Nevertheless, Daniel continued to receive interest on the bonds until her death and even projected future income from the bonds in her journal. She also continued to reflect the bonds in her inventory of municipal bonds after the purported gift. There is, too, Wright’s own testimony that Daniel may well have brought the bonds to her because she was on crutches at the time and her possession of the bonds would enable them to meet at her home and clip the interest coupons.
As in Phipps v. Wilson, the facts here do not evidence a clear intent on the part of Daniel to give up all future dominion and control over the bonds. We affirm the chancellor’s decision.
II. CONSTRUCTIVE TRUST
Wright next argues that an oral agreement existed between her sister and herself to the effect that virtually all of Daniel’s estate, including the bearer and registered bonds, and other treasury notes and securities registered in Daniel’s name would go to Wright or to her children upon Daniel’s death. A constructive trust impressed on the estate’s assets for the benefit of Wright was, therefore, warranted, according to Wright. To justify that constructive trust, Wright points to a confidential relationship which she maintains existed between the two sisters in later years.
A constructive trust is a creature of equity designed to prevent unjust enrichment, and it is implied from the circumstances of the case when the beneficial interest should not go with legal title to the property. See Mitchell v. Mitchell, 28 Ark. App. 295, 773 S.W.2d 853 (1989). Simply because parties are related or live in the same household does not alone establish a confidential relationship. See Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981). However, although a family relationship by itself is not sufficient to establish a constructive trust, in the absence of estrangement or other circumstances contradicting confidentiality, a confidential relationship may be established by showing a close relationship between a mother and father and a brother and sister. See Beeson v. Beeson, 11 Ark. App. 79, 667 S.W.2d 368 (1984). Fraud or a confidential relationship is necessary to prove a constructive trust, and it must be proven by clear, cogent, and convincing evidence. See Bottenfield v. Wood and Miller, 264 Ark. 505, 573 S.W.2d 307 (1978). The burden of proving it is on the proponent of the constructive trust. See Walker v. Waller, 15 Ark. App. 336, 693 S.W.2d 61 (1985).
The chancellor found that Wright had not met her burden of proof, and we agree. There was ample testimony presented at trial to evidence that some, if not considerable, rancor had existed between the two women at one time and perhaps even continued up to Daniel’s death. Wright was admittedly angered by her mother’s leaving her estate, to Daniel and mentioning her only in the context of a $10 bequest. There was also testimony about Wright’s suspicions that Daniel was diverting her mother’s funds for her benefit during her mother’s lifetime. Though varying testimony was admitted suggesting that Wright had entered into an agreement with Daniel regarding the disposition of Daniel’s estate at various times, the testimony was unclear. At one point it was contradicted by Wright, who stated that there was no agreement that Wright would forego a lawsuit against Daniel regarding their mother’s estate in exchange for a promise that Daniel would leaver her estate to Wright and her children.
It is axiomatic that the trier of fact, in this case the chancellor, determines the credibility of the witnesses. See McKiever v. McKiever, 305 Ark. 321, 808 S.W.2d 328 (1991). In the case before us the chancellor obviously believed the executor’s witnesses or, alternatively, did not believe the appellant or her witnesses. We cannot say that the decision was in error.
III. SAFETY DEPOSIT BOX
Wright also contends that part of the contents of the safety deposit box should have passed to her by right of survivor-ship, because the box was held in the names of both sisters and Wright’s daughter with surviroship rights. At issue here are various securities, including registered bonds in Daniel’s name, and jewelry found in the box. We have previously held that mere survivorship rights in the box itself is not sufficient to pass title to the contents absent an affirmative showing in writing to evidence that fact. See Newton County v. Davison, 289 Ark. 109, 709 S.W.2d 810 (1986); see also Kulbeth v. Purdom, 305 Ark. 19, 805 S.W.2d 622 (1991).
The appellants contest a retroactive application of Davison since the box was acquired in 1982 at the time of Julia Daniel’s death. Hi Daniels, death, however, occurred in 1988, which is the time when either survivorship rights would automatically vest or Wright’s cause of action would accrue. Since Davison was decided before this time, the appellant’s argument is without merit.
IV. ESTATE TAXES
The appellants, who are joined by appellants Preston Wright and Daniel Wright on this one issue, argue that the estate’s residue should be used to pay estate and gift taxes and that pro rata shares from the distribution should not be claimed under Ark. Code Ann. § 26-59-115 (1987). The precise language in the will reads:
I direct that all just and legal claims against my estate, including federal and state estate and inheritance taxes, be paid as promptly as practicable after my death.
The chancellor found that a clear direction that the taxes be paid from the residue of the estate and not proportionately by the distributees was lacking. We agree. The will only directs that the taxes be paid promptly and does not direct that the taxes be paid from the estate’s residue. To infer that the testatrix intended that the taxes be paid from the residue of the estate and not be spread proportionately among the distributees would be speculation on our part. The intent to shift the burden of taxation must clearly appear in the will, otherwise, state law will control. See, e.g., Ferrone v. Soffes, 558 So.2d 146 (Fla. App. 3 Dist. 1990). Here § 26-59-115 requires proportionate allocation among the distributees in the absence of a clear direction from the testatrix that the taxes be paid from the estate’s residue. We affirm the chancellor on this point.
V. BIAS
For her last argument, Wright advances a bias theory on the basis that the chancellor considered testimony from a separate trial relating to Wright’s sons in deciding Wright’s case. There is no evidence to support this claim, and the chancellor stated that the testimony in the sons’ real estate case was separate from Wright’s case. We hold that this claim is meritless.
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David Newbern, Justice.
The appellant, Galatia [Illinois] Community State Bank, honored a check for $5,550.00 which was the amount imprinted by a check writing machine in the center, underline section of the check commonly used for stating the amount in words. The imprint looks like this:
RegistereD
No. 497345 **5550 DOL’S 00 CTS
The impression made by the checkwriting machine can be felt on the front and the back of the check, and “**5550 DOL’S 00 CTS” is imprinted in red ink. In the box on the right hand side of the check commonly used for numbers “6,550.00” appears in handwriting, but the 6 has been altered by hand so the amount reads “5550.00.” Galatia Bank sued the appellee, Eugene Kindy, who was the drawer of the check after it had been dishonored. We must decide whether Galatia Bank was a holder in due course and thus entitled to recover despite the failure of consideration defense Kindy has against the payee.
The Trial Court held that, because a Galatia Bank employee changed the “6” in the handwritten portion to a “5,” the Bank did not take the check in “good faith” and thus was not a holder in due course. We hold Galatia Bank was a holder in due course because it was entitled to rely on the imprinted center underline section of the check, and the “alteration” which reconciled the terms was not a sufficient basis to hold that Galatia Bank acted in other than good faith.
Kindy buys and sells diesel engine parts. He agreed to buy four diesel engines from Tony Hicks who was to deliver them. The purchase price was $ 13,000. Kindy agreed to wire transfer $6500 and pay the remainder by check. Kindy testified he and Hicks agreed the check would not be cashed until the motors were delivered to an address in Canada.
Kindy wired the $6500 in late June of 1989, and concurrently wrote and mailed the check which was postdated July 6, 1989. Kindy placed two different amounts on the check because he did not want the check to be honored until Hicks delivered the engines. Kindy testified he thought if he made the check out with the two different amounts a bank would either call him to find out if it was good, or at least notify him before honoring it. He felt he could protect himself in that manner.
Hicks presented the check to the Galatia Bank on July 10, 1989. He received $800 in cash and credit to his account for $4,750. To reach the factual conclusion that a Galatia Bank employee had altered the check, the Court first determined that the party filling out the accompanying deposit slip originally wrote 6550.00, crossed out that amount, changed it to 5550.00, and initialed the change. Those initials on the deposit slip were not the initials of Tony Hicks. The change was presumed to be the work of a Galatia Bank employee based on the particular steps taken in changing the slip. The Court found a difference between the handwriting on the deposit slip and Hicks’ endorsement on the back of the check. From this evidence, the Court inferred a Galatia Bank employee filled out the deposit slip. The Court then found the handwriting on the deposit slip similar to the “5” which had been written over the “6.” It was thus concluded that a Bank employee had made the alteration.
Galatia Bank sent the check through the Federal Reserve System for collection, and it was presented to First National Bank of Siloam Springs/Gentry for final payment. Kindy had previously told First National Bank to call him when the check was presented so he could determine whether Hicks had delivered the engines. First National Bank called Kindy when the check was presented, and Kindy said not to pay the check because the engines had not been delivered.
The check was returned to Galatia Bank on July 18th. Galatia Bank again presented the check to First National Bank, but the check was again returned as Kindy had placed a stop payment order. Galatia Bank sued for $4753.64, the amount it lost as the result of Hicks drawing down the account in which the check had been deposited.
The Trial Court reviewed Ark. Code Ann. § 4-3-118(b) and (c) (1987) which has since been superseded by Ark. Code Ann. § 4-3-114 (Supp. 1991) but which was in effect at the time in question in this case. The statute provided in relevant part:
4-3-118. Ambiguous terms and rules of construction.
The following rules apply to every instrument:
(b) Handwritten terms control typewritten and printed terms, and typewritten control printed.
(c) Words control figures except that if the words are ambiguous figures control.
In its opinion the Trial Court found the statute not to be helpful as the two subsections as applied in this case were contradictory. That conclusion was not crucial, however, to the Court’s ultimate holding that the Galatia Bank acted other than in good faith and thus did not meet the requirement of Ark. Code Ann. § 4-3-302(b) (1987), now found at Ark. Code Ann. § 4-3-302(a)(2)(ii) (Supp. 1991).
Holder in due course
1. Good faith
If Galatia Bank had made a “fraudulent and material” alteration of the check without Kindy’s assent, no doubt Kindy’s liability on the instrument would have been discharged. Ark. Code Ann. § 4-3-407(2)(a) (1987). The new Code provision is slightly different. See Ark. Code Ann. § 4-3-407 (Supp. 1991). The Trial Court found specifically that the alteration was not done “fraudulently,” and refused to hold Kindy was discharged .That finding was correct. See Winkle v. Grand National Bank, 267 Ark. 123, 601 S.W.2d 559 (1980); Shinn v. First Nat’l Bank of Hope, 270 Ark. 774, 606 S.W.2d 154 (Ark. App. 1980). The Court held, rather, that Galatia Bank was not a holder in due course because it did not take the check in “good faith.”
“Good faith” is defined at Ark. Code Ann. § 4-1-201(19) (1987 and Supp. 1991) as “honesty in fact in the conduct or transaction concerned.” While we have referred to the “good faith” requirement found in § 4-3-402(l)(a) (1987), Richardson v. Girner, 282 Ark. 302, 668 S.W.2d 523 (1984), it has not, so far as we know, been the basis of a holding by this Court. Professors White and Summers write that the good faith requirement is closely related to the requirement of Ark. Code Ann. § 4-3-302(c) (1987) that the holder not have “notice that it [the instrument] is overdue or has been dishonored or of any defense against or claim to it on the part of any person.” 1 J. White and R. Summers, Uniform Commercial Code (3rd ed. 1988). The authors point out that there is a difference between the two requirements, and suggest that the good faith should be a subjective one as was intended by the drafters of the Code.
We cannot agree with the Trial Court’s conclusion that Galatia Bank was not acting in good faith. There is neither evidence nor legitimate speculation that Galatia Bank or the employee was found to have performed the alternation intended harm to any party. As will be discussed below, it was proper for Galatia Bank to accept the check as being in the amount of $5,550, and the alternation did no more than cause the instrument to recite that amount uniformly. There was no evidence before the Court to suggest that the change was done other than with “honesty in fact in the . . . transaction concerned.”
2. Notice
The frustration expressed by the Trial Court with respect to § 4-3-118 (1987) which stated the applicable rules of construction for negotiable instruments is understandable. The statute says words control figures unless the words are ambiguous, and handwritten terms control typewritten and printed terms, and typewritten control printed. The question here is not so much whether the check should have been honored for the amount expressed by the checkwriting machine or in the handwritten numerals. Rather, having decided the alteration of the check did not cause Galatia Bank to take the check in other than good faith, the remaining question is whether notice of the inconsistency destroyed Galatia Bank’s standing as a holder in due course.
The 5550.00 amount imprinted by the checkwriting machine upon the line customarily used for words is expressed in figures and not in words. One question is whether imprinted numbers located where words are customarily placed on a check control figures placed where figures are customarily placed. Another question is whether handwritten figures control printing.
We find both question satisfactorily answered in St. Paul Fire & Marine Ins. Co. v. State Bank of Salem, 412 N.E2d 103 (Ind. App. 1980). In that case, there was a conflict between an amount imprinted by a check imprinting machine and numbers expressed in typewritten figures. The Court recognized the imprinted amount was not expressed in words, but held “the purposes of the U.C.C. are best served by considering an amount imprinted by a checkwriting machine as ‘words’ for the purpose of resolving an ambiguity between that amount and an amount entered upon the line usually used to express the amount in figures.” The Court quoted from a pre-U.C.C. case, United States Fidelity and Guaranty Company v. First National Bank of South Carolina of Columbia, 244 S.C. 436, 137 S.E.2d 582 (1964), as follows:
A prime purpose, as we see it, of making a sum payable when expressed in words controlling over the sum payable expressed in figures is the very fact that words are much more difficult to alter. The perforated imprinting by a check-writing machine, while expressing the sum payable in figures, is even more difficult to successfully alter than a sum payable in written words.
Because a check imprinting machine’s purpose is to protect against alterations, the amount shown on the imprint should control whether the number is in words or figures. Hawkland & Lawrence U.C.C. Series § 3-118:06 (Art. 3) (1984).
Turning to the question whether typewriting controls printing, the Indiana Court stated:
As the section makes clear, in the event of an ambiguity between printed terms and typewritten terms, the latter would control. We do not consider the impression made by the check imprinter to be “printed” terms under this section. Accord, United States Fidelity and Guaranty Company v. First National Bank of South Carolina of Columbia, (1964) 244 S.C. 436, 137 S.E.2d 582, 589 (1964).
A conflict between the two amounts on a check would be resolved by § 3-118(c) which states that words control figures. Arguably, the amount imprinted by the checkwriting machine upon the line customarily expressing the amount in words, is expressed in figures. . . . We think, however, that the purposes of the U.C.C. are best served by considering an amount imprinted by a checkwriting machine as “words” for the purpose of resolving an ambiguity between that amount and an amount entered upon the line usually sued to express the amount in figures.
Although the Court did not say specifically that it regarded the portion written by the checkwriting machine as the equivalent of handwriting, that is the clear effect of the decision.
In U.S. v. Hibernia Nat. Bank, 841 F.2d 592 (5th Cir. 1988), a typed numerical amount was located in the place customarily used for words. This amount conflicted with the amount located in the place customarily used for figures. The Court found the typed amount controlling despite the fact it was not expressed in words.
As Professor Hawkland has written:
A purchaser does not obtain notice of a claim or defense solely because there is a conflict among handwritten, printed and typewritten terms. Although a purchaser might question whether some irregularity has occurred, the premise of section 3-118 seems to be that any conflict is a mere mistake and therefore should be ignored. [W. Hawkland & L. Lawrence, U.C.C. Series § 3-118:05 (Art. 3) (1984).]
Given these authorities, we conclude Galatia Bank was a holder in due course with respect to the check and should be allowed to recover against Kindy. Therefore, we reverse and remand for entry of a judgment consistent with this opinion.
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Steele Hays, Justice.
Ernest L. Huffman died testate on November 6,1987, survived by five children. His spouse and one child predeceased him. Another child, Betty Jane Mantooth, survived but died on June 20, 1988. The bulk of Ernest L. Huffman’s estate was disposed of pursuant to a revocable trust to be distributed by the trustee upon the settlor’s death, in equal shares to the settlor’s children “or the lawful descendents of one who may be then deceased.”
A controversy developed between the children of Betty Jane Mantooth and her surviving spouse, Cledith Mantooth and in October 1988, the trustee petitioned the Chancery Court of Benton County for a declaratory judgment to construe the trust provision and determine whether the distributive share of Betty Jane Mantooth should be paid to Cledith Mantooth, the executor of her estate and only beneficiary under her will, or to her lawful descendants: Deborah Warren, David Mantooth, Pamela Sue Kindiger and Ernest Mantooth, all of whom were named as respondents in the suit for declaratory judgment.
On November 7, 1989, an Order of Declaratory Judgment was signed by the chancellor authorizing the distribution of the share of Betty Jane Mantooth to Cledith Mantooth “of the total assets of the trust from funds received from the estate of Ernest L. Huffman,' deceased, whether or not actually delivered to the trustee from the said estate prior to the death of Betty Jane Mantooth.” The order further ordered the distribution “of all income prior or earned subsequent to the death of Betty Jane Mantooth not previously distributed” to Deborah Warren, David Mantooth, Pamela Sue Kindiger and Ernest Mantooth.
No appeal was taken from the order of declaratory judgment. On January 21,1991, Pamela Sue Kindiger filed a Motion For Correction of Order alleging that due to “errors in said Order For Declaratory Judgment arising from oversight or omission” the trustee is unable to make a determination as to the correct distribution.
No testimony was taken on the motion and on April 16, 1991, the chancellor, citing Ark. R. Civ. P. 60(a), entered an amended order altering the provision for distribution of “all income prior or earned subsequent to the death of Betty Jane Mantooth not previously distributed” to read, “all income earned subsequent to the death of Betty Jane Mantooth “as earned on trust corpus not previously distributed after June 20,1988.” Thus under the order the remaining funds identified as income accruing after June 20, 1988, were distributed in equal shares to the four children of Betty Jane Mantooth. Pamela Sue Kindiger filed a timely Notice of Appeal from the amended order.
Rule 60(a) deals with clerical mistakes arising from oversight or omission and provides that such mistakes may be corrected by the court at any time. Unquestionably, either party aggrieved by such correction may bring a timely appeal, but the appeal is not from the original order, or judgment, but from the order purporting to correct it. 9 J. Moore, Moore’s Federal Practice § 110.14 [2].
In this case, none of appellant’s arguments concern the distribution of income accruing either before or after the death of Betty Jane Mantooth. Appellant’s three points of error are directed toward the Order of Declaratory Judgment entered some eighteen months earlier: One, the court erred in finding that Betty Jane Mantooth had a vested or assignable interest in an undivided share of the trust assets; two, the court erred in finding that Betty Jane Mantooth had a power of appointment over an undivided share of the trust property; three, the court erred in failing to find that the spendthrift clause of the trust precluded the transfer of Betty Jane Mantooth’s interest in the trust by will or otherwise. Each of these points of error involves the order of November 8, 1989, and has no validity after the time for appeal has expired.
Since no brief has been filed by appellees there is no challenge to the timeliness of this appeal. Even so, we have held many times that the jurisdiction of this Court to consider an appeal is a matter we will address on our own. Arkansas Savings and Loan Association v. Corning Savings and Loan Association, 252 Ark. 264, 478 S.W.2d 431 (1972).
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Jack Holt, Jr., Chief Justice.
The appellant, Bob Cole Bail Bonds, Inc., appeals from the trial court’s denial of its motion for declaratory judgment, concerning the interpretation of Ark. Code Ann. § 17-17-306 (1989 and Supp. 1991), the posting of bail bondsmen lists in facilities housing persons in custody. The trial court held that bondsmen are to be placed on the annual lists in the order in which they register with the circuit clerk each year. We reverse and remand.
Act 417 of 1989 governs the practice of bail bondsmen. Upon proper application to the State Insurance Commissioner, a bondsman is issued a license. Thereafter, the bondsman retains his license with an annual renewal application, barring any violations of the provisions of Act 417 or the rules and regulations of the commissioner. See Ark. Code Ann. §§ 17-17-201 through 207 (1989 and Supp. 1991). The sheriff and circuit clerk in each county are provided with a list of all licenses and any revocations or suspensions. Section 17-17-206.
Local jails and detention centers aré required to post a list of licensed bondsmen for the benefit of the inmates. A bondsman who wishes to be included oh the list in a certain county “registers” with the appropriate county circuit clerk, for that purpose, in accordance with section 17-17-306. The statute provides in pertinent part:
(a) The chief law enforcement officers of any facility having individuals or prisoners in their custody shall post in plain view in the facility housing those individuals or prisoners a list provided by the circuit clerk.
(b) The list prepared by the circuit clerk and approved by the circuit court shall contain the names of professional bail bondsmen who register with the clerk for the purpose of being included on the list.
(c) Professional bail bondsmen shall be included on the list in the order in which they initially register with the clerk.
(Emphasis added.)
In 1989, the appellant obtained its license from the commissioner, and was the first bond company to register with the Crawford County Circuit Clerk’s office; subsequently, appellant was placed at the top of the list posted in the Crawford County Detention Center, in compliance with section 17-17-306(c).
The following year, appellee Bob Underwood was the first bail bondsman to present his license to the Crawford County Circuit Clerk and his company, instead of the appellant’s, was placed at the top of the list for 1990. The appellant properly renewed its license with the commissioner, but was the last company to present its license to the Crawford County Circuit Clerk, thereby receiving the last position on the list.
The appellant filed a motion for declaratory judgment claiming that because it was the first bondsman to register in 1989, it is forever entitled to remain first on the list, barring the loss of its license due to revocation, suspension, surrender, or non-renewal. From the trial court’s denial of the motion, comes this appeal.
The order of the list is important, appellant argues, because the top-listed bondsman receives a greater volume of business due to the fact that most defendants consult the first name to appear. The issue is whether the order in which bondsmen “initially register,” under section 17-17-306(c), means, as the appellant contends, the first time the bondsman registers with the clerk (thereafter keeping his place by proper renewal), or the yearly presentation of a newly registered or renewed license, as interpreted by the trial court. While we agree with the appellees that the former interpretation leads to the anomalous result that one bondsman may forever retain a corner on the market, merely because he was first to register in 1989, the wording of the statute does not permit us to conclude otherwise.
The first rule in considering the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Bolden v. Watt, 290 Ark. 343, 719 S.W.2d 428 (1986); see also Graham v. Forrest City Housing Auth., 304 Ark. 632, 803 S.W.2d 923 (1991). The legislature’s inclusion of the word “initially”, in the section at issue, inescapably reflects an intention that the lists remain in the order in which the bondsmen register for the first time with the clerk.
Registration for the purpose of being placed on a bondsmen list is obviously optional; however, once a properly licensed bondsman does so, section 17-17-306(c) mandates that the order in which he registers permanently determines his position on the list. Annual “registration” with the circuit clerk, evidencing license renewal, is not required, as the clerk will receive this information from the commissioner. See section 17-17-306 and 206.
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Robert L. Brown, Justice.
This case concerns the execution of a nightime search warrant and the circuit court’s denial of appellant Michael David Garner’s motion to suppress the evidence seized as a result of the search. The appellant was charged with possession of a controlled substance — specifically, marijuana — with intent to deliver but was convicted of the lesser offense of mere possession, which is a misdemeanor. He was sentenced to one year in the county jail and fined $1,000. He now appeals on the basis that insufficient facts were contained in the officers’ affidavit to establish reasonable cause for a nighttime search. We agree with the appellant, and we reverse and remand.
At 1:25 a.m. on the morning of October 10,1989, Cleburne County Sheriff Jerry Holmes and officers of the Heber Springs Police Department met with Municipal Judge Navada Richardson at the Stone County Sheriff’s office. The purpose of the meeting was for the officers and sheriff to present an affidavit for a search warrant to the judge in order to justify a nighttime search of the appellant’s premises. The affidavit was completed on a printed form. It was signed by the Cleburne County Sheriff and a Heber Springs detective and notarized by the judge.
In the affidavit, the appellant’s premises were identified, and directions to the premises were given. The dwelling to be searched was located more than 12.5 miles from the Stone County courthouse. The property to be seized was described as marijuana and drug paraphernalia. The facts establishing grounds for the search can be summarized as follows:
a. An individual arrested on February 3, 1988, for possession of controlled substances with intent to deliver had stated that he bought the drugs from the appellant.
b. During the past sixty days, the sheriffs office and the police department had received information from various sources that several purchases of marijuana had been made from the appellant.
c. On the night of October 9,1989, a person was arrested for possession of marijuana and stated in an interview that the purchase had been made from the appellant one hour earlier and that a quantity of marijuana had been observed in the trailer where the purchase had taken place. The person further stated that he or she had purchased marijuana from the appellant twenty-five times during the past five months ranging from two ounces to one pound.
Printed at the top of the affidavit form was the phrase “Day or Night Time Search.” Beneath the legend were three designated reasons to justify a day or nighttime search with a line beside each one to check:
_(a) The place to be searched is difficult of speedy access; or
_(b) The objects to be seized are in danger of imminent removal; or
_(c) The Warrant can only be safely or successfully executed at night time or under circumstances the occurr[a]nce of which is difficult to predict with accuracy.
The lines beside (a) and (c) had been checked by the officers.
The search-and-seizure warrant signed by the judge also was a printed form, which stated that the search would be carried out between the hours of 6:00 a.m. and 8:00 p.m. At the top of the form was printed “Daytime Search Only.” The word “Daytime” had been scratched through and the word “Nighttime” written in with the date and the judge’s initials.
The sheriff, three deputies, and the police detective then executed the warrant the morning of October .10,1989, between the hours of 2:30 a.m. and 4:15 a.m. They seized a quantity of marijuana, arrested the appellant, and charged him with possession of a controlled substance with intent to deliver.
Before the trial began, the appellant moved to suppress the drugs seized on multiple grounds, including violation of our criminal rules and state and federal constitutional protections against unreasonable searches and seizures. After a suppression hearing, the circuit judge denied the motion, and the appellant was subsequently convicted of the misdemeanor offense.
The appellant’s first argument on appeal is that insufficient facts were presented in the affidavit to support a nightime search under our Rules of Criminal Procedure and that those facts that were presented simply traced the rule and were conclusory. This argument has merit. Our Rules provide three bases for reasonable cause to justify a nightime search:
Upon a finding by the issuing judicial officer of reasonable cause to believe that;
(i) the place to be searched is difficult of speedy access; or
(ii) the objects to be seized are in danger of imminent removal; or
(iii) the warrant can only be safely or successfully executed at nightime or under circumstances the occurrence of which is difficult to predict with accuracy;
Ark. R. Crim. P. 13.2 (1991). Moreover, our cases have consistently held that a factual basis supporting a nighttime search is required as a prerequisite to the issuance of a warrant. See State v. Martinez, 306 Ark. 353, 811 S.W.2d 319 (1991); Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990); State v. Broadway, 269 Ark. 215, 599 S.W.2d 721 (1980).
In State v. Broadway, the affidavit at issue ended with the statement: “Having found reasonable cause to believe that the substance described herein could be removed unless the search is conducted immediately, you are hereby commanded to search the above described premises of property at anytime of the day or night.” The search warrant, which was also on a printed form, contained identical language. We held in Broadway that even though language was included both in the affidavit and search warrant that the substances could be removed, there was no factual basis for that conclusion or to support a nighttime search. We then stated:
An affidavit should speak in factual and not mere conclusory language. It is the function of the judicial officer, before whom the proceedings are held, to make an independent and neutral determination based upon facts, not conclusions, justifying an intrusion into one’s home.
269 Ark. at 218, 599 S.W.2d at 723. We added that we could not construe the potential for removal as described in the affidavit to mean that the property was in imminent danger of removal as Rule 13.2 requires, and we affirmed the circuit court’s suppression of the evidence.
In Hall v. State, sworn testimony was taken before the municipal judge to justify the nighttime search, but it was not recorded. There was nothing in the officer’s affidavit to justify a nighttime search or to satisfy Rule 13.2. The judge issued the warrant and noted in his handwriting that it could be served any time, day or night. The warrant was then executed between the hours of 1:00 a.m. and 3:00 a.m. Again, we held that the affidavit must describe facts showing reasonable cause to believe that circumstances exist which justify a nighttime search, and this the officer had failed to do. We further held that this lapse was a substantial violation under our Rules which necessitated suppression of the seized evidence. See Ark. R. Crim. P.16.2 (1991).
In State v. Martinez, the affidavit for search warrant was silent on grounds supporting reasonable cause, and we held that the conduct of a nighttime search without factual justification was a substantial violation warranting suppression under our Rules.
In the case before us, the officers merely placed checks on two lines in front of conclusory statements to establish reasonable cause. Ironically, the line beside the statement that the objects to be seized were “in danger of imminent removal” was not checked. It is clear that the affidavit form was drafted to mirror the bases for reasonable cause set out in Rule 13.2. Indeed, the language is virtually the same. In sum, the affidavit was bare-bones, as it related to the nighttime search.
Our holdings in Broadway, Hall, and Martinez require more than the officers provided in this case. Under those holdings, conclusory statements did not suffice to establish the requisite factual basis for reasonable cause. The same is true in this case. We, therefore, hold that the two statements “checked” were conclusory and unsupported by sufficient facts and, accordingly, did not establish reasonable cause for a nighttime search. Without sufficient factual premises, it was impossible for the municipal judge to make an intelligent finding of reasonable cause to justify a nighttime search. The circuit court, in reviewing the affidavit, did find that the municipal judge had sufficient facts before her to establish reasonable cause and noted that the affidavit referred to the difficulty of speedy access and the need for a safe and successful execution to occur at night. However, this was clear error due to the lack of a factual basis for the two conclusions for the reasons already stated.
We turn next to the issues of whether this failure to establish reasonable cause with sufficient facts was a substantial violation of our Rules so as to warrant suppression of the evidence obtained. We hold that it was a substantial violation. In determining such a violation, our Rules require that the circuit court consider the following:
(i) the importance, of the particular interest violated;
(ii) the extent of deviation from lawful conduct;
(iii) the extent to which the violation was willful;
(iv) the extent to which privacy was invaded;
(v) the extent to which exclusion will tend to prevent violations of these rules;
(vi) whether, but for the violation, such evidence would have been discovered; and
(vii) the extent to which the violation prejudiced moving party’s ability to support his motion, or to defend himself in the proceedings in which such evidence is sought to be offered in evidence against him.
Ark. R. Crim. P. 16.2 (1991).
The trinity of cases previously cited — State v. Martinez, Hall v. State, and State v. Broadway — all held that substantial violations occurred under Rule 16.2 due to failure to justify a nighttime search with sufficient factual information. The case before us is not markedly different from this precedent. The privacy of the citizens in their homes, secure from nighttime intrusions, is a right of vast importance as attested not only by our Rules but also by our state and federal constitutions. Intrusion without sufficient factual justification under circumstances such as we have here substantially violates our Rules, and our previous cases have so held. Moreover, as was the situation in State v. Martinez, there is nothing in the record before us to indicate that the evidence would not have been there the next morning.
The final issue is whether the executing officers operated in good faith under United States v. Leon, 468 U.S. 897 (1984), and if so, whether that salvages an otherwise defective search and seizure. We have previously held that we would apply the Leon good-faith exception to our criminal rules under appropriate circumstances. See Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990).
In Leon, the Court cited four instances in which suppression of evidence is an appropriate remedy, or, stated differently, where the objective good faith of the officers would not save the warrant:
1. Where the officers misled the issuing judge with information they knew was false or would have known was false, except for reckless disregard of the truth.
2. Where the issuing judge abandons the judicial role of neutrality and detachment and becomes an adjunct law enforcement officer.
3'. Where the officers’ affidavit is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.
4. Where the search warrant is facially deficient in failing to identify the place to be searched or things to be seized.
468 U.S. at 923. The Court was also emphatic in its decision that suppression of evidence is designed to deter police misconduct rather than to punish the issuing judges for their errors.
Our concern today is for the integrity of our Rules. If they are to have any meaning relative to nighttime searches, more must be shown the municipal judge than was offered in this case. Subjectively, the executing officers no doubt believed that they were complying with the law because they were using a printed form. Objectively, the affidavit and warrant were lacking in any indicia of a reasonable cause for a nighttime search other than a reiteration of the conclusory language in our Rules. Certainly no factual basis was given, as has already been discussed. We hasten to add that there may have been oral statements to the municipal judge, but as the circuit court correctly stated at the suppression hearing, oral statements were not recorded and, hence, cannot be considered on review.
To conclude, we decline to apply the Leon good-faith exception to this case on the basis that, objectively speaking, the deficiencies in the affidavit should have been a red flag to the officers warning them of a lack of reasonable cause to support the search.
For the foregoing reasons, we hold that the circuit court erred in denying the appellant’s motion to suppress, and we reverse and remand. | [
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Tom Glaze, Justice.
At 1:45 a.m., John Dowdy, an eighty-nine-year-old resident of the Rose Care Center, left the nursing home unnoticed in his wheelchair and was subsequently struck by a pickup truck driven by Derry Hallmark. Mr. Dowdy was killed instantly. Maureen Bailey, as the sister of the decedent and the administratrix of his estate, filed suit alleging negligence on the part of the appellees, Rose Care Center and Hallmark. The jury returned a verdict in favor of the appellees.
The appellant appeals alleging the following four points of error: 1) the trial court erred in giving jury instruction number nine [AMI 1501], because it is an incorrect statement of the law concerning the nursing home’s standard of care; 2) there is insufficient evidence to support the jury’s verdict; 3) the trial court erred in excluding evidence of the nursing home’s modification of the alarm system and adoption of guidelines requiring its use after Mr. Dowdy’s death; 4) the trial court erred in refusing to give the appellant’s requested instruction, number two, on the measure of damages. Because we find merit in the appellant’s first point of error that the trial court erred in giving jury instruction number nine [AMI 1501], we reverse and remand the jury’s verdict in favor of Rose Care Center.
All of the appellant’s arguments on appeal concentrate on her negligence suit against Rose Care Center. The jury was properly instructed as to law governing the appellant’s burden of proof in showing that Hallmark was negligent, and the record clearly shows that there is sufficient evidence to support the jury’s finding of no negligence on Hallmark’s part. Thus, we affirm the jury’s verdict in his favor. See Womack v. Brickell, 232 Ark. 385, 337 S.W.2d 655 (1960).
At the trial, the trial judge gave the following pertinent jury instructions:
Instruction No. 9 [AMI 1501]
Maureen Bailey, individually and as Administratrix of the Estate of John Fletcher Dowdy, claims damages from Rose Care Center and has the burden of proving each of the four essential propositions:
First, that she sustained damages.
Second, The degree of skill ordinarily possessed and used by nursing homes in good standing in Jonesboro, Arkansas, or in a similar locality,
Third, That Rose Care Center failed to act in accordance with such standard, and
Fourth, That any failure by Rose Care Center to act in accordance with such standard proximately resulted in John Fletcher Dowdy suffering injuries which would not otherwise have occurred.
Instruction No. 13 [AMI 303]
A failure to exercise ordinary care is negligence. When I use the words “ordinary care,” I mean the care a reasonably careful person would use under circumstances similar to those shown by the evidence in this case. It is for you to decide how a reasonably careful person would act under those circumstances.
Instruction No. 22 [AMI 1505]
A nursing home must use ordinary care to furnish a patient the care and attention reasonably required by his mental and physical condition.
The appellant objected to instruction nine [AMI 1501] and instead proffered the following jury instruction to be given with the above instruction twenty-two [AMI 1505]:
AMI 203
First, Maureen Bailey, individually and as Administratrix of the Estate of John Fletcher Dowdy, Deceased, sustained damages;
Second, That Rose Care Center and Derry Hallmark, or one of them was negligent; and
Third, That such negligence was a proximate cause of Maureen Bailey’s, individually and as Administratrix of the Estate of John Fletcher Dowdy’s, Deceased, damages.
Below and here on appeal, appellant argued that AMI 203 together with AMI 1505 (instruction number twenty-two) was the proper standard of care owed by Rose Care Center. While the trial court included AMI 1505 in its jury instructions, it also instructed the jury with AMI 1501. The appellant contends that the trial court erred in using AMI 1501, and we agree.
AMI 1501 (instruction nine) is the jury instruction given in cases involving medical injuries. See Ark. Code Ann. § 16-114-206 (1987). Under Ark. Code Ann. § 16-114-201(3) (1987), the definition of medical injury includes “any adverse consequences arising out of or sustained in the course of the professional services being rendered by a medical care provider, whether resulting from negligence, error, or omission in the performance of such services.” A nursing home is included in the definition of medical care providers. Ark. Code Ann. § 16-114-201(2).
In order to establish, under AMI 1501 and § 16-114-206, that the medical care provider failed to act in accordance with the degree of skill and learning possessed by other members of the profession in good standing, the plaintiff must have expert testimony. See Sexton v. St. Paul Fire & Marine Ins. Co., 275 Ark. 361, 631 S.W.2d 270 (1982). On the other hand, AMI 1505 requires only that the plaintiff show that the hospital, sanitarium, or nursing home did not use ordinary care to furnish a patient the care and attention reasonably required by his medical or physical condition. As noted under AMI 303, above, it is for the jury to decide how a reasonably careful person would act under these circumstances. Expert testimony is only required when the asserted negligence does not lie within the jury’s comprehension; when the applicable standard of care is not a matter of common knowledge; and when the jury must have the assistance of expert witnesses to decide the issue of negligence. Prater v. St. Paul Ins. Co., 293 Ark. 547, 739 S.W.2d 676 (1987).
Two prior opinions by this court, Sexton v. St. Paul Fire & Marine Ins. Co., 275 Ark. 361, 631 S.W.2d 270 (1982), and Brown v. St. Paul Mercury Ins. Co., 292 Ark. 558, 732 S.W.2d 130 (1987), provide insight to the discussion and understanding of this issue. Appellees cite and rely on Sexton in this appeal. In Sexton, an elderly patient died from injuries sustained after he fell out of his hospital bed. The question before the court was whether the hospital’s failure to place a safety restraint vest on a patient fit within the meaning of a medical injury. The patient had fallen out of his bed before, and a doctor had authorized a safety restraining vest but left its use up to the nurses’ discretion. Relying on the fact that only a doctor could authorize the use of the safety restraint vest, this court held that the use of the vest is a professional service and thus fit under the definition of a medical injury. In Brown, the court extended the meaning of medical injury to include a patient who walked out of an unlocked door onto the roof of an alcohol treatment center. The patient either jumped or fell to his death. The court held that it was within the scope of the hospital’s professional services to provide a safe environment for this patient under the circumstances and failure to do so gives rise to a medical injury.
On reexamination, we conclude that the facts set out in Brown did not fall within the definition of medical injury. The Sexton case, as previously mentioned, involved the nonuse of a safety restraint vest that had been authorized by a doctor, leaving the final decision for the vest’s use to the nurses. The Sexton court analogized the situation before it to those holdings where courts had ruled that the raising of bedrails involved expert judgment of the health care provider. We take no exception to that reasoning. However, the circumstances in Brown did not involve a professional service but instead raised only the question of whether a patient was properly supervised by the health center’s staff. Likewise, in the present case, while Mr. Dowdy was in a wheelchair, he was not ordered by a doctor to be restrained and was able to move around the nursing home at will. In fact, as the nursing home staff testified, Mr. Dowdy was known to stay up late and watch television. And, while he often was confused, he was mentally alert and able to communicate.
In sum, Mr. Dowdy was under a doctor’s care while he was in the nursing home, but his death was not the result of a doctor’s treatment or order. Instead, the question is whether Mr. Dowdy was properly supervised by the one LPN and five nurse’s aides on duty that night. The answer to this question merely requires the jury to decide whether the nursing home used ordinary care in furnishing Mr. Dowdy the care and attention reasonably required by his mental and physical condition.
Accordingly, we hold that the trial court erred in giving AMI 1501 in the form of instruction number nine to the jury. An erroneous instruction which is likely to mislead the jury is prejudicial. See Howard v. Tri-State Ins. Co., 253 Ark. 405, 486 S.W.2d 77 (1972). Here, the jury was instructed on the wrong standard of care for the nursing home, thus we reverse and remand the jury verdict in Rose Care Center’s favor. To the extent that our opinion in Brown v. St. Paul Mercury Ins. Co., 292 Ark. 558, 732 S.W.2d 130 is inconsistent with this holding, it is overruled.
We address the appellant’s third and fourth points since they will likely recur on remand. The third point concerns the nursing home’s alarm system. The nursing home was equipped with an alarm system on the exit doors, but the alarm system was not in use at the time of the accident. At the trial, the appellant attempted to introduce evidence of the nursing home’s modification of the alarm system (and adoption of guidelines requiring its use) after the accident. The trial court excluded the evidence under A.R.E. Rule 407, which provides the following:
Whenever, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures if offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
The appellant argues that the evidence was admissible under Rule 407 because Ms. McMillian, the administrator of the nursing home, controverted the feasibility of the alarm system. After reviewing her testimony, we do not agree. While Ms. McMillian expressed some doubt as to whether the alarm could have prevented the accident by itself, she did admit in her testimony that having a reliable alarm system would be a good precautionary measure and preferable to just having the staff watching. Ms. McMillian’s statements supported the use of the alarm instead of controverting the feasibility of the alarm system; therefore the trial court was correct in excluding the evidence under Rule 407.
Likewise, we dismiss the appellant’s final argument that the trial court erred in omitting provision (c) of her proffered instruction which allowed damages for the loss of enjoyment of life and the capacity to enjoy life suffered by John Dowdy. In short, our law does not recognize damages for loss of the decedent’s enjoyment of life in wrongful death actions. See Ark. Code Ann. § 16-62-102 (1987); AMI 2215.
For the reasons stated above, we reverse and remand the jury’s verdict in favor of Rose Care Center and affirm the jury’s verdict for Derry Hallmark. | [
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Robert L. Brown, Justice.
This is the third time that this case has been before us on appeal. The issue each time has remained essentially the same. The appellees, Pittman Garden Center, Inc., and Donald Pittman d/b/a Pittman Nurseries Co., which are located in Magnolia, argue that certain of their employees — about 57 in number — should be exempt from state income tax withholding because they are engaged in agricultural labor. Donald Pittman is a principal of both businesses. The appellant, the Commissioner of Revenues, contends that affected employees of the appellees are not involved in agriculture, but rather’ are engaged primarily in providing horticultural and landscaping services.
The factual backdrop against which the case must be decided is this. The Pittman appellees operate a nursery that produces and sells multiple plants for the wholesale market and a garden center that sells plants to customers in the retail market. The employees of the Pittman appellees also deliver horticultural products and provide labor to a separate Pittman business, Pittman Landscape Planners, Inc., which is not a party to this litigation. The landscaping business serves customers in south and central Arkansas and northern Louisiana. Pittman Landscape Planners, Inc., was run during the relevant time period by appellee Donald Pittman’s daughter, Donna Pittman.
From January 1,1982, through April 30,1985, the commissioner conducted income tax withholding audits of the Pittman appellees and as a result of those audits, assessed additional withholding taxes. The Pittman appellees objected on the ground that their employees were engaged in agricultural labor and were, therefore, exempt. The assessments were reviewed administratively and upheld. From that ruling, the Pittman appellees filed suit in chancery court for judicial review.
The chancellor first found that the Pittman employees were engaged in agricultural labor and, thus, were exempt from withholding. The commissioner appealed, and we reversed. See Ragland v. Pittman Garden Center, 293 Ark. 533, 739 S.W.2d 671 (1987) (Ragland I). We first observed that the exemption is not applicable to wages paid for landscaping services after the commodity is delivered to the terminal market. In so deciding, we relied on the precise language of Ark. Code Ann. § 26-51-902(1) (1987), which specifically refers to a section of the federal social security law — 26U.S.C. § 3121(g) (1988) — for its definition of “agricultural labor.” Landscaping services are not included in the federal definition. We did note, however, that certain employees were engaged in both agricultural and landscaping work. To assist in determining whether the employees were agricultural or not, we looked to a federal statute incorporated within 26 U.S.C. §3121 (g) (1988), which provided that when an employee devotes one half or more of his or her time to agricultural labor, that employee is exempt from withholding. See 26 U.S.C. § 3121(c) (198 8). We remanded the case to the chancellor to determine the percentage of time the employees spent in providing agricultural services and the percent involved with landscaping services.
On remand, the chancellor included transportation time for the delivery of plants to customers as agricultural labor. After doing so, he again found that the employees of the Pittman appellees qualified for the exemption. The commissioner then filed a second appeal.
In Ragland II, we agreed with the commissioner that non-agricultural labor began when the employees left the nursery to commence delivery of the plants to a landscaping customer and not when they arrived at the customer’s location. See Ragland v. Pittman Garden Center, Inc., 299 Ark. 293, 772 S.W.2d 331 (1989). However, we were unable from the record to ascertain whether, even with the exclusion of transportation time, the employees were engaged in agricultural labor half of their work time or more. We, therefore, remanded the case a second time for the chancellor to make a finding of the time spent in each endeavor.
The Pittman appellees filed a petition for rehearing and asked us to clarify the issue of when transportation time attached to agricultural services and when it attached to landscaping services. In a supplemental opinion, we clarified this point by reference to a standard set out in a federal regulation which was adopted pursuant to the Fair Labor Standards Act. See Ragland v. Pittman Garden Center, Inc., 299 Ark. 298, 777 S.W.2d 222 (1989); 29 C.F.R. § 780.206. We concluded, on the basis of that regulation, that agricultural labor may indeed include time spent in delivering products to customers under some circumstances but should not be included if the delivery is merely incidental to providing landscaping services.
After a full hearing on remand on October 3, 1990, the chancellor entered a decree, stating that the Pittman appellees had established beyond a reasonable doubt that the primary purpose of the transportation was the delivery of agricultural products to market and was not merely incidental to landscaping services as defined by 29 C.F.R. § 780.206. There was no finding from the bench following the hearing, and no findings of fact accompanied that decree. The chancellor further concluded in his decree that Pittman was only liable for $861.18 in state withhold ing taxes for wages paid to employees who spent more than fifty per cent of their time engaged in landscaping activity. The commissioner moved to set aside the decree and for a new trial, but that was denied.
For his first argument on appeal, the commissioner argues that the chancellor clearly erred in finding that the employees of the Pittman appellees were entitled to the exemption. He cites us to Ragland II, where we stated that the law puts a pronounced burden on the taxpayer to establish entitlement to an exemption by proof that is both beyond a reasonable doubt and conclusive. 299 Ark. at 298; 772 S.W. 2d at 333. He then refers specifically to the testimony of Donna Pittman, who ran the Pittman Landscape Planners, Inc. during the operable time and who stated that following the delivery of plants, “seventy-five percent of the time we actually install the plants into the ground.” The commissioner further directs our attention to the testimony of the auditor, Dennis Johnson, who testified that all 57 employees of the Pittman appellees were reimbursed 100% for their employment time by Pittman Landscape Planners, Inc.
The commissioner is correct that we strictly construe tax exemptions, and any doubt is resolved in favor of the tax. See C.J.C. Corp. v. Cheney, 239 Ark. 541, 390 S.W.2d 437 (1965). We also review tax exemption cases by trial de novo. See Ragland v. Dumas, 292 Ark. 515, 732 S.W.2d 119 (1987). Moreover, the Pittman appellees have the burden of proving the exemption beyond a reasonable doubt. See S.H. & J. Drilling Corp. v. Qualls, 268 Ark. 71, 593 S.W.2d 178 (1980). In other words, the burden resided on Pittman appellees to prove that the transportation time was agricultural labor and not incidental to landscaping work at the trial on October 3, 1990.
In light of these well-established principles, we conclude that the Pittman appellees did not meet their burden. We, again, are drawn to the testimony of Donna Pittman, who testified that seventy-five percent of the time the employees of Pittman appellees put the plants in the ground following delivery. This more than suggests that the plants were delivered incident to the landscaping services. Donna Pittman was in the best position to know, as the person who ran the landscaping business, what the employees actually did on the job, and her conclusion carries considerable weight. Moreover, the landscaping firm was reimbursing the Pittman appellees 100% for the work done by these employees. That runs counter to any contention that the employees were not engaged in landscaping labor.
In reviewing the record of the last hearing, we find that sufficient proof to sustain that the transportation related to agriculture was not presented by the Pittman appellees. It was their burden to prove the exemption beyond a reasonable doubt. This they failed to do, and the chancellor clearly erred in finding otherwise.
Accordingly, we reverse the chancellors’ decision and remand the matter for a judgment to be entered consistent with this opinion in the full amount of the assessment.
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Robert H. Dudley, Justice.
In June of 1986, Hubert Alexander, an attorney, represented Jerry Chapman in the sale of a business. In July of 1990, more than three (3) years after the sale had been completed, Chapman-sued Alexander for an alleged act of legal malpractice which occurred at the time of the sale. Chapman did not allege Alexander concealed the negligent act. Alexander pleaded the statute of limitations as a bar to the action. The trial court granted summary judgment in favor of Alexander. We affirm the summary judgment.
Since 1877, it has been our rule that the statute of limitations applicable to a malpractice action begins to run, in the absence of concealment of the wrong, when the negligence occurs, andnotwhenitisdiscovered. Riggs v. Thomas, 283 Ark. 148, 671 S.W.2d 756 (1984). Appellant Chapman acknowledges our long line of cases so holding and that they constitute the “general rule.” Even so, he asks us to abandon the general rule and retroactively adopt one of the “current trend” cases. Those cases primarily adopt one of three (3) approaches. First, is the “discovery rule.” Under this approach, the statute of limitations does not begin to run until the negligent act is discovered or should have been discovered. Second, is the “date of injury” rule. Under this view, the statute of limitations begins to run, not from the occurrence of the negligent act, but rather from the time injury results from the negligent act. Third, is the “termination of employment” rule. Under it, the statute of limitations does not begin to run until the attorney-client, doctor-patient, or other professional-client relationship has ended. See Annotation, When Statute of Limitations Begins To Run Upon Action Against Attorney For Malpractice, 32 A.L.R.4th 260 (1984). Some of the aforementioned “rules” are based upon statutes rather than case law. See id. at 266-67.
In ordinary tort and contract actions, the statute of limitations begins to run upon the occurrence of the last element essential to the cause of action. This is also the case under our traditional rule. The “other rules” postpone the running of the statute of limitations in professional malpractice, that is, give the client a longer period of time in which to sue, because of the special nature of the relationship between the professional and his client. While each of the other approaches has some appeal, we found the most meritorious of the other rules to be the “discovery rule” adopted by the Supreme Court of California in Neel v. Magana, 6 Cal. 3d 176, 98 Cal. Rptr. 837, 491 P.2d 421 (1971). Still we do not abandon our traditional rule and adopt the “discovery rule.”
Our traditional rule has a countervailing fairness about it. First, everyone is .treated in the same manner. Second, an abstractor, accountant, architect, attorney, escrow agent, financial advisor, insurance agent, medical doctor, stockbroker, or other such person will not be forced to defend some alleged act of malpractice which occurred many years ago. The problem with the delay is that his or her records or witnesses may no longer be available. For example, in the oral argument of this case, it was developed that under the “discovery rule” an attorney could be forced to defend the validity of a mortgage 25 to 30 years after the preparation of the instrument, long after his records and witnesses are no longer available.
If this case were limited to deciding which rule was the most fair it would be a much closer case, but there is a good deal more to the issue. In a case identical to the one now at bar, we wrote:
Counsel for the appellants concede that it has long been the law in Arkansas that the statute of limitations in an action against an attorney for negligence begins to run, in the absence of concealment of the wrong, when the negligence occurs, not when it is discovered by the client. White v. Reagan, 32 Ark. 281 (1877); Wright v. Langdon, 274 Ark. 258, 623 S.W.2d 823 (1981). The same rule applies to an action brought against an abstractor for damages resulting from an omission in the abstract of title. St. Paul Fire & Marine Ins. Co. v. Crittenden Abstract & Title Co., 255 Ark. 706, 502 S.W.2d 100 (1973). Counsel argue that we should overrule our prior cases, because an injustice occurs when the statute has run before the error is discovered. That may be true, but a countervailing consideration is that the contrary rule would permit the plaintiff to bring suit many years after the damage had actually occurred and at a time when witnesses might no longer be available. If such a marked change is to be made in the interpretation of statutes that have long been the law, it should be done prospectively by the legislature, not retrospectively by the courts. [Emphasis added.]
Riggs v. Thomas, 283 Ark. 148, 149, 671 S.W.2d 756, 757 (1984).
In another identical case, with the exception that it.involved an accountant, we wrote:
Our decisions have settled this limitation question in professional malpractice actions, and our rule is considerably more restrictive than any of the cases cited and relied on by appellant. In Arkansas malpractice cases, concerning attorneys and physicians, we have consistently held that the statute of limitations begins to run, in the absence of concealment of the wrong, when the negligence occurs, not when it is discovered. Stroud v. Ryan, 297 Ark. 472, 763 S.W.2d 76 (1989); Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988); Riggs v. Thomas, 283 Ark. 148, 671 S.W.2d 756 (1984). In fact, Arkansas courts have followed this rule, as it pertains to professional malpractice actions, for well over one hundred years. See White v. Reagan, 32 Ark. 281 (1877) (quoting from Howell v. Young, 5 Barn. & Cress. 259). That being so, we see no compelling reason why we should adopt a different rule to be used in accounting malpractice cases. Accordingly, since appellee’s erroneous advice or negligent conduct occurred in August 1974, appellants’ suit filed on September 8,1981, was clearly beyond the three-year limitation statute. We observed in Riggs v. Thomas, supra, that if such a marked change is to be made in statutes that have long been the law, it should be done by the legislature, not the courts. [Emphasis added.]
Ford’s Inc. v. Russell Brown & Co., 299 Ark. 426, 429, 773 S.W.2d 90, 92-93 (1989).
We have made it clear that we are not going to retroactively change our rule and that, if it is to be changed, the change must come from the General Assembly. It would be incongruous for us, rather than the legislature, to now change it. More importantly, the issue is one of statutory construction and, since 1877, we have construed our statute under the “traditional rule.” Legislative silence after such a long period gives rise to an arguable inference of acquiescence or passive approval of our construction of the statute. Actually, we find even stronger legislative approval. In 1979 the General Assembly amended the medical malpractice statute to provide: “The date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time.” The statute further provides that the above sentence shall control unless the doctor conceals a foreign substance in the patient’s body, and then the statute of limitations begins to run when the foreign substance is discovered or should have been discovered. Ark. Code Ann. § 16-114-203(b) (1987). This legislative expression in the medical malpractice statute is consistent with the way we have long construed the malpractice statute of limitations. We can only conclude we are interpreting the statute as the legislature intends.
There is yet another significant reason we do not retroactively adopt the “discovery rule,” “date of injury rule,” or “termination of employment rule.” Many abstractors, accountants, architects, attorneys, and other similar professionals surely have relied on our traditional and longstanding rule. In doing so, they had no reason to keep records for longer than three (3) years. As a consequence, if we retroactively changed the rule, they might easily have no materials to use in their defense. Similarly, most professional people insure themselves against malpractice suits. The terms of malpractice insurance policies may have changed over the last 25 years, so that a professional person who was insured years ago might not be covered today under a retroactive application of the statute of limitations. The General Assembly is best suited to hold hearings on such issues and determine whether a change, if any, should be made and whether it should be made retroactively, prospectively from the date of the change, or prospectively from some future date which would give all professional people time to acquire adequate insurance under a different statute of limitations.
Accordingly, we decline to retroactively overrule our cases construing the statute of limitations in malpractice actions. Affirmed.
Brown, J., not participating. | [
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Donald L. Corbin, Justice.
This appeal originated in the Johnson County Court when, pursuant to Ark. Code Ann. § 27- 66-401 (1987), appellees filed a petition to establish a private road from appellant’s land to a public road. The Johnson County Court appointed three viewers to lay out the road and determined appellant’s damages at $500.00. Appellant appealed to the Johnson County Circuit Court which affirmed the county court’s decision. Appellant appeals to this court claiming three requirements of section 27-66-401 were not satisfied. We find no error and affirm. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 29(l)(c).
We consider the evidence in the light most favorable to appellees and affirm unless the decision of the trial court is clearly erroneous. Ark. R. Civ. P. 52; Armstrongs. Harrell, 279 Ark. 24, 648 S.W.2d 450 (1983). As viewed most favorably to appellees, the evidence produced at trial reveals the parties own adjacent forty-acre tracts of land. Appellant’s property lies to the west of appellees’ property. A strip mine runs along the northern one-half of appellees’ land and continues in a south-westerly direction onto part of appellant’s land. Cole Creek Road is a public road running east and west on the north side of the strip mine. Another public road, Cove Creek Road, runs north and south down the middle of appellant’s property and intersects Cole Creek Road. Also on appellant’s land is a road running in a northeasterly direction from Cove Creek Road to the boundary line between appellant’s and appellees’ properties. This road was first used by previous generations of appellees’ family to access their home and was most recently used by appellant as a logging road to haul timber off his land. This is the road which appellees sought to establish pursuant to section 27-66-401.
Section 27-66-401 provides as follows:
When the lands, dwelling house, or plantation of any owner is so situated as to render it necessary to have a private road from such lands, dwelling house, or plantation to any public road or navigable watercourse over the lands of any other person and the other person refuses to allow that owner the private road, then it shall be the duty of the county court to appoint viewers to lay off the road, provided the owner:
(1) Gives notice to such person twenty (20) days before application to the court;
(2) Petitions the court;
(3) Shows necessity for the private road;
(4) Shows that the person refuses to allow the road; and
(5) Deposits with the clerk of the court sufficient money to pay all costs and expenses accruing on account of the petition, notice, view, and survey of the private road.
Appellant’s first argument on appeal is that the trial court erred in finding appellees had shown a necessity for the roadway as required by section 27-66-401. Appellant argues the statute requires appellees to be “landlocked” in order to show the necessity of the requested road and that appellees have failed to show such a necessity in that appellees have access to their property from the east. Appellant also claims he offered appellees access to the southern part of their property via a road on the southern border of his property. Because appellees have a means of accessing their property other than the requested road, appellant asserts they failed to show the requested road is a necessity. Appellant supports this claim by citing Armstrong v. Harrell, 279 Ark. 24, 648 S.W.2d 450 (1983). In Armstrong, we affirmed the trial court’s order denying appellant’s petition to establish a private road over appellee’s property where the proposed road, although less costly, inconvenienced the appellee school district because it intersected a school parking lot and endangered the school children; in addition, the proposed road would have benefited only appellant.
Appellees, on the other hand, assert that they are not required to show they have no other means of ingress and egress to their property. They also dispute the existence of the east entrance claimed by appellant. While they do recognize it would be possible to enter their land from the south via the alternative route offered by appellant, they point out this route would be very expensive and involve building a road on their land up a very steep grade as well as building a bridge across the strip pit. If appellees were allowed to access their property from the northern road already existing on appellant’s land, they claim it would not cost them near as much because the land is flatter and the bridge across the strip pit is already existing on appellant’s land.
“What the petitioner must show is a reasonable necessity for a road, not an absolute necessity.” Attaway v. Davis, 288 Ark. 478, 480,707 S.W.2d 302, 303 (1986). It is not required that appellees show an absolute necessity for the private road by showing that they had no other means of reaching the public highway. Houston v. Hanby, 149 Ark. 486, 232 S.W. 930 (1921).
On facts strikingly similar to the present case, we held in Houston, supra, that the trial court’s finding that a proposed private road was necessary to enable appellee to haul logs to a public road was sustained by the evidence. The evidence revealed that the proposed road ran through appellant’s cleared land, that an alternative route suggested by appellant was along a steep grade with sharp turns rendering it difficult for logging trucks to pass, and that the alternative route would be a great deal more costly to appellee.
In the present case, the trial court recognized the alternative routes available to appellees, but went on to find their requested road was necessary. Given the similarities between the present case and Houston, supra, we cannot say the trial court’s finding that appellees’ requested road was necessary was clearly erroneous.
As his second claim on appeal, appellant asserts the trial court erred in finding appellant refused to allow appellees a road across his lands. Appellant claims that because he offered them access to a road other than the one appellees requested, they failed to meet their burden under the statute. We do not agree.
Section 27-66-401 and section 27-66-401(4) speak in terms of “the” road. In other words, the statute requires appellees to show appellant refused them access to the specific road they requested, not merely that appellant refused them access to just any road on his land.
As we stated previously in Houston, supra, the fact that an alternative route is offered is not determinative of whether the requested road should be allowed under the statute. See Houston, 149 Ark. at 490-91, 232 S. W.2d at 932. As the alternative route is much more costly to appellees than their requested route, and as their requested route is of use to appellant as well as appellees, we cannot say the trial, court was clearly erroneous in granting appellees’ petition for the requested road.
As his final point on appeal, appellant argues the trial court erred in fixing the location of the road in such a way that did not produce the least inconvenience to appellant. In support of this argument, appellant cites the following quotation from Pippin v. May, 78 Ark. 18, 21, 93 S.W. 64, 65 (1906):
In determining whether such a road is necessary, the court must, of course, take into consideration, not only the convenience and benefit it will be to the limited number of people it serves, but the injury and inconvenience it will occasion the defendant through whose place it is proposed to extend it.
At the time this lawsuit was tried, the road requested by appellees was already existing on appellant’s land and had been used by appellant for the purpose of allowing logging trucks and equipment access to the timber in the area. This is the same purpose for which appellees requested the use of this road. The three court-appointed viewers testified the requested road would be the best way for appellees to gain access to the north side of their property.
After considering all the evidence, including the report and testimonies of the three viewers, the trial court stated in its letter opinion:
In view of the testimony, the Court further finds that the proposed roadway along the existing roadway which was placed on Mr. Bean’s property for the removal of timber and which connects the Nelsons’ property to a public roadway would be the best location. This roadway appears to the Court to be the most convenient and least injurious to all parties involved.
It is clear from this letter opinion that the trial court weighed all the correct factors. We cannot say the trial court was clearly erroneous in reaching its conclusion that the requested road was the least inconvenient to all parties involved. Accord ingly, we affirm the trial court’s judgment granting appellees a private road over appellant’s land. | [
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Per Curiam.
The appellant Robert Fellows was convicted in the Circuit Court of Flempstead County of multiple counts of burglary and theft of property and sentenced to one-hundred years imprisonment. He was represented at trial by John Hollis who did not tender the record on appeal to this court in a timely manner. In July 1991 we granted a motion for rule on the clerk, noting that Hollis had admitted that the record was tendered late due to his failure to file the record in this court in accordance with the prevailing rules of procedure. Fellows v. State, 306 Ark. 257, 810 S. W.2d 338 (1991). The appellant’s brief was scheduled to be filed August 10,1991, but was not received by that date. Counsel was contacted in November and again in December about the brief, but as of this date, more than five months after the brief should have been filed, counsel has not tendered a brief or taken any other action in the case. Appellant Fellows has now filed a motion seeking to have John Hollis relieved and other counsel appointed to represent him on appeal. Appellant states that counsel has failed to communicate with him and that there is a conflict of interest because the issue of counsel’s effectiveness will be raised as an issue on appeal.
The motion to relieve Mr. Hollis as counsel is denied because appellant has not offered facts sufficient to demonstrate that there is a conflict of interest between him and counsel such that counsel cannot provide the effective assistance of counsel guaranteed by the Sixth Amendment. The issue of counsel’s effectiveness at trial can be an issue on appeal only if it was properly raised in the trial court below. Appellant does not contend that the question of counsel’s effectiveness was ruled on by the trial court and a cursory review of the record does not reflect that the issue was raised below. See Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981). Counsel has been directed by Per Curiam Order to appear on Monday, January 27, 1992, at 9:00 a.m. to show cause why he should not be held in contempt of this court for failure to file a timely appellant’s brief in this case. If information is adduced at that proceeding which indicates that counsel cannot provide effective assistance of counsel on appeal, appellant Fellows’ motion will be reconsidered. See Bogard v. State, 307 Ark. 427, 820 S.W.2d 276 (1991).
Motion denied; show cause order issued. | [
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Per Curiam.
The petitioner was the plaintiff in a suit filed against Arkansas Power and Light Company (AP&L) and others in the chancery court. That suit alleged illegality of a settlement, entered into among the defendants, having to do with AP&L’s liability for a portion of expenses of building the Grand Gulf power generator. In response to a motion to dismiss the suit, the chancellor entered an order on October 15,1985, recognizing the exclusive jurisdiction of the Arkansas Public Service Commission (A.P.S.C.) in utility rate cases but refusing to dismiss the petitioner’s suit until the court was satisfied the petitioner had had an adequate opportunity to exhaust his remedies before the A.P.S.C.
The petitioner then demanded an immediate hearing before the chancellor claiming that AP&L would shut off electricity being used by the petitioner and those being represented by him when they refused to pay rates deemed by them to be illegal. The chancellor denied the motion for an immediate hearing. His order noted that the petitioner had been allowed to participate in pertinent hearings before the A.P.S.C. and that decisions made at those hearings were appealable to the Arkansas Court of Appeals pursuant to Ark. Stat. Ann. § 73-229.1(b) (Supp. 1985). The chancellor also noted that under A.P.S.C. regulations the petitioner and those represented by him were in no danger of having their electric power shut off until all hearings on the disputed rate were ended.
The petitioner filed a petition for a writ of mandamus in this court on November 20,1985, asking that we order the chancellor to proceed with the case. With the petition the petitioner filed a motion asking that we expedite the matter. We denied the writ on November 25, 1985, without comment. On December 2, 1985, the petitioner filed a motion asking that we reconsider our decision in light of his brief filed on November 25, 1985.
In both the mandamus petition and the brief the petitioner contends his cause is an “illegal exaction” suit permitted by Ark. Const, art. 16, § 13. He cites a number of cases in which we have held or said that an illegal exaction suit is one which may proceed despite the existence of other adequate remedies. No case is cited, however, in which this court has ordered a trial court to hear an illegal exaction suit in spite of the existence of other remedies.
Nothing in the petitioner’s brief convinces us we were incorrect. While it is true we have been liberal in permitting illegal exaction suits, see, e.g., Nelson v. Berry, 242 Ark. 273, 413 S.W.2d 46 (1967), we have held that an illegal exaction complaint was not proper where exclusive jurisdiction of the underlying matter was conferred on the circuit rather than the chancery court. Curry v. Dawson, 238 Ark. 310, 379 S.W.2d 287 (1967).
More to the point, mandamus is a discretionary remedy which will be granted only when the petitioner has shown “a clear and certain legal right to the relief sought and no other adequate remedy.” Girley v. Wood, 258 Ark. 408, 525 S.W.2d 454 (1975). See also, Naylor v. Goza, 232 Ark. 515, 338 S.W.2d 923 (1961), in which we cited with approval authority for the point that the “other adequate remedy” may be an appeal.
Reconsideration denied.
Purtle, J., not participating. | [
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Josephine L. Hart, Special Justice.
Deep South Construction Company, Inc. and R.M. Courson, Inc., Appellees, filed an action for injunction against Patsy Thomasson, et al. in their representative capacities as members of the Arkansas Highway Commission and Henry Gray as Director of the Highway Commission in the Chancery Court of Pulaski County, Arkansas, seeking an injunction against the Arkansas State Highway Commission and the Arkansas State Highway and Transportation Department prohibiting them from awarding a construction contract on Job No. 2660 in Drew County, Arkansas. A temporary injunction was entered enjoining the Arkansas Highway Commission and the Arkansas State Highway and Transportation Department from entering into a contract with Appellant, APAC-Mississippi, Inc. APAC intervened alleging that they were the apparent low bidder and entitled to receive the contract. It is undisputed that Appellant, APAC, submitted a low bid of $2,017,213.85 and that the next lowest bid was Appellee with a bid of $2,036,095.90.
The controversy presented involves Act 102 of 1977, commonly referred to as the “Preference Statute.” Appellees, Deep South Construction Company, Inc. and R.M. Courson, Inc., contended in Chancery Court that although Appellant’s bid was the lowest dollar bid, they were entitled to the contract because they were the next lowest bidder and fell within the provisions of Act 102 of 1977 and that Appellants had not complied with Act 102. Act 102 gives complying bidders the contract if their bid is less than 3% above the lowest bid, provided that the lowest bidder has not complied with Act 102.
Both Appellant and Appellee filed motions for summary judgment. The Chancellor entered summary judgment for Ap-pellee, dissolved the temporary injunction but declared that Act 102 applied to the Highway Commission; found that APAC failed to comply with the provisions of Act 102 and upheld the constitutionality of Act 102.
APAC appealed contending the following: (1) that provisions of Act 102 of 1977 do not apply to contracts awarded by the Arkansas State Highway Commission; (2) assuming that Act 102 of 1977 applies to contracts awarded by the Arkansas State Highway Commission that Appellant has complied with the provisions of that Act; and (3) that the Act is unconstitutional.
The pertinent provision of Act 102 as applied in this context gives preference to a bidder who has paid taxes to one or more counties on either real or personal property used or intended to be used in the performance of construction contracts where the next low bid was less than 3% above the lowest dollar bid. Appellant’s assertions that Act 102 should not apply to contracts awarded by the Arkansas State Highway Commission is founded in Section 1 of Act 102 which provides:
In awarding contracts covered by the provisions of Act 159 of 1949, as amended, by Act 183 of 1957, bids of contractors who have satisfactorily performed prior contracts, and who have paid taxes for not less than two (2) successive years immediately prior to submitting a bid under the Arkansas Employment Security Act, and amendments thereto, and either the Arkansas Gross Receipts Act and amendments thereto or the Arkansas Compensating Tax Act and amendments thereto, on any property used or intended to be used for or in construction or in connection with the contractors construction business, and further within the two (2) year period have paid any taxes to one (1) or more counties [school districts, or municipalities] of the State of Arkansas on either real or personal property used or intended to be used in performance of or in connection with construction contracts, shall be deemed a better bid than the bid of a competing contractor who has not paid such taxes, whenever the bid of the competing contractor is less than three percent (3%) lower, and the contractor making a bid as provided by this Act which is deemed the better bid, shall be awarded the contract.
Appellant argues that Act 102 only applies to contracts covered by the provisions of Act 159 of 1949. An exact reading of Act 102 limits application of that Act to contracts “covered by Act 159 of 1949, as amended, by Act 183 of 1957 . . .”
Act 159 provides the procedure to be followed by the State when letting contracts for making permanent improvements where the estimated costs exceeds ten thousand dollars. Nothing in Act 159 of 1949 refers to the Highway Commission but deals with the general procedures to be followed by public agencies entering into contracts.
Appellant’s argument that Act 159 excludes the Highway Commission from the provisions of that Act rests solely on an amendment to Act 159 which was enacted in Act 370 of 1977, the same legislative session which enacted Act 102. The preamble of Act 370 of 1977 states “An Act to Amend Section 2 and Section 5 of Act 159 of 1949, to Allow for the Downward Negotiation of Bids for Public Buildings and Improvements in Those Instances Where All Bids Exceed the Amount Appropriated for Such Projects, To Exclude Certain Construction Work; and for Other Purposes.”
Section 2 of Act 370 states:
“Section 5 of Act 159 of 1949 is amended to read as follows:
Section 5. The provisions of this Act shall not apply to contracts awarded by the Arkansas State Highway Commission for construction or maintenance of public highways, roads or streets, under the provision of Act 65 of 1929, as amended, and laws supplemental and amendatory thereto . . .”
Appellant urges that Act 370 passed in 1977 which amended Section 2 and Section 5 of Act 159 has the effect of changing Act 159 to the same effect as if it had been originally enacted with the exclusion of highway contracts. Appellant seeks to give the plain meaning to the language without regard to the intent of the legislature. In support of this position, Appellant argues that Act 65 of 1929, which relates to construction of state highways, should apply and is in conflict with Act 102. Act 65 provides in Section 18 and 21 that all contracts shall be “let to the lowest bidder.”
A closer inspection of the background and purposes of Acts 102, 159 and 370 does not support Appellant’s contentions.
The basic preference provisions of Act 102 were originally found in Act 264 of 1961. Act 264 was found to be unconstitutional in Rayco Construction Company v. Vorsanger, 397 F. Supp. 1105 (E.D. Ark. 1975) and Act 102 was created to comply with the dictates of the Federal Court ruling and to give a constitutionally sound base to the preferential statutes which had previously been enacted as Act 264. The original preference Act, Act 264, stated, as does Act 102, that it applied to all contracts governed by Act 159 and would therefore apply to the State Highway Commission. No indication was given in Act 102 that it would not apply to the Highway Commission. If that was the intention of the Legislature, that exclusion should have been placed on the face of the Act.
A further reading of Act 370, which amends Act 159, states in its preamble that the purpose of the Act was to “Allow for the Downward Negotiation of Bids for Public Buildings and Improvements. . . .” Section 1 provides for downward negotiation and Section 2 excludes Arkansas Highway Commission contracts from Act 159. Given the stated purpose of Act 370, this exclusion should be read only to remove highway contracts from the downward negotiation provisions and not from the requirements of the formal bidding procedure set forth in Act 159.
Further, Acts 370 and 102 were both passed in the 1977 Legislative Session. Inasmuch as they were passed at the same time, it is clear that the drafters intended that Act 102 would apply to all contracts included in Act 159 as that Act read before the amendment set out in Act 370. Any other reading of these Acts would repeal the application of 102 through an indirect manner and would effect a “repeal by implication” which is not favored in statutory interpretations.
Secondly, Appellant argues that even if Act 102 is applicable to contracts awarded by the State Highway Commission, that it has complied with the Act by paying taxes which went to one or more counties and thus qualifies for the preference equally with Appellee and should therefore be awarded the contract. Act 102 provides that in order to qualify as a “preferential contractor”, the bidder must, in addition to other things, pay “any taxes to one or more counties, school districts or municipalities of the State of Arkansas on either real or personal property used or intended to be used in performance of or in connection with construction contracts ...”
When Appellant submitted a bid on Job No. 2660, it certified that it had paid Arkansas real or personal property tax in Chicot County. The tax records of Chicot County show that Appellant had never assessed such taxes until 1985. Appellant now contends that the payment of vehicle registration fees and motor fuel taxes under an agreement with the State of Mississippi, a portion of which is eventually paid to counties in Arkansas is sufficient payment to meet the requirement of Act 102 which provides that “. . . contractors . . . have paid any taxes to one (1) or more counties, [school districts or municipalities] of the State of Arkansas on either real or personal property used or intended to be used in performance of or in connection with construction contracts . . .”
We find that payment of taxes under the Arkansas Gross Receipts Act or the Arkansas Compensating Tax Act or other interstate tax agreements does not meet this requirement. Appellant certified at the time it placed the bid it had complied with this Act by paying taxes in Chicot County. It is now undisputed that no taxes were paid directly to Chicot County by Appellant. Obviously, the legislative intent in this instance was that payment of taxes be made directly to the county tax collector and not to a state agency which would ultimately remit a portion of taxes collected by the State of Arkansas to each county.
Appellant’s third and final argument is that Act 102 is unconstitutional. Appellant contends that the equal protection clause forbids invidious discrimination by an agency of government between United States citizens. They argue that 102 violates the Fourteenth Amendment to the United States Constitution because it affords unequal, and arbitrary treatment among contracting companies with competing bids for a particular job and it affords such treatment without a rational basis for doing so. Appellant and Appellee both contend that economic legislation such as the case at bar is subject to a rational basis test. Appellant relies primarily on Rayco Construction Company, Inc. v. Vorsanger, supra, which held that Act 264 of 1961, the predecessor to Act 102, was unconstitutional. Act 102 is substantially different from Act 264. Act 264 contained criminal sanctions and required prior performance of public contracts. Rayco, supra, held Act 264 of 1961 unconstitutional because it violated due process in providing for criminal sanctions. The Court in Rayco, supra, also stated that the Act violated the equal protection clause. There the Court stated:
As to the property ownership and tax payment criteria, we will say first that it is highly questionable today whether a state can constitutionally differentiate between contractors on the basis of property ownership or tax payments. Certainly, such a differentiation can be upheld only by a showing of a sufficient state interest to justify it.
We find, as did the Court in Rayco, supra, that a state may validly differentiate between contractors provided it has a legitimate interest and the classification has some rational basis. Here, the State has an interest to provide safeguards and procedures where public funds are expended for highway purposes. Also, the State has an interest in granting a preference to those who contribute to the State’s economy through construction activities within the State. The State has a legitimate and substantial interest in granting the preference and the criteria established in 102 are reasonable and non-discriminatory, thus providing a rational basis for this Act.
We affirm.
George Rose Smith, J., concurs.
Purtle and Hays, JJ., not participating. | [
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Darrell Hickman, Justice.
Robert Futch shot and killed his former wife, Bonnie Futch, at her mobile home in Poinsett County, Arkansas. He was convicted of first degree murder and sentenced to life imprisonment. Futch argues that statements he made to police officers before he was warned of his rights should have been excluded and that the state should not have been allowed to impeach his testimony with a prior statement. We find no prejudicial error and affirm.
The authorities first learned of the incident by a telephone call from Futch’s sister in Arizona. They were told that there had been a shooting at Mrs. Futch’s residence and the investigating officers knew nothing more. They proceeded to the residence and knocked on the door. Futch answered and said, “Can I help you?” Officer Fleming asked if everything was all right and Futch said it was. The officers asked if his wife was home and Futch said, “Yes, sir, she is, she is dead.” They asked, “Who shot her?” and Futch replied, “I did.”
The trial judge properly permitted introduction of these statements. The fact that Futch was not given the warning of his rights provided for in Miranda v. Arizona, 384 U.S. 436 (1966), does not preclude the use of this evidence. Futch was not in custody, nor was the investigation focused on him. Initially the officers did not even know if a killing had occurred. In Miranda the Court stated:
The principles announced today deal with the protection which must be given to the privilege against self-incrimination when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way.
* * * *
General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. . . .Insuch situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.
In three very similar cases we have held such statements are admissible. Ward v. State, 272 Ark. 99, 612 S.W.2d 118 (1981); Chenault v. State, 253 Ark. 144, 484 S. W.2d 887 (1972); Stout v. State, 244 Ark. 676, 426 S.W.2d 800 (1968). The trial court also admitted two statements Futch made while he was in the police car en route to the station. Officer Toddy testified that Futch was not questioned and that he spontaneously stated, “I did what I had to do.” Toddy testified Futch also said at the station, “he had ended his problem, that he didn’t have a problem anymore.” Futch argues broadly that all statements should have been excluded, but does not contend that he was questioned by Toddy; there is no evidence that he was. The trial court was not wrong, then, to permit these statements to be admitted. Berna v. State, 282 Ark. 563, 670 S.W.2d 435 (1984).
When Futch arrived at the station and was given his Miranda warnings, he said he wanted to talk to a lawyer. Ignoring this, an officer proceeded to question him and took a statement from him. The trial judge properly excluded this statement as taken in violation of Edwards v. Arizona, 451 U.S. 477 (1981). Once a suspect in custody indicates he wants to talk to a lawyer, all questioning must cease and cannot be resumed by the state. State v. Branam, 275 Ark. 16, 627 S.W.2d 8 (1982); Dillard v. State, 275 Ark. 320, 629 S.W.2d 291 (1981).
Both Futch and Frances English, Futch’s cousin who was present in the home and witnessed the shooting, testified. Futch said he had been drinking heavily that day. He called his former wife and wanted to talk to her. She agreed to let him come over. Futch arrived on the afternoon of July 29,1984, between 2 and 4 p.m. Frances English was there with her daughter, son-in-law and grandchildren. Futch talked with them for a while, then English’s daughter, son-in-law and grandchildren left. According to Futch, he got a gun out of the closet in the bedroom of the trailer because he was afraid the children would find it. He returned to the kitchen, was sitting at a table, and asked Bonnie to sit down. He said she said something smart to him, and he just shot her. He said he could not remember any more. He denied any intention of going there to kill her or even contemplating shooting her. Frances English said she did not see Futch with a gun until she heard Bonnie say, “Oh, my god, Bob, don’t do this.” When she saw that Bonnie was shot, English ran outside. Futch followed and persuaded her to return. They called his sister in Arizona and Futch told her that he had shot Bonnie.
This brings us to the second issue. On cross-examination the state asked Futch if he remembered talking to Officer Jim Furnish. Futch said he did not. Then the state asked, “And you don’t remember telling him that you were sorry that you shot the little girl, but she needed it.” (Italics supplied.) Futch said no. The defense attorney objected to the questioning. After the defense rested, the state announced that it would call Officer Furnish on rebuttal to testify that Futch had said “he hated to do it to the little girl, but she needed it.” (Italics supplied.) This officer had testified at the suppression hearing that Futch had said “he hated to do it to the little girl, but he did what he had to do.” (Italics supplied.) This is one of the statements that the trial court suppressed from the case-in-chief.
After Officer Furnish testified on rebuttal that Futch had said that Bonnie Futch “needed it,” the defense attorney objected that he had not been furnished with a copy of this new version of the statement before trial and that the statement had been ruled inadmissible. In Harris v. New York, 401 U.S. 222 (1971), the United States Supreme Court ruled that the state could properly impeach the defendant’s credibility on cross-examination with earlier statements he made which conflicted with his trial testimony if the statements were trustworthy. On appeal Futch argues that Officer Furnish’s testimony does not meet the Harris requirements for two reasons. He contends that the statement testified to by Officer Furnish was not inconsistent with his trial testimony and that the testimony was not trustworthy because Officer Furnish changed his version since the suppression hearing.
If Futch did indeed say that Bonnie Futch “needed” killing, that would certainly contrast with his testimony at trial that he just shot her while he was drunk because she made a smart remark and that he had not intended to do it. Whether or not Officer Furnish’s testimony was credible was an issue for the jury. The defense cross-examined him and he admitted that he had given a different version at the suppression hearing. It was for the jury to decide which version was the truth. Futch also argues that he was prejudiced by the trial court’s failure to give a cautionary instruction which would have told the jury that the statement was to be considered only for impeachment purposes and not as substantive evidence of Futch’s guilt. The trial court agreed to give the instruction but evidently forgot. Between the time the court offered to give it and the time Officer Furnish testified there was another witness who testified. We find that it was incumbent upon the defense to remind the trial court to give the instruction. Furthermore, the jury had already heard evidence that Futch had admitted the killing. We find no prejudicial error in failing to give the limiting instruction.
The trial court found no substantial difference in the two statements. We agree the disparity is so slight that it amounts to the classic distinction without a difference. Either statement could be used, arguably, to show that Futch had the necessary intent to support a conviction for first degree murder. We think the trial court’s decision was not clearly wrong or an abuse of discretion.
Under Ark. Stat. Ann. § 43-2725 (Repl. 1977), as put into effect by our Rule 11 (f), we consider all objections brought to our attention in the abstracts and briefs in appeals from a sentence of life imprisonment or death. In this case we find no prejudicial error in the points argued or in the other objections abstracted for review.
Affirmed.
Purtle, J., not participating. | [
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David Newbern, Justice.
The question presented here is whether there is a limit on the time within which a court may grant a timely motion for a new trial. We hold that the trial court loses jurisdiction to rule on the motion ninety days after the judgment is filed with the clerk. Therefore, we reverse the court’s granting of the new trial motion on July 1,1985, with respect to a judgment filed February 4, 1985.
Ark. R. Civ. P. 59 is devoted to the subject of the new trial motion, and it contains short limits on moving for and responding to the motion for a new trial after a judgment. No provision is made in that rule for requiring the court to rule on the motion within a stated time. The appellant relies instead on Ark. Stat. Ann. § 27-2106.4 (Repl. 1979). That statute required that the moving party request a hearing on the new trial motion within thirty days from filing the motion. It provided further that unless the motion had been “presented” and the court had taken it under advisement within the thirty-day period the motion would be deemed to have been disposed of at the end of the thirty days, and the time for filing a notice of appeal would begin then.
That statute has obviously been superseded by Ark. R. App. P. 4(c) and its very similar provisions on when time begins to run on filing a notice of appeal after a motion for a new trial has been made or ruled on. However, the statute contained as its last sentence the following not found in the rule:
The expiration or lapse of a term of court or commencement of a subsequent term shall not affect the power of the court to take any action herein provided, or the time for filing notice of appeal.
The appellee argues that sentence favors his position, as it suggests there are no limits at all on when the court must rule on the new trial motion. We disagree because ruling on the motion is not “any action herein provided” as it is not governed by the statute. Additionally, we held in Jones v. Benton County Circuit Court, 260 Ark. 893, 545 S.W.2d 621 (1977), that the court could not rule on a new trial motion when the term of court in which it was made had ended and there was no evidence that the motion had been “presented” or “taken under advisement” within the time prescribed in § 27-2106.4. See also Smith v. Boone, 284 Ark. 183, 680 S.W.2d 709 (1984).
While we are no longer governed by terms of court in this respect, we do have a rule providing that a court must act within ninety days of the filing of the judgment with the clerk if it is to modify or set aside its judgment, Ark. R. Civ. P. 60(b), unless certain conditions, not relevant here, exist. Ark. R. Civ. P. 60 (c). Although these provisions are not found in Rule 59, they apply to the power of the court to grant a new trial. The granting of a new trial necessarily involves the setting aside of any judgment entered in the case. Rule 60(c) clearly recognizes that fact when it refers to grounds for setting aside a judgment after ninety days from its filing “[b]y granting a new trial” and “[b]y a new trial granted.” See Rule 60(c)(1) and (2).
Reversed.
Purtle, J., not participating. | [
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Per Curiam.
The appellants have filed a motion for a rule to require the Clerk to file the record in this case. It appears that the record was tendered a day late. The appellants’ attorney, James E. Davis, accepts full responsibility for the delay.
This is a sufficient reason for accepting the record. See our per curiam opinion of February 5, 1979. 265 Ark. 964. The motion is accordingly granted.
A copy of this opinion will be sent to the Committee on Professional Conduct.
Purtle, J., not participating. | [
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David Newbern, Justice.
The question presented in this appeal is whether the statute of limitations began to run when the battery was allegedly committed or when the extent of resulting injuries was discovered. We hold it began to run when the tort was allegedly committed, and thus the judge was correct in dismissing the action.
Margaret McEntire had silicone implants placed in her breasts in 1978. She was, at that time, married to the appellee. Her complaint alleged that in 1982 she was severely beaten by the appellee, and the battery caused an implant to burst, leak, and result in serious permanent injury, although it was unbeknownst to her until later. Margaret thereafter was divorced from the appellee and married J. A. McEntire, III. She alleged she discovered the extent of her injury from the 1982 battery through surgery performed August 27, 1984. The appellants’ complaint seeking damages for personal injury for Margaret and for loss of consortium for J. A. McEntire, III, was filed on February 4,1985. The action was dismissed because Ark. Stat. Ann. § 37-201 (Supp. 1985) requires that an action for battery be brought within one year after the cause of action accrues.
1. The Appellants’ Argument
The appellants contend the statutory one-year period did not begin to run until the extent of the injury from the battery became known. In support of this proposition they cite the four cases we now discuss.
Urie v. Thompson, 337 U.S. 163 (1949), is cited as perhaps being the first case to use the time-of-discovery rule to determine when a cause of action accrues for purposes of applying a statute of limitations. There a worker’s cause of action was held to have accrued when the fact of his injury, i.e., the contraction of silicosis, became known to him.
In Raymond v. Eli Lilly & Co., 371 A.2d 170 (N.H. 1977), the plaintiff alleged that use of an oral contraceptive manufactured by Lilly had caused optical hemorrhages which resulted in her becoming legally blind. She did not learn the cause of the hemorrhages until more than six years (the limitations period) had passed. In an opinion answering a question of New Hampshire law certified by the United States Court of Appeals for the First Circuit, Chief Justice Kenison reviewed many products liability cases with respect to statutes of limitations and the time-of-discovery rule. His concise statement was:
We believe that the proper formulation of the rule and the one that will cause the least confusion is the one adopted by the majority of the courts: A cause of action will not accrue under the discovery rule until the plaintiff discovers or in the exercise of reasonable diligence should have discovered not only that he has been injured but also that his injury may have been caused by the defendant’s conduct.
In US. v. Kubrick, 444 U.S. 111 (1979), a Federal Tort Claims Act case, the claimant alleged that neomycin had been negligently prescribed as a remedy for his infected leg and had caused him to lose his hearing. The Supreme Court held the cause of action accrued when the claimant learned not just of his injury and its cause, but when he further was given reason to suspect or learned from another doctor that the prescribing doctor had been negligent. The Federal Tort Claims Act limitation provision thus may be tolled for a period even longer than Chief Justice Kenison’s opinion provided with respect to a New Hampshire statute of limitations.
None of these cases deals with the situation with which we are confronted. Here the appellant, Margaret McEntire, knew she had been battered. Her complaint described the attack as “willful, intentional and barbarous.” She obviously knew by whom she had been struck and that she was injured. Her only alleged lack of knowledge was as to the extent of her injuries.
The appellants’ final citation is Everhart v. Rich’s, Inc., 229 Ga. 798, 194 S.E.2d 425 (1972). In that case the plaintiffs had purchased fiberglass draperies which disintegrated over a long period placing fiberglass particles in their home environment and causing illness. The Georgia Supreme Court held that, where the alleged wrong is breach of a duty to warn of a hazardous product, the cause of action does not accrue until an injury is ascertainable. The opinion points out that in such a case the tort will be regarded as continuing until eliminated, for example, by warning of the hazard. The appellants in the case now before us ask us to hold that the continuing leakage of the breast implant after the alleged battery is analogous to the disintegration of the draperies. We decline to do so. The continuing tort theory in Everhart v. Rich’s, Inc., supra, was used to support tolling the statute of limitations until injury, as opposed to its extent, was ascertained. The Georgia court’s opinion distinguishes facts similar to those before us:
On a tort claim for personal injury the statute of limitation generally begins to run at the time damage caused by a tortious act occurs, at which time the tort is complete. In such cases the true rule in this State was expressly recognized to the effect that in an action for personal injuries the statute of limitation commences at the time the damage or injury is actually sustained. In such torts, where the injury is occasioned by violent external means, the result of the previous violation of a duty, no problem arises in fixing the date and time when the statute begins to run.
2. The Arkansas Cases
In Field v. Gazette, 187 Ark. 253, 59 S.W.2d 19 (1933), a linotype operator alleged his employer had negligently failed to provide a safe workplace resulting in his contracting lead poisoning. Within three years (the limitations period) of going to work for the defendant, the plaintiff knew he had the malady because he had some sores on his feet resulting in amputation of a toe and ultimately a foot. The disease progressed, resulting in even more extensive leg amputations, more than three years after he became aware of having the disease. We held the statute of limitations began to run when the injuries were sustained “ ‘although their results may not be then fully developed,’ ” quoting 130 R.C.L. § 30, p. 765 (1917).
In Faulkner v. Huie, 205 Ark. 332, 168 S.W.2d 839 (1943), the plaintiff alleged in 1941 that as a result of a 1935 automobile accident he had lost his hearing in one ear. He contended he did not learn of this injury until after the applicable three-year statute of limitations had run. Citing and quoting § 899 c. of the Restatement of Torts, we held the statute began to run when the accident occurred because a battery or negligently inflicted personal injury “ \ . . is complete upon physical contact even though there is no observable damage at the time of contact.’ ” 205 Ark. at 335, 168 S.W.2d at 840. We distinguished two nuisances cases, C., R. I. & P. Ry. Co. v. Humphreys, 107 Ark. 330, 155 S.W. 127 (1913), and Brown v. Arkansas Central Power Co., 174 Ark. 177, 294 S.W. 709 (1927), saying that when a landowner uses his land in a way that is not unlawful but which later results in injury to another, the causes of action accrue when the injury is perceived or could reasonably be ascertained by the plaintiff. We also distinguished the medical malpractice case in which a foreign object is left in the surgical patient’s body, pointing out that a physician has a duty to disclose such misconduct and each day it continues constitutes a “fraudulent concealment.” The latter situation is now governed by a statutory limitations exception. Ark. Stat. Ann. § 34-2616 (Supp. 1985).
3. Conclusion
The comment in Restatement of Torts, Second, § 899 c. (1965), says as a general rule a statute of limitations does not begin to run until the tort is complete, and that a “battery is complete upon physical contact, even though there is no observable damage at the point of contact.” When the battery in this case allegedly occurred, Margaret McEntire knew the tort had occurred, knew who the perpetrator was, knew she was injured, at least to some extent, and she knew of the causal relationship between the battery and her injury. If we were to hold that a prospective battery plaintiff could wait until the complete extent of her injuries was known, it would seriously interfere with one policy reason for having a statute of limitations. The purpose of a statute of limitations is to encourage the prompt filing of claims by allowing no more than a reasonable time within which to make a claim so a defendant is protected from having to defend an action in which the truth-finding process would be impaired by the passage of time. Zeleznick v. U.S., 770 F.2d 20 (3rd Cir. 1985), citing U.S. v. Kubrick, supra. The possible effects of any injury may be as limitless as the ripples in a lake into which a stone has been cast. Lines have to be drawn. Once a prospective plaintiff knows she has been injured by a wrongdoer her cause of action has accrued. She is in a position to investigate the extent of the injury and to present evidence of its present and probable future extent. If the cause of action is for battery, it must be brought within the one-year statutory period.
Affirmed.
Purtle, J., not participating. | [
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John I. Purtle, Justice.
This case arises from the Logan County (Northern District) Circuit Court’s holding that an ordinance by the quorum court prohibiting nepotism by elected county officials was a valid and properly adopted ordinance. The trial court reviewed the case on a petition for writ of certiorari.
Appellant challenges the trial court’s decision on grounds that the quorum court had no authority to pass the ordinance; that it was not passed or published according to law; and that the emergency clause was ineffective. We hold the trial court was correct on all alleged errors, except the emergency clause.
Five or six days prior to its meeting on December 11, 1978, the county clerk mailed the members of the quorum court an agenda which stated nepotism was a matter to be considered. The quorum court had previously passed Ordinance No. 15 on the same subject. At the meeting on December 11, 1978, the quorum court adopted Ordinance No. 20 which was the same as Ordinance No. 15 except for a change in the title and repealing clause. The journal of the proceedings of the Logan County Quorum Court reflects Ordinance No. 20 was called for discussion and one member moved to suspend the rules and place Ordinance No. 20 on the calendar for action on that date. The motion was seconded and the vote to suspend the rules was unanimous. The ordinance was then read for the first time upon motion and second. The rules were suspended for a second and third reading of the ordinance, and it was then passed unanimously. The emergency clause was read only one time before the vote, and it passed unanimously. This session of the quorum court was on a Monday night and the first publication was made in the local weekly newspaper on December 18, 1978. Both the ordinance and the proof of publication were included in the record. The ordinance did not have the word “title” written on it, but it did contain a title. The questioned ordinance had these words following the title: “BE IT ORDAINED BY THE LOGAN COUNTY QUORUM COURT.” The county judge approved the ordinance on December 14, 1978.
The case was submitted to the court on stipulation of the facts and briefs. The trial court determined the quorum court had subject matter jurisdiction, and the ordinance was passed and published according to law.
Amendment No. 55 to the Constitution of the State of Arkansas states:
§ 1. Power of quorum court. — (a) A county acting through its Quorum Court may exercise local legislative authority not denied by the Constitution or by law.
Ark. Stat. Ann. § 17-3801 (Supp. 1979) states:
As provided by Amendment No. 55, Section 1, (a) of the Arkansas Constitution, a county government acting through its Quorum Court may exercise local legislative authority not expressly prohibited by the Constitution or by law for the affairs of the county . . .
We do not find any provision in the constitution nor any law enacted by the General Assembly to prohibit a quorum court from enacting nepotism statutes or ordinances. Therefore, we hold the quorum court had the authority to approve this legislation.
Appellants contend the ordinance was not properly passed nor published according to law. Ark. Stat. Ann. § 17-4003 (Supp. 1977) states:
(2) Style Requirements of Ordinances and Amendments to Existing Ordinances, (a) General Provisions. No ordinance or amendment to an existing ordinance passed by a Quorum Court shall contain more than one (1) comprehensive topic; and shall be styled[:] ‘Be it Enacted by the Quorum Court of the County of , State of Arkansas; an Ordinance to be Entitled:’. Each ordinance shall contain such comprehensive title and the body of such ordinance shall be divided into articles, sequentially numbered, each expressing a single general topic related to the single comprehensive topic.
Ark. Stat. Ann. § 17-4005 (Supp. 1977) states:
(1) Defined. An emergency ordinance or emergency amendments to existing ordinances may be introduced in the manner provided by law for the introduction of ordinances. An emergency ordinance may be enacted only to meet public emergencies affecting life, health, safety, or the property of people.
(2) * * *
(3) Declaration of Emergency. An emergency ordinance must contain a declaration that an emergency exists and define the emergency. All emergency ordinances shall be designated ‘Emergency Ordinance.’
(4) Readings and Publication. An emergency measure does not require separate readings or publication prior to passage; provided, however, that publication shall be initiated within two (2) calendar days, excepting holidays, after approval of the emergency measure by the County Judge.
* * *
From the above statutes it can be seen the conflict arises by .the fact that the ordinance in question stated “Be it Ordained by the Logan County Quorum Court.” Thus it contained the word “ordained” rather than the statutorily prescribed word “enacted.” The word “ordain,” as defined by Webster’s New World Dictionary, means to “appoint; decree; establish; enact.” The same dictionary defines the word “enact” to mean “to make into law; pass (a law); decree; ordain.” Thus we have the word “enact” to mean ordain and the word “ordain” to mean enact. No one could be misled by the use of the word “ordain” in place of “enact.” We must then consider whether such technicality voids the ordinance. We have long held that statutory construction requires a common sense approach. Dozier v. Ragsdale, 186 Ark. 654, 55 S.W. 2d 779 (1932). When the General Assembly uses words which have a fixed and well-known signification, they are presumed to have been used in that sense. State v. Jones, 91 Ark. 5, 120 S.W. 154 (1919). The rule of strict construction will not be used to defeat the obvious intent of the General Assembly. Ark. State Highway Commission v. Butler, 105 F. 2d 732 (1939). The pri mary rule in construing a statute is to ascertain and give effect to the intent of the General Assembly and this intent is obtained by considering the entire act. Perry Co. v. House, 196 Ark. 317, 117 S.W. 2d 342 (1938). If the language is ambiguous, we consider the subject matter of the act, object to be accomplished, purpose to be served, as well as the remedy and consequence. Holt v. Howard, 206 Ark. 337, 175 S.W. 2d 384 (1943).
We have held that substantial compliance with publication requirements is sufficient as it relates to Initiative and Referendum amendments. Johnson v. Munger, 260 Ark. 613, 542 S.W. 2d 753 (1976). A liberal construction is accorded an act in order to effectuate its purpose. Leigh v. Hall, 232 Ark. 558, 339 S.W. 2d 104 (1960). In Leigh, we further held substantial compliance with the law was sufficient to validate an election. We also adhered to the rule of substantial compliance in Vinsant v. Knox, 27 Ark. 266, (1871); Trussell v. Fish, 202 Ark. 956, 154 S.W. 2d 587 (1941); and Cain v. McGregor, 182 Ark. 633, 32 S.W. 2d 319 (1930), where we stated: “The whole proceeding is statutory, and the statute must be substantially followed in all proceedings.” Further, there is a presumption that the law was followed, and it is incumbent upon those attacking the validity of a statute to show its invalidity. Wilson v. Luck, 201 Ark. 594, 146 S.W. 2d 696 (1941).
In State ex rel Attorney General v. Chicago Mill & Lbr., 184 Ark. 1011, 45 S.W. 2d (1941), and Cooper v. Town of Greenwood, 195 Ark. 26, 111 S.W. 2d 452 (1936), we stated:
It is a well-settled principle of statutory construction that statutes will receive a common sense construction, and, where one word has been erroneously used for another, or word omitted, and the context affords the means of correction, the proper word will be deemed substituted or supplied. This is but making the strict letter of the statute yield to the obvious intent of the legislature.
Statutes will not be defeated on account of mistakes, errors or omissions, provided the intent of the General Assembly can be collected from the whole statute. Hazelrigg v. Board of Penitentiary Commissioners, 184 Ark. 154, 40 S.W. 2d 998 (1931). We have often held that the title of an act is not controlling in its construction even though it is a matter to be considered in determining the meaning of a statute which is otherwise ambiguous. Matthews v. Byrd, 187 Ark. 458, 60 S.W. 2d 909 (1933). Likewise, the language used in the title of an act is not controlling but may play a part in explaining ambiguities in the body of the statute. City of Conway v. Summers, 176 Ark. 796, 4 S.W. 2d 19 (1928). We examine the title of an act only for the purpose of shedding light on the intent of the General Assembly. Lyerley v. Manila School District No. 15, 214 Ark. 245, 215 S.W. 2d 733 (1948).
Ark. Stat. Ann. § 17-4005 (4) (Supp. 1977) provides:
Readings and Publications (Publication). An emergency measure does not require separate readings or publications prior to passage; provided, however, that publication shall be initiated within two (2) calendar days, excepting holidays, after approval of the emergency measure by the county judge.
The above statute requires such ordinances to be published and states the publication shall be initiated within two (2) days (now seven (7) days) after approval by the county judge. The approval by the county judge was on Thursday, December 14, 1978, and it was published in the next issue of the local weekly newspaper. This publication was on Monday, December 18, 1978. With Saturday and Sunday deleted the publication was at least initiated within two (2) days as contemplated by the General Assembly.
Ark. Stat. Ann. § 17-4005(3) (Supp. 1979) states:
Declaration of Emergency. An emergency ordinance must contain a declaration that an emergency exists and define the emergency. All emergency ordinances shall be designated “Emergency Ordinance.”
Since the statute requires an emergency to be defined, we now examine the present ordinance to determine whether an emergency is defined. Section 4 of the ordinance states:
Whereas. County Officers must have Deputies and employees necessary to carry out the essential activities of County Government, it is hereby found that it is in the best interest of County Government that no person be employed as a Deputy or County Employee who is related by affinity or consanguinity within the third degree to any elected official. Therefore, an emergency is hereby declared to exist and this Ordinance being necessary for the immediate preservation of public peace, health and safety shall be in full force and effect from and after its passage and approval.
We cannot find an emergency defined in the above quotation. It has been a fact for more than 100 years that county officers have used deputies to assist in carrying out their work. Also, during this same time many deputies have been related to the office holder within the third degree of affinity or consanguinity. These facts are very similar to those stated in Gentry v. Harrison, 194 Ark. 916, 110 S.W. 2d 497 (1937), wherein we declared the emergency clause was ineffective. In the Gentry case the emergency clause stated that it was a function of the state government to regulate insurance. That was the emergency relied upon and we held it did not state facts sufficient to constitute an emergency. We do not think that fair-minded and intelligent men might reasonably differ in their interpretation of whether an emergency was stated in the emergency clause of Ordinance No. 20. There simply is nothing in the emergency clause to indicate a real emergency existed. We declare that the emergency clause has failed and the ordinance will take effect as it would have had there been no emergency clause.
Affirmed as modified.
Harris, C.J., not participating.
Fogleman and Byrd, JJ., dissent. | [
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David Newbern, Judge.
This case was appealed to the Arkansas Supreme Court and by that Court assigned to the Arkansas Court of Appeals pursuant to Arkansas Supreme Court Rule 29(3).
The trial court granted summary judgment in favor of Appellee. Appellee’s version of the facts, discerned from affidavits submitted on the motion for summary judgment and from discovery responses, is that Coy White owed Hudspeth Motors, Inc., (Appellee) SI 100.00. White gave Appellee a check to pay the account, and the check was returned for insufficient funds. L. D. Yarbrough, Sales Manager of Appellee, after informing White of the necessity of promptly clearing this indebtedness, agreed to give White a few more days to pay. The extension of time was granted, based on White’s suggestion that Appellee take and “hold” the title to a 1976 Datsun, owned by White, until White could come up with the money. The title to the truck was not assigned on the certificate of title to Appellee. Rather, the certificate of title was simply held by it, to be released upon satisfaction of White’s account.
According to L. D. Yarbrough’s affidavit, John Eaton approached Appellee while Appellee was holding the certificate and informed Mr. Yarbrough that he, Eaton, had purchased the truck from White and then sold it to Appellant, D. L. Adams. Eaton asked Yarbrough to release the certificate, and said he would then bring back a draft from Adams from which Appellee could take sufficient funds to clear White’s account. Yarbrough refused to release the certificate until he, on behalf of Appellee, had the draft in hand. Thereafter, Eaton returned to Appellee with a draft from D. L. Adams Motors made out in favor of “Hudspeth Motor Co.” in the amount of $2325.00, and showing it to have been made in exchange for:
“Datsun 1976 Pickup 836198”
and stating the following condition:
“ODOMETER (MILEAGE) STATEMENT MUST BE ENCLOSED WITH CLEAR NOTARIZED TITLE WITH ALL LIENS (IF ANY) RELEASED”
Appellee does not deny endorsing the draft.
Appellee then admittedly executed an “Odometer Mileage Statement” showing “Hudspeth Motors Inc.” as the seller of the truck. The reason given by Appellee for doing so was that it was a necessary condition to acceptance and payment of the draft. Appellee gave Eaton a check for $1225.00, which was the balance from the draft after subtracting the amount owed to Appellee by White.
The parties agree that thereafter D. L. Adams Motors sold the truck to C. L. Pennington, and that the truck was taken from Pennington by F.B.I. agents who had discovered it was a stolen vehicle.
Pennington brought suit against D. L. Adams Motors for the purchase price he had paid for the truck. Adams im-pleaded Appellee, claiming breach of warranty of title, deceit, and violation of the federal law requiring truthful odometer statements (P.L. 92-513). Judgment was had by Pennington against Adams, and that aspect of the case is not before us. We are concerned only with the claim of Adams, the Appellant, against Hudspeth Motors, Inc., the Appellee.
Appellee moved for summary judgment on Appellant’s claim. Appellee’s motion was accompanied by L. D. Yar-brough’s affidavit, stating that Appellee was not the owner of the truck and had not owned it previously. There were also affidavits by White and Eaton, presented in support of the motion. White stated Appellee had never owned the truck and that Eaton was the one who purchased the truck from White. Eaton’s affidavit said he had never been employed by, or acted as agent for, Hudspeth Motors.
In support of its motion, Appellee argued that these affidavits made it clear that Appellee had never owned the truck, and that proof of such ownership was an essential element of the breach of warranty of title claim.
In response, Appellant filed no counter-affidavits but replied that there was “sufficient evidence” (presumably meaning sworn discovery responses) indicating that Appellee had in fact sold the truck to Appellant. The sworn discovery responses were to the effect that Eaton had represented himself to be the agent of Appellee when Appellant purchased the truck, that Appellee had accepted a draft clearly intended to be payable to appellee as owner of the truck, thus representing itself to be the owner, and that Appellee had represented itself to be the owner of the truck on the odometer statement. Each of these was clearly stated as a fact in verified responses to discovery contained in the record and further supported by exhibits in the record, including a copy of the draft and a copy of the odometer statement.
The trial court granted Appellee’s motion for summary judgment, and the Appellee contends it was proper to do so because Appellant had filed no counter-affidavits.
For the proposition that affidavits as opposed to other evidence in the record, such as discovery responses, are required to support a response to a motion for summary judgment, Appellant cites language from Hughey v. Bennett, 264 Ark. 64, 568 S.W. 2d 46 (1978), which says affidavits are required. The Hughey case, however, can hardly be considered precedent for that point, as there the respondent to the motion did nothing but file a general denial. The record in that case was completely devoid of any affirmative assertions of fact by her.
One has only to look to the statute to see a recitation of circumstances in which affidavits are not required in support of a response to a properly documented motion for summary judgment. Ark. Stat. Ann. § 29-211 (c) (Supp. 1977), says, in part:
The adverse party may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact. ...
If it needs further spelling out, one need only look to Ashley v, Eisely, 247 Ark. 281, 445 S.W. 2d 76 (1969), and Purser v. Corpus Christi State National Bank, 248 Ark. 54, 522 S.W. 2d 187 (1975).
The discovery responses in the case at hand clearly raise questions whether Eaton was Hudspeth Motors’ agent and whether Hudspeth Motors was the owner of the truck. These are undoubtedly material, at least to the breach of warranty of title claim.
Reversed and remanded.
Chief Judge Wright and Judge Pilkinton dissent.
Apparently this motion and the subsequent summary judgment covered all of the theories of action alleged by Appellant against Appellee.
The new Arkansas Rules of Civil Procedure (ARCivP), Rule 56, supplanting the statute which was in effect when the complaint in this case was filed, contains this same provision. | [
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John I. Purtle, Justice.
Appellant and an accomplice were observed by an off-duty policeman stealing hubcaps from a parked Cadillac automobile near 6th and Main in Little Rock, Arkansas. The officer attempted to apprehend the appellant and his accomplice, Wesley, but they took off in another vehicle before the officer was able to take them into custody. The officer saw appellant with two hubcaps in his hand and what he thought was the other two hubcaps in possession of the accomplice as they fled. All four hubcaps were missing from the parked vehicle and the officer stated they threw them out the window of the car as he chased them along the highways. The officer further stated one of the fleeing men pointed a handgun at him as he chased them following the theft. Appellant denied that he pointed a gun at the officer and further stated he had never owned a gun. Therefore, the facts were in dispute.
The two were charged with Theft of Property and Aggravated Robbery. The jury returned a verdict of guilty of Theft of Property and Aggravated Robbery but also found that they did not use a deadly weapon in the incident. The court decided the verdict was inconsistent inasmuch as the jury found them guilty of Aggravated Robbery but specifically found no deadly weapon was used. The court sent the jury back to deliberate and when they returned they delivered the exact same verdict. The court accepted the second verdict and sentenced each of the defendants to 2 years for Theft of Property and 6 years on Aggravated Robbery, as recommended by the jury. Both men appealed. We have previously considered the accomplice’s appeal in Wesley v. State, 265 Ark. 406, 578 S.W. 2d 895 (1979), wherein we reversed and dismissed the conviction of Aggravated Robbery and affirmed the conviction of Theft of Property. The state concedes that the holding in Wesley is binding and they do not argue the Aggravated Robbery point. Therefore, we do not discuss it in this opinion. The other point raised by appellant on this appeal is that the evidence was insufficient to support the verdict on theft of property having a value of more than $100.
The owner of the automobile testified he replaced two hubcaps on the same vehicle from which these were stolen about a year ago at a cost of $75 for the two. The owner further testified that replacement cost for new hubcaps was approximately $340. He frankly admitted he did not know the value of four used hubcaps for his vehicle. There was no other evidence presented as to value of the property allegedly stolen.
Ark. Stat. Ann. § 41-2203 (Repl. 1977) specifies that theft of property of the value of less than $2500 but more than $100 is a class C felony. Ark. Stat. Ann. § 41-2202 (3) (Repl. 1977) defines the amount of a theft as “the amount involved in a theft shall be deemed to be the highest value, by any reasonable standard, of the property or services which the actor obtained or attempted to obtain....” In the case of Polk v. State, 252 Ark. 320, 478 S.W. 2d 738 (1972), we held that where a witness testifying as to value of stolen goods stated the value was “About a Hundred and a Half, Two Hundred” was sufficient to show the value to be in excess of $35. In a case where the owner of a watch testified that when it was given to him it had a price tag of $119 on it we held such testimony was sufficient to show the value of the property. Boone v. State, 264 Ark. 169, 568 S.W. 2d 229 (1978). Since the owner testified the value of two hubcaps was $75, and all four were taken, we feel the proof justifies a finding that the value of the property was in excess of $100. Of course, if you consider his testimony of the cost of replacement of the hubcaps, the proof is far in excess of that required to sustain a conviction under the above statute. For these reasons we affirm as to the Theft of Property and reverse and dismiss as to the Aggravated Robbery.
Affirmed in part, reversed and dismissed in part.
We agree. Harris, C.J., Fogleman and Holt, JJ. | [
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David Newbern, Judge.
This suit is for judgment on two promissory notes and foreclosure of a mortgage which secured the indebtedness evidenced by the notes. The chancellor found the appellants, who were the makers of the notes, were in default, and a foreclosure sale was ordered. The appellants appealed to the Arkansas Supreme Court, alleging the chancellor erred in failing to grant a continuance, in finding the appellants in default, and in allowing an inequitable acceleration pursuant to an acceleration clause in the mortgage. The case was assigned to the Court of Appeals according to Rule 29(3). We reverse on the last of these points. Although not necessary to our decision, we consider the other points raised by the appellants worthy of discussion.
The appellants entered an agreement with Mr. Darby to purchase his farm. They gave him two promissory notes dated November 1, 1977; one in the amount of $532,500 and one for $167,500. The first payment on the larger note to become due October 31, 1978. Only interest was to be paid the first three years on that obligation. The smaller note, however, was to become due and payable in its entirety April 1, 1978.
The farm was conveyed to Rawhide Farms, Inc., which in turn mortgaged it back to Mr. Darby to secure payment of the two notes. The mortgage was signed by appellant Caputo as president of Rawhide Farms, Inc. The smaller note was signed by both appellants, individually. The larger note was signed by Caputo as president of Rawhide Farms, Inc., and by both Caputo and Thornton, individually. The chancellor found, and there was no serious dispute, the mortgage was given to secure both of the notes. The mortgage contained the following clause:
If said indebtedness or any part thereof, principal or interest, shall not be promptly paid when due according to the tenor of said notes and of this mortgage . . . the whole indebtedness hereby secured, whether then due or not, shall immediately become due and payable for all purposes ... at the option of the grantee . . . and this mortgage and security may be foreclosed by judicial proceedings . . .
The appellants paid a portion of the smaller note, but it is undisputed that it had not all been paid as of its due date, April 1, 1978. The chancellor found $67,648.42 outstanding on that note. Extensions were granted by Mr. Darby and by his agents, and the appellants made occasional small payments, one as late as July 20, 1978.
The foreclosure complaint was filed September 5,1978. The appellants secured the services of an attorney, Guy Jones, Jr. The trial was set for January 3,1979, after the case had been continued twice. On January. 2, 1979, Mr. Jones informed the appellants it was necessary for him to be in Fort Smith at another hearing on January 3, and he could not appear with them in Perry ville at the trial of this case. The appellants dismissed Mr. Jones as their counsel and hired Mr. Jack Files who appeared with them January 3. Mr. Files moved for a continuance to allow him to prepare for the hearing and because of surprise that Mr. Darby, who was then still living, was not at the trial. A continuance until January 5, 1979, was granted. On January 5, Mr. Files again moved for continuance, and after considerable discussion among counsel for both sides and the chancellor, the motion was denied.
I.
The first point raised for reversal is the chancellor’s refusal to grant another continuance. The rule in Arkansas is that a motion to continue is addressed to the discretion of the trial judge, and his or her decision will not be overturned unless that discretion is manifestly abused. McMorella v. Greer, 211 Ark. 417, 200 S.W. 2d 974 (1947), and Watts v. Cohn, 40 Ark. 114 (1882). The appellants cite no Arkansas case dealing specifically with withdrawal or discharge of counsel. They cite a very distinguishable Texas decision, Leija v. Concha, 39 S.W. 2d 948 (Tex. Civ. App. 1931), in which counsel were forced to go to trial 30 minutes after being hired, and a Nevada case, Benson v. Benson, 66 Nev. 94, 204 P. 2d 316 (1949), in which the court said that the withdrawal on the eve of the trial of a party’s attorney is not ipso facto a ground for continuance.
In this case, it is clear that one continuance was given the appellants after Mr. Files entered the case. Mr. Files argued he was, between January 2, and January 5, involved in another important case to which he had to devote his time, but the chancellor emphasized that Mr. Files had taken this case knowing the constraints on his time. The chancellor also made clear his conclusion that Mr. Files had presented the case thoroughly and thus no prejudice had resulted to the appellants from the refusal to grant the continuance.
Although it was certainly not the fault of the appellants that they had to go to trial with a lawyer who was not very familiar with their case, the record shows the chancellor made every effort to see they had ample opportunity to present everything that could possibly have supported their defense. We cannot say the chancellor abused his discretion.
II.
The second point raised by the appellants is that the larger note was not due at the time the suit was filed and thus that obligation should not have been considered accelerated. The appellants do not contend the note did not represent an indebtedness secured by the mortgage. For the proposition the larger note should not have been accelerated, the appellants cite Vandergriff v. Vandergriff, 211 Ark. 848, 202 S.W. 2d 967 (1947). That case is not in point as there the only default was failure to pay interest on a note, and the mortgage did not provide for acceleration for failure to pay interest. The appellant’s only other citation in support of this point is Massey v. Tyra, 217 Ark. 970, 234 S.W. 2d 957 (1950), which we do not find at all helpful.
The notes were subject to acceleration as they must be read together with the mortgage. McCormick v. Daggett, 162 Ark. 16, 257 S.W. 2d 358 (1924), and Markel v. Fallin, 161 Ark. 504, 256 S.W. 841 (1923). The chancellor did not err in his determination the larger note was accelerated in accordance with the mortgage clause.
III.
The third point of the appellants is that the finding the larger note was in default was against the preponderance of the evidence. Neither the appellants nor the appellees cite any authority with respect to this point, and thus we need not give consideration to it unless the argument presented by the appellant is otherwise convincing or it is apparent the point is well taken. Hazen v. City of Booneville, 260 Ark. 871, 545 S.W. 2d 614 (1977); Dixon v. State, 260 Ark. 857, 545 S.W. 2d 606 (1977). We need only say the acceleration clause contained in the note becomes irrelevant when read in conjunction with the mortgage, and the fact that the mortgage was signed by the appellants only as representatives of Rawhide Farms, Inc., is also unimportant. To find the appellants should not be held responsible for the terms of the mortgage would require us to say the indebtedness represented by the notes was not that which was secured by the mortgage. The appellants do not, and apparently could not, seriously make that argument.
IV.
The appellants’ fourth point for reversal is that Mr. Darby waived the right to accelerate by accepting late, partial payments. Because they cite Seay v. Davis, 246 Ark. 201, 438 S.W. 2d 479 (1969), we may assume an assertion the acceleration was not made in good faith.
The appellants’ testimony indicated they felt they had an arrangement with Mr. Darby pursuant to which he would go as far as possible to help them buy the farm and be lenient in demanding, or not demanding, strict compliance with the terms of their agreement. Mr. Darby’s actions in accepting late, partial payments on the overdue note gives credence to their argument. But Mr. Darby’s deposition makes it clear he did not intend to be forgiving beyond a point.
Seay v. Davis, supra, was an interpretation of Ark. Stat. Ann., § 85-1-208 (Add. 1961), which provides:
A term providing that one party or his successor in interest may accelerate payment or performance or require collateral or additional collateral “at will” or “when he deems himself insecure” or in words of similar import shall be construed to mean that he shall have power to do so only if he in good faith believes that the prospect of payment or performance is impaired. The burden of establishing lack of good faith is on the party against whom the power has been exercised.
Although that section seems designed to apply only to “acceleration at will” clauses, it was applied in the Seay Case where the mortgage clause was described by the Arkansas Supreme Court as providing for acceleration in the event of default at the option of the holder. The Supreme Court held it was not error for the chancellor to have found bad faith where the holders invoked an acceleration clause because of a late payment. The mortgagors tendered payment 48 hours late, and the mortgagees sought foreclosure. The chancellor found the mortgagees were trying to take advantage of the mortgagors and obtain their down payment — not in good faith.
The important distinguishing factor here is that, unlike the mortgagors in the Seay Case, there is no record that the appellants in the case before us have tendered the amount due. Rather than bad faith, Mr. Darby apparently did try to work with the appellants by extending and taking partial payments on the overdue amount.
This brings us to the question whether the acceptance of these payments was a waiver of the right to accelerate. The law on this question has developed out of cases involving mortgages securing notes to be paid in installments. The most recent expression of the Arkansas Supreme Court on the matter is Philmon, et ux. v. Mid-State Homes, Inc., 245 Ark. 680, 434 S.W. 2d 84 (1968), in which Chief Justice Harris cited with approval language to the effect that, although acceptance of a late payment precludes acceleration because of the lateness of that payment, it is not a waiver of the right to accelerate when default occurs on a subsequent installment. The principle involves there is not applicable here if we confine ourselves to looking at the note which was due, according to its own terms without reference to the mortgage, at the date of the acceleration, as no installments were involved, the note having become due in a lump sum April 18, 1978.
However, in urging us to apply the acceleration clause found in the mortgage, the appellees ask us to view all three instruments together and declare the entire indebtedness due because of the default on the smaller note. When we do that, it becomes clear that the smaller note was designed to be a “down payment” or first installment. We hold that acceptance of the late, partial payments of the smaller note waived the right to foreclose until a subsequent default.
The first interest payment on the larger note became due October 31, 1978 and the second one became due October 31, 1979. This suit was filed on September 5, 1978, and we assume the appellants have, with some justification, not tendered these payments. Thus, the amount due at the time this suit was filed and adjudicated below has grown substantially.
Under these circumstances, where the appellants are at fault for not paying and the appellees for giving them some reason to believe acceleration would not occur, we hold the appellants should, upon remand, be given a reasonable time to make the overdue payments. If the entire amount owed by the appellants to Mr. Darby’s estate, that is, the entire amount of the smaller note plus interest and the payments due on the larger note in accordance with its terms plus interest, is not paid at the date to be prescribed by the chancellor, the foreclosure may proceed. This was the approach taken by the Arkansas Supreme Court in Crone v. Johnson, 240 Ark. 1029, 403 S.W. 2d 738 (1966), albeit far lesser sums were involved, and we think it fair. We note that, although we have said the chancellor will give the appellants a reasonable time to make their payments current, in no event will the appellees be precluded from acceleration and foreclosure on October 31, 1980, if the amount due then, including the payment which falls due on that date, has not been paid.
V.
The final point of the appellants has to do with computation of the judgment. The appellees respond with their own recalculation. In view of the result we reach, we deem it unnecessary to address the errors alleged in the manner of reaching the judgment, as the figures will undoubtedly be different in the event of a subsequent acceleration, judgment and foreclosure.
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George Howard, Jr., Judge.
Appellant challenges the action of the Board of Review in affirming the denial of unemployment benefits under Section 5(b)(1) of the Employment Security Law which provides:
. . . [A]n individual shall be disqualified for benefits:
If he is discharged from his last work for misconduct in connection with the work . . .
Appellant testified that her status as an employee with Stapleton Ladders, Respondent, began in February, 1979; that she, her husband and brother, who were also employed by respondent, did not report to work on May 21st and 22nd because her husband’s automobile broke down and she had no means of transportation to work; that on May 23rd she did not report to work because she was ill. Appellant also testified that she was absent from her job on at least two other occasions because her daughter was ill necessitating appellant’s presence at home.
It is undisputed that appellant advised her employer, by telephone, that due to the lack of transportation she was unable to report to work on May 21st and 22nd. It is further undisputed that appellant’s husband and brother on May 23rd advised the respondent, when they reported for work, that appellant was ill and wopld not report to work, whereupon appellant, her husband and brother were fired.
It is clear that respondent is a small enterprise employing only a few people in the manufacture of ladders. Appellant’s assignment on respondent’s assembly line consisted of placing “braclets and things on steps for the ladders.” Appellant’s assignment was vital, to the continuity and smooth operation of respondent’s production schedule. It is undisputed that appellant’s absence has interfered materially with respondent’s assembly line production.
The force of appellant’s argument for reversal seems to be that respondent — in a conversation between respondent and appellant’s husband — terminated appellant on May 21st rather than May 23rd; therefore, the reason for her termination was because of the lack of transportation which wás the result of an emergency which appellant had no control over and was in fact an unavoidable situation. Thus, argues appellant, respondent’s action is not based upon good cause.
Respondent, on the other hand, testified that the termination occurred on May 23rd and that appellant had a rather lengthy absentee record during her relatively short period with its firm.
It is crystal clear that during appellant’s twelve weeks of employment, she had been absent at least six times either because of illness in the family or the lack of transportation. The question relative to when appellant was actually terminated presented a fact question for the Agency’s determination. Credibility is a matter to be evaluated and resolved by the administrative tribunal while our responsibility is to determine essentially whether the finding of the Agency is supported by substantial evidence.
While it is generally recognized that an employer has certain obligations and responsibilities to his employees in providing suitable working conditions and hours, it goes without saying that an employer generally has neither an affirmative duty to provide transportation to an employee to and from his place of employment, nor is required to tolerate a mode of conduct pertaining to an employee’s ability or the lack thereof to provide transportation to and from his place of employment which has the effect of reducing the efficiency of the employer’s operations and, if continued, the complete destruction of the employer’s business before the employer can take preventive measures as was done in the instant case.
We are convinced that the holding of the Agency is indeed supported by substantial evidence.
Affirmed. | [
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Prank Holt, Justice.
This is an action by Faulkner County, brought in the name of the state, to recover damages from the petitioners. The plaintiff alleged that petitioners negligently installed an underground cable across a county road and as a result of such negligence a county owned motorgrader overturned when it struck the concealed obstruction, causing damage to the vehicle and injuring the county employee driver. The plaintiff sought to recover $2,000.00 for damage to the motorgrader and reimbursement of $2,054.30 for medical and hospital expenses paid on behalf of its injured employee. The petitioners responded to the complaint by filing a motion to quash the summons and dismiss the action for lack of venue. Petitioners alleged that proper venue was in Pulaski and not in Faulkner County since petitioner Southwestern Bell Telephone Company is a foreign corporation legally doing business in Arkansas and petitioner Wheeler is a Pulaski County resident. The trial court, the respondent, denied their motion. A temporary writ of prohibition was granted by this court and now the issue is whether the writ should be made permanent. This action was instituted in the name of the state pursuant to Ark. Stat. Ann. § 17-302 (Repl. 1968). This statute reads that when a “county has any demand against any persons or corporations, suit thereon may be brought, in the name of the State for the use of the county.”
Since this action is in the name of the state, the petitioners contend that venue lies in the Circuit Court of Pulaski County and not Faulkner County by reason of Ark. Stat. Ann. §§ 27-603 and 34-201 (Repl. 1962). The petitioners are correct.
There are certain actions which must be brought in Pulaski County according to the terms of §§ 27-603 and 34-201. In pertinent part, § 27-603 provides:
“The following actions must be brought in the county in which the seat of government is situated:
- First. All civil actions in behalf of the State, or which may be brought in the name of the State, or in which the State has, or claims an interest, except as provided in sec. 484 as amended [§ 34-201].”
Section 34-201 provides, in pertinent part, that:
“* * * all actions which are authorized by the provisions of this Code, or by law, to be brought in the name of the State, * * * shall be brought and prosecuted in the county where the defendant resides.”
The- respondent argues, however, that these quoted .statutes are not applicable and relies upon Ark. Stat. .Ann. § 27-611 which provides that:
“Any action for damages to personal property by wrongful or negligent act may be brought either in the county where the accident occurred which caused the damage or in the county of the residence of the person who was the owner of the property at the time the cause of action arose.”
Respondent contends that the effect of this statute is to localize a formerly transitory cause, of action and, since it is the more recent statute, it should control the venue in the case at bar.
This contention, however, has been decided adversely to respondent. We have held that § 27-611 is a general venue statute governing civil suits brought by persons for the recovery of damages to their property and, therefore, it is inapplicable to an action brought on behalf of or in the name of the state. In other words, it applies to persons and not the state. Cook, Commissioner v. Gore, 214 Ark. 777, 218 S.W. 2d 82 (1949). There we said that § 27-611 did not amend or affect § 34-201. In Downey v. Toler, Judge, 214 Ark. 334, 216 S.W. 2d 60 (1948), respondent contended that personal injury actions were localized by Ark. Stat Ann. § 27-610. This section provides that actions to recover for personal injury shall be brought in the county where the injury occurred or in the county where the injured person resided at the time of the injury. We held that since the defendant state policemen were state officers the controlling venue statute’was § 34-201 which was unaffected by § 27-610, the later statute. Thus, venue was limited to Pulaski County which is the official residence of state officers.
Respondent argues that to be required “to pursue their remedies in the distant courts of Pulaski County” would cast an unconscionable burden upon other counties. There is much merit and appeal in respondent’s argument when the practical aspect of venue is considered. However, the rule is well established that the wisdom and expediency of a statute should be addressed to the legislature. In Newton County Republican Central Committee v. Clark, 228 Ark. 965, 311 S.W. 2d 774. (1958) we said:
“We have repeatedly said that the question of the wisdom or expediency of a statute is for the Legislature alone. The mere fact that a statute may seem to he more or less unreasonable or unwise does not justify a court in annulling it, as courts do not sit to supervise legislation. Courts do not make the law; they merely construe, apply, and interpret it.”
See, also, Leonard v. Henry, 187 Ark. 75, 58 S.W. 2d 430 (1933).
In the case at bar, petitioner Wheeler is a resident of Pulaski County. Therefore, § 34-201 requires-that venue in this case is in Pulaski County. Petitioner Southwestern Bell Telephone Company is a foreign corporation authorized to do business in Arkansas. A foreign corporation is not recognized, however, as having a local or county residence. Pelan Cooperage Company v. Duty, 140 Ark. 135, 215 S.W. 715 (1919); Central Coal & Coke Company v. Orwig, 150 Ark. 635, 235 S.W. 390 (1921). Therefore, Ark. Stat. Ann. § 27-603 places the venue at “the seat of government” which is in Pulaski County.
The temporary writ is made permanent. | [
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Per Curiam.
The appellant, Homer Lloyd Moore, through his attorney, has filed a motion for rule on the clerk.
The Clerk of this Court properly refused to accept the tendered record in this case because it was not tendered timely.
The judgment was entered April 3, 1979. A motion was filed on May 22, 1979, to extend the time for filing the transcript. The trial judge signed the order extending the time until December 26, 1979.
When the record was tendered more than seven months had elapsed from the date of the judgment.
In an affidavit attached to the motion, Vincent E. Skillman, Jr., the attorney for the appellant, stated, “That the time computed was incorrect not due to any fault of the said Homer Lloyd Moore, or anyone else to my knowledge.”
We have recognized that sometimes an appeal must be accepted where to do otherwise would be a denial of a constitutional right; that is, the right to effective assistance of counsel.
In Harkness v. State, 264 Ark. 561, 572 S.W. 2d 835 (1978), we recognized this principle. Subsequent to Harkness in the per curiam opinion, Regarding Belated Appeals in criminal cases, dated February 5, 1979, we adopted a policy of publishing a per curiam order when we had to grant an appeal because counsel for no good cause tendered an out-of-time transcript.
In civil cases, an appeal will be granted if a record is tendered beyond a legally authorized date only if there is unavoidable casualty. In criminal cases, the rule is that we will do so only if there is an affidavit showing a “good reason.” Rules of Crim. Proc., Rule 36.9.
None of these rules or decisions apply to the problem before us.
The affiant lawyer in this case does not cite good reasons, nor really any reason for not timely tendering the record. It is the duty and responsibility of counsel for an appellant to see that the record is timely filed. In effect, counsel for the appellant says it was not the fault of anyone. For that reason we deny the petition for a rule on the clerk.
We do not hold that we will deny a belated appeal if good reason is shown. | [
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Carleton Harris, Chief Justice.
This is the second appeal of this case. Sikes v. Segers, 263 Ark. 164, 563 S.W.2d 441, reflects that the trial court ruled that appellant’s action for alienation of affection was barred by the statute of limitations, and this holding was not appealed by appellant. The trial court also held that the malpractice action brought by Sikes against appellee was not barred by the statute of limitations, and this ruling was not appealed. However, appellee asked for a summary judgment, which the court granted due to its finding that appellant’s handwritten affidavit (prepared during the recess of the court) had not been timely filed. The affidavit controverted the allegations and statements in the motion for summary judgment, and accordingly, raised a factual issue. We, because of the facts and circumstances of the particular case, concluded that “The only fair and reasonable action would have been to permit the affidavit to be filed;” consequently, we reversed the court’s action in granting summary judgment and remanded the case for further proceedings.
In the present case, appellant filed motions on August 2 (heard by the trial court on August 4, 1978) and August 14 for continuances, it being maintained that his present attorney, because of a previous commitment, could not appear on the date of trial (August 15). The case was already set for August 15 and the trial court stated that it would proceed to trial. On August 15, neither appellant nor his attorney appeared, and the court entered an order reflecting that the motions for continuance had been denied, dismissing with prejudice the complaint of appellant, and awarding all costs to appellee. From the order (judgment) appellant brings this appeal. The case is somewhat difficult to follow because separate hearings were conducted involving different attorneys, and there is considerable background relating to the reasons for the hearings.
It is first argued that the trial court erred in refusing to grant motions for a continuance. These motions were predicated on appellant’s contention that the attorney who had been representing him was no longer in a position to properly present his case. This attorney was C. W. Knauts, who lived in Clay County. The basis of the contention was that Lewis Jones, a partner of appellee, had filed a defamation of character suit against Sikes and Knauts on September 28, 1977 and, according to Sikes, Knauts wanted to settle the matter by swapping dismissals of lawsuits, i.e., Sikes would dismiss his malpractice action against Segers and Jones would dismiss the suit he had filed against Sikes and Knauts. Sikes said that he did not want to follow this suggestion; that he felt the two lawsuits were entirely separate and Knauts had a conflict of interest and could not afford him the best representation in his (appellant’s) action against Segers. The trial court, having received a letter from Knauts concerning his desire to withdraw as attorney for Sikes (in which was enclosed a letter from Sikes wherein Knauts was discharged), conducted a hearing on July 27, 1978 to determine whether there was reason to discharge Knauts. In addition to the reason just given, Sikes complainted that his lawyer did not meet with him or talk with him prior to the taking of his deposition. Principally, however, his complaint was that Knauts wanted to settle both lawsuits in the manner heretofore mentioned.
Knauts said that he and his client had not agreed for several weeks on the manner of handling the litigation and stated:
In accordance with the court’s urging counsel to settle the case, I have endeavored to try to work to that end, by my counseling and discussions with Mr. Sikes, I feel have precipitated a riff between us.
The court interjected:
But it was at my request. I request it in every case. I try to pre-try every case and try to settle it; not just this case.
Knauts added that there was no question but that he and Sikes had completely different viewpoints as to how the case presently before us should be pursued and that:
In keeping with what I have felt was in line with the instructions of the court, to explore all avenues of settlement — in fact, I have passed this information on to Mr. Sikes. And when I did this and during the time that the court asked that it be done, this is when Mr. Sikes felt ill at ease with me, . . .
Knauts stated that he had felt no “pressure” from the case filed by Jones; that his attorney had advised him that that case was completely defensible and he felt that his participation in it was personally defensible, but he did feel that Sikes thought there was a conflict. Sikes, who had caused some tapes to be made of purported conversations between his wife and appellee (subsequently discussed) testified that his attorney had told him that there was “no way” that the court could “touch those tapes during that deposition;” when the court impounded the tapes, apparently his confidence in his counsel was eroded. Knauts stated that he did tell Sikes that since there was no motion filed to suppress the tapes, he did not think it would be proper for the court to do so, and Knauts further stated that one of the differences between him and Sikes was that appellant wanted to take the matter to the State Supreme Court Committee on Professional Conduct for the purpose of disciplining Segers; he (Knauts) was against that procedure and would have no part in it. The court permitted Knauts to withdraw from his representation of Sikes and told the latter that he could get another attorney, but there would be no continuance from the August 15 trial date, and an order was entered to that effect; the court also told Sikes to advise any new attorney that he did not permit the taking of depositions within 30 days before the trial date.
Thereafter, Sikes obtained William R. Wilson, Jr., of Little Rock to represent him, and Wilson filed motion to compel discovery, motion for substitution of counsel, motion for continuance, and motion to Recuse. Appellee filed a motion to impound and to suppress the tapes, heretofore mentioned. As to the motion for continuance, Wilson stated that he had a conflict on August 15 and could not possibly be present on the date of trial. Appellee vigorously opposed the granting of a continuance and points out to this court the length of time that the suit has been pending. Of course, the divorce action commenced in 1973, and there were numerous hearings relative thereto, but in our view, the cases are entirely separate and distinct causes of action. Primarily it must be recognized that the divorce matter involved litigation between Sikes and his wife, while the current action is litigation between Sikes and his alleged attorney. This malpractice action was filed by the Sam Sexton law firm on February 3, 1976, but was dismissed without prejudice the next day and Sexton withdrew from the case. Sikes testified that this dismissal without prejudice was done by one of the attorneys without his knowledge or consent. It does not appear that there is any evidence to the contrary.
Further background reflects that on January 17, 1977, a second malpractice action was filed by Knauts, retained in late 1976 by appellant. On February 3, appellee filed an answer, and on May 12 the trial court granted summary judgment in favor of appellee. This judgment was appealed on July 8. On September 28, Lewis D. Jones, partner of appellee, filed a defamation suit against appellant and Knauts. On March 27, 1978, as earlier reflected, this court reversed the trial court on the granting of summary judgment as to malpractice. Actually, there was nothing for Sikes and Knauts to disagree about until after the reversal, for if we had affirmed the case, instead of reversing it, there would have been no malpractice cause of action to “swap” with Jones. The dissatisfaction of Sikes seems to have commenced (according to the testimony of Sikes) around the last of April when, according to his testimony, Knauts made this suggestion. Other complaints were that his attorney did not brief him on the taking of a discovery deposition which was set for July 7. This deposition was postponed until July 14 because of the illness of Knauts. Sikes testified:
As a matter of fact, he notified opposing counsel that he was sick and I had to call the office to get that information. Then when it was reset I ended up finding out the Thursday morning of the hearing that the deposition was set for that afternoon. I found that out Thursday morning by myself, by calling the office.
Of course, a client has a right to discharge an attorney, though there may not be just cause. Johnson v. MoPac Railroad Co., 149 Ark. 418, 233 S.W. 699; Gentry v. Richardson, 228 Ark. 677, 309 S.W.2d 721. See also Code of Professional Responsibility, DR 2-110(b)(4). While the trial court found that Knauts had represented Sikes in a capable manner, he did grant the attorney’s petition to withdraw. Of course, according to the testimony of both Sikes and Knauts, they were in total disagreement as to the procedure to be followed and apparently had lost confidence in each other. Certainly, their feelings were not compatible with the attitude that an attorney and client should have in preparing for litigation.
The court’s order approving the petition of Knauts was granted on July 27. That left appellant 18 days to obtain an attorney. Obtaining an attorney in the Fayetteville area would have been most difficult, and it is easy to understand his acquiring an attorney from an outside area; even at that, he did obtain the services of Wilson within four or five days, though Wilson advised that he could not try the case on that date. The record reflects that Sikes had also made other efforts to obtain counsel, but had been unable to do so. Of course, if it appeared that appellant was simply trying to delay the trial and had no bona fide reason for a continuance, the court’s denial of such continuance would be correct. The record does not support this inference. Nor is this a matter where the attorney is contending that he had inadequate time for preparation; rather, he simply had a conflict on August 15. As already pointed out, the state of feeling between appellant and his attorney was such that adequate representation by that attorney would have been difficult, if not impossible. Actually, the court advised that no continuance would be granted even before it was requested, so it appears that no consideration was given to the motion, or the reasons therefor. Of course, the question of whether a continuance should be granted is pretty well determined on the facts of the particular case, and vve have reached the conclusion that, under the facts of this case, there was an abuse of discretion in not granting the motion.
It is asserted that the trial court erred in denying appellant’s motion to compel appellee to complete discovery by answering questions concerning appellee’s alleged meretricious relationship with Jolene Sikes. On July 17, 1973, appellant and his wife, Jolene Sikes, had met with appellee for the purpose of discussing a property settlement pursuant to obtaining the divorce. Mrs. Sikes had gone to appellee for representation, and appellant alleged that Segers also represented him. In general, he contended that subsequent to his wife’s obtaining Segers as her attorney, the two engaged in a meretricious relationship, which influenced Segers’ recommendations (to the detriment of appellant) in the property settlement. On July 14, 1978, discovery depositions were taken from Segers and Sikes and made exhibits at a hearing before Judge Cummings on August 4.
Let it first be understood that a meretricious relationship between Jolene Sikes and appellee would be immaterial to any question here presented unless Segers was representing appellant. Of course, if appellee and Mrs. Sikes were having an affair, any advice given to appellant could have been affected by the personal relationship with Mrs. Sikes. Certainly, such a situation could not be countenanced in observing professional ethics, but the duty of an attorney to his client goes far beyond ethics. Unquestionably, the relationship between Segers and Sikes (if Segers was representing Sikes) was a fiduciary relationship. On American-Canadian Oil & Drilling Corp. v. Aldridge & Stroud, 237 Ark. 407, 373 S.W.2d 148, this court said:
The primary question for determination is whether the Attorneys did, either in fact or as a matter of law, represent conflicting interests by acting in their dual capacity as attorneys for appellant and Aldridge & Stroud, for if such were the case we would unhesitatingly hold that they thereby forfeited all rights to any compensation. No rule of law is more firmly established than that — ‘A fiduciary relationship exists between attorney and client, and the confidence which the relationship begets between the parties makes it necessary for the attorney to act in utmost good faith.’ Norfleet v. Stewart, 180 Ark. 161, 20 S.W.2d 868. This high fiduciary relationship positively precludes attorneys from representing conflicting interests as was well stated in Silbiger v. Prudence Bonds Corporation, 180 F.2d 917, where Judge Learned Hand observed:
‘Certainly by the beginning of the Seventeenth Century it had become a commonplace that an attorney must not represent opposed interests; and the usual consequence has been that he is debarred from receiving any fee from either, no matter how successful his labors. Nor will the court hear him urge, or let him prove, that in fact the conflict of his loyalties has had no influence upon his conduct; the prohibition is absolute and the consequence is a forfeiture of all pay.’
The following portions of the deposition appear pertinent:
Q. So Mrs. Sikes appeared there in the office, herself, first, and then later brought in Mr. Sikes; is that right?
A. Mrs. Sikes appeared there July 9, July 10, and July 16, before Mr. Sikes came into the office with Mrs. Sikes.
Q. I am sure that you have heard the testimony of Mr. Sikes in connection with his statement that you and he — I mean that you talked to him about representing both of them. Can you elaborate on that, Mr. Joe?
A. Yeah, I can, and I had personally a high regard for
R.H., and really didn’t feel sorry but felt remorseful that he and his wife and little ol’ baby were going to split the sheet. I told R.H., with Jolene there, that I represented Jolene Sikes and as long as there was not a controversy that could not be settled between them, as long as there wasn’t a controversy they couldn’t settle that R.H. need not seek outside counsel. If it got to a point where there was a controversy that they could not settle, then in that event, I represented Jolene, and he would have to hire another lawyer, and I don’t, you know, I tried very hard to eliminate controversy because, as R.H. said, everything that she wanted he talked her down and out of, and she was the one that was the giver, and gave, and took away from what was, in my opinion, a fair and equitable settlement, she gave away. And R.H. took away from her, and he never — the only controversies that ever arose, she gave in, which eliminated him having any controversy. But I never said that I would represent R. H. Sikes.
Segers further stated that Sikes had told him that he had discussed the case with another lawyer and appeared to have received advice from the attorney. Continuing with the deposition:
A. He [Sikes] took things out, too. I got off the track; I didn’t answer your question. He took the property settlement agreement as was drawn up, he’d pick it up, take it out of the office, bring it back, with red lines in it or writings or markings or something, with what he wanted changed, and this sort of thing. Sometimes he would leave it there, when I was there, and sometimes he would leave it there when I wasn’t there, and I distinctly recall him telling me that he had seen Jimmy Cypert concerning the property settlement agreement and this conversation came in when there was something he wanted to change; I don’t remember what it was. And I told him that I wouldn’t recommend to my client to accept it, and he said, ‘I have seen Jimmy Cypert and that is what I am going to do.’
Subsequently, Segers testified that Cypert said he had never represented Sikes in the divorce action.
Segers took the acknowledgment of Sikes when he executed the waiver and entry of appearance for the divorce. The record reflects that members of the Sikes family had used Segers as an attorney, the latter representing the mother of appellant a few years before present litigation. Of course, in the first case, we reversed the trial court in granting a summary judgment for Segers on the basis of an affidavit by Sikes which we held raised a factual issue. In that affidavit, Sikes stated, inter alia, “that Segers agreed to represent both he and Jolene Sikes in their divorce, but did not disclose to him the relationship of Segers to his wife, that they were involved in an affair involving a physical relationship. That he paid Segers for his service as an attorney.”
Thereafter, a number of questions were asked, which were objected to by counsel for appellee on the basis of being either of a privileged nature between a client and her attorney, or that they related to the alienation of affections suit which, as previously mentioned, had been dismissed by the trial court because the statute of limitations had run. Without discussing every question asked (which does not seem necessary since the case has never gone to trial), there were some which obviously did not relate to any privilege, and likewise were relevant to a malpractice action. For instance, Segers was asked:
Joe, it is alleged here in the Complaint of R. H. Sikes and it was also previously alleged in pleadings filed by the office of Sam Sexton that you and Jolene Sikes, after your representation of Jolene started and during the time you represented R. H. Sikes, you undertook to have a physical and meretricious relationship with Jolene Sikes?
* m *
Joe, at the time you were representing Jolene Sikes in this matter, did you ever ask her for a date or ask to come over to her house and see her for any physical purpose?
* * IÜ
Joe, did Jolene Sikes ever call you up and ask you to come up to her house for the purpose of sexual relations?
All questions were objected to on the basis that they only related to alienation of affections.
While the particular questions mentioned did not refer to, nor were they objected to on the basis of, privileged communications, it appears certain that this question will arise during a trial, and a discussion of privilege is entirely in order. First, let it be said that any questions referring to acts of appellee and Mrs. Sikes, rather than communications between an attorney and his client, are not privileged. Also, the client is the one who is given the privilege of refusing to disclose confidential communications, and while the lawyer may claim the privilege, he can only do so on behalf of the client. See Uniform Rules of Evidence, Rule 502(b) and (c).
At the hearing on August 4 (passing on the motion to compel discovery), the court held that the questions relating to a meretricious relationship dealt with alienation of affections, and were not appropriate to the question of malpractice, stating:
The duty between this man [Segers] and Mr. Sikes is the only allegation that he has the right to put on testimony about. I think there is a difference between the alienation of affection proof and malpractice.
An order was subsequently prepared to that effect. Counsel for appellant moved that he be allowed to depose the appellee, considering that the deposition previously taken was inadequate, and said that he could take it “at one ’clock today,” but the court denied the motion, pointing out that he had a rule that no depositions could be taken within 30 days of the trial date.
In accordance with what has been said, we hold that the court erred in finding that questions concerning the alleged meretricious relationship related only to the issue of alienation of affections.
It is also urged that the trial court erred in impounding and suppressing the tape recorded telephone conversations between Jolene Sikes and Joe Segers. On August 9, 1973, appellant, who had retained the assistance of Bill Murray, a private investigator, began taping telephone conversations on his home phone, such taping continuing until September 5. Murray explained to Sikes how the operation was carried out and Sikes installed the necessary equipment for the taping. At this time, the divorce action, which had been filed on July 19 by Mrs. Sikes, was still pending, the decree not being issued until August 22. Both Sikes and his wife were still living in the home, although Sikes was gone a great part of the time on golf tours. The tapes were collected by Murray and turned over to Sskes, and Sikes contends that the telephone conversations, as recorded on the tapes, establish his contention that a meretricious relationship existed between his wife and Segers. On July 14, at the taking of the discovery depositions, according to the testimony of Sikes, Judge Cummings entered the courtroom where the depositions were be ing taken and impounded the tapes. Appellant stated there was no hearing before this was done. The court indicated that the tapes were impounded or sequestered simply as a matter of preserving their integrity. Apparently there was no hearing at the time the tapes were impounded, but 12 days later appellee filed a motion to impound and suppress the tapes. The court entered an order providing:
That the Defendant’s Motion to Impound and to Suppress Tapes should be granted in that the tape recordings of certain telephone conversation were illegally obtained and are, therefore, inadmissible as evidence and shall be retained by this Court until further Orders are issued, and that the Court’s Temporary Order of July 14, 1978 impounding said tape recordings shall remain in full force and effect; the Court further finds that said tapes and the use of said tapes by the Plaintiff or any material obtained therefrom should be suppressed in that the tapes or any material obtained therefrom are inadmissible as evidence.
Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.A. §§2510-2520, for the dual purpose of protecting the privacy of wire and oral communications, and delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized. To assure the privacy of oral and wire communications, Title III prohibits all wiretapping and electronic surveillance by persons other than duly authorized law enforcement officers engaged in the investigation or prevention of specified types of serious crimes, and only after authorization of a court order obtained after a showing and finding of probable cause. U.S. Cong. & Admin. News, Vol. 2, 1968, P. 2153.
The question of the admissibility of these tapes as direct evidence has been briefed to a degree by both sides, such matters being discussed as to whether under particular circumstances the evidence is admissible, and whether the provisions of the Omnibus Crime Control and Safe Streets Act apply only to criminal matters, and while there are but few cases cited, it is apparent that conflicting views have been expressed. The briefs, however, fail to cite case authority on the question of the court’s right to impound the tapes, particularly whether this can be done prior to a hearing. Likewise, the briefs are inadequate upon the question of whether the tapes, if not admissible as substantive evidence in the case in chief, could be used for impeachment purposes. The second question is as important as the first. Only one case is cited on this last question.
These are matters that should be presented at the trial itself, and we decline at this time to pass on the admissibility of the tapes, either as substantive evidence or the use of such for impeachment purposes.
On the whole case, for the reasons enumerated herein, the order (judgment) of the circuit court entered on August 15, 1978, is reversed, and the cause is remanded to the Circuit Court of Washington County for further proceedings not inconsistent with this opinion.
This motion was received in the mail.
This motion was denied, but is not raised on appeal.
Sikes was represented by Knauts and present counsel represented Segers on July 14. | [
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John A. Fogleman, Justice.
On September 25, 1978, appellee, Yelcot Telephone Company, filed an application with appellant, Arkansas Public Service Commission, requesting an annual rate increase of $88,071.00. Pursuant to Ark. Stat. Ann. § 73-217(b) (Supp. 1977), appellee stated that an immediate and impelling necessity existed and requested that appellant authorize the collection of an interim annual increase of $75,000.00, subject to refund with interest at the rate of 10 percent per annum, pending a final determination of the full rate application. It was alleged that appellee’s return on common equity had fallen below one percent, and that some sort of immediate relief was imperative. As provided by the statute, a hearing was held on October 10, 1978, limited solely to the collection of the interim rates sought by appellee. By an order dated October 24, 1978, appellant denied the requested immediate rate relief, stating that the collection of such interim increases could be justified only upon a showing that a utility could not meet its minimum financial obligations, such as current payroll or interest payments. In its order, the commission stated that Yelcot produced no evidence that its ability to render adequate service will be jeopardized if emergency relief is not granted. This order also served to suspend the collection of any additional rates sought by appellee for a period of six months, during investigation of the application by appellant. Appellee’s application for a rehearing was denied on November 1, 1978. On the same day, appellee filed a “petition to review, set aside and modify” appellant’s order in the Circuit Court of Pulaski County, and on that day, the court, finding that appellee would suffer irreparable harm if unable to immediately begin collection of the increased rates, stayed appellant’s order of October 24, 1978, and authorized appellee to begin collecting increased rates designed to produce an annual increase in revenue of $88,071.00. Appellant filed a motion to vacate this order, contending that it was a final order, entered without notice to appellant and without providing appellant an opportunity to respond to appellee’s petition. Appellee filed a response joining in appellant’s request that the November 1 order be modified to have only temporary effect and to give appellant notice and ample opportunity for a hearing. The order was so modified on November 22, 1978. Appellant filed the record of the proceedings held on October 10, 1978. Appellant held a full hearing on appellee’s rate application on December 21, 1978. By agreement between the parties, the case was submitted to the court on briefs, rather than by a hearing, with appellant filing its brief on December 22 and appellee relying on its initial brief, filed with its petition on November 1. On December 27, 1978, the Circuit Court of Pulaski County entered its order, holding that appellant’s order of October 24, 1978 was arbitrary, staying the effectiveness of said order and authorizing appellee to place its new rate schedules into effect, subject to refund, pending the final investigation and determination by the appellant. Appellant filed its notice of appeal on January 24, 1979. Appellant entered its final order on March 6,1979, finding that the appellee was entitled to increased annual revenues of $98,890.00, but limiting the actual increase to the amount sought, $88,071.00.
Appellant first contends that the trial court erred in holding that the diminution of a utility’s earnings on common equity to a figure below one percent constitutes an immediate and impelling necessity, justifying the implementation of interim rates prior to a final decision on an application for a rate increase.
The portion of Ark. Stat. Ann. § 73-217(b) which appellee relied on in requesting implementation of interim rate relief provides:
. . . [Provided, however, that if the public utility contends that an immediate and impelling necessity exists for the requested rate increase, a petition may be filed with the Commission narrating such alleged circumstances, which petition must be set for hearing within fifteen (15) days from the date of the filing thereof or to such subsequent time as may be mutually agreeable to the Commission and the utility, and if the Commission finds at such hearing that there is substantial merit to the allegation of the utility’s claims, said Commission may permit all or a portion of said rate to become effective . . .
The appeal from the order of appellant is governed by the provisions of Ark. Stat. Ann. § 73-229.1 (b) (Supp. 1977). The relevant portion reads:
... The finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive. The review shall not be extended further than to determine whether the Commission’s findings are so supported by substantial evidence, and whether the Commission has regularly pursued its authority, including a determination of whether the order or decision under review violated any right of the petitioner under the laws or Constitution of the United States or of the State of Arkansas. . . .
The sole purpose of the hearing held on October 10 was to determine if appellee’s need for additional revenues was of such urgency that it constituted an immediate and impelling necessity. The only evidence presented at the hearing was the testimony of appellee’s president, Calvin Czeschin, the testimony of Russell Friedrich and the written statement of Larry Seab, both of whom were consultants on appellee’s rate application, and the testimony of three residents of the area served by the appellee.
Czeschin testified that appellee had undertaken a massive upgrading of all its facilities, including a complete rebuilding of some exchanges. A substantial portion of this upgrading process involved changing the eight and four-party rural services to one, two and four-party services. He stated that the addition of approximately $1,000,000.00 in gross plant had a substantial impact upon the earnings on common equity, which, at the time of the hearing, were “almost zero.” (The rate application filed with appellant alleged that the earnings on common equity had fallen to “below one percent.”)
The statement of Larry Seab, apparently read by Russell Friedrich, and adopted by him as his own statement, expressed the belief that appellee had a required revenue deficiency of $110,448.00, but stated that appellee was only requesting rate adjustments to make up a revenue deficiency of $88,071.00. Friedrich did not know whether the $75,000.00 interim rate increase requested would be a “minimum amount.”
The remainder of the witnesses, the Mayors of Cotter and Gassville and a resident of Cotter, all of whom were served by appellee, merely related their concern about a possible increase in their phone bill and the overall effect of inflation. Charles Kenyon testified that the service provided by appellee was good.
The Arkansas Public Service Commission is vested with two separate and distinct duties or responsibilities. The first of these is a duty to a utility company to allow it to charge rates which will provide a fair return on invested capital. The second is a duty to the public to see to it that the rates which the public must pay are not more than necessary to provide a fair return to the Company. City of El Dorado v. Arkansas Public Service Commission, 235 Ark. 812, 362 S.W. 2d 680. It is the task of the commission to weigh these interests in arriving at the most equitable rate to be charged by the utility. Because the investigation and consideration of rate applications can become such a complex and time consuming procedure, the General Assembly has given the commission the authority to suspend the collection of proposed rate increases, called “tariffs,” for periods of up to six months, during the time the commission is deliberating on the application, a provision obviously designed to protect the public from the collection of rate increases which the commission later determines to be unwarranted. Ark. Stat. Ann. § 73-217. However, in recognition of the rights of the utility companies in the state to earn a fair return on invested capital, the General Assembly has also enacted the provisions of Ark. Stat. Ann. § 73-217(b), the procedure followed by appellee in this case.
Appellant has previously held the intent of the statute governing interim rate relief is that such an option is available to a utility “as a protection to it in the event that the financial stability of the company would or could be placed in jeopardy by reason of undue delay in rate adjustments.” Re Arkansas Louisiana Gas Co., 93 PUR 3d 201 (Ark. 1972); Re Fordyce Water Co., 88 PUR NS 98 (Ark. 1951). Evidence of such “jeopardy”, according to appellant, would be the inability to meet current payroll or interest payments. Re Arkansas Louisiana Gas Co., supra, citing Re Citizens Utilities Co. of California, 89 PUR 3d 334 (Cal. 1971).
The undisputed testimony of Calvin Czeschin, supported by the introduction of schedules which accompanied the complete rate application, was that the earnings of appellee on common equity were almost zero. He attributed this to the rebuilding program undertaken and the harsh winter weather in January and February, 1978. He stated that appellee had never paid a cash dividend to the holders of the common stock and that it was presently not able to pay all of the dividends on preferred stock. He also testified that appellee had been unable to obtain additional long term financing from local banks. On cross-examination by appellant’s counsel, Czeschin stated that he did not know if appellee would be able to comply with the obligations imposed by its loan covenants, which are requirements imposed on appellee by its creditors, relating to such things as insurance and a specified ratio of earnings to interest payments. He also testified that appellee had begun to make monthly payments on its loans in an effort to meet these covenants. The rate of return on common equity allowed by appellant in appellee’s last rate increase application was 12.5 percent, according to Czeschin. The present rate Application of appellee projected earnings on common equity of 11.55 percent, with a requested revenue deficiency of $88,071.00. As a result of its hearings and investigation of the application, appellant finally concluded that the gross revenue deficiency of appellee was actually $98,890.00, but only granted the amount requested. A finding that appellee was entitled to a greater increase in revenues than that granted would also arguably support an allegation that it was entitled to a higher return on common equity than the 11.55 percent apparently granted. It was Czeschin’s opinion that the appellee could not retain current common stockholders and acquire new ones at zero return.
Appellant had the burden of showing substantial merit in its request for the interim rate increase. In the light of this testimony, recited herein, we cannot say that the trial court erred in finding that the appellant’s order of October 24, 1978, denying appellee the right to collect interim rates which would have provided an annual increase in revenues of $75,-000, was arbitrary, which, in effect, was a holding that the commission’s findings were not supported by substantial evidence. The rates established for public utilities must allow a fair return on the invested capital and avoid confiscation of the property of the utility through inadequate rates. City of Fort Smith v. Southwestern Bell Telephone Co., 220 Ark. 70, 247 S.W. 2d 474. In Arkansas Public Service Commission v. Continental Telephone Co. of Arkansas, 262 Ark. 821, 561 S.W. 2d 645, we discussed the concept of confiscation through inadequate rates, and said:
Confiscation simply means “the taking or seizing of private property to the public use as being forfeited.” Webster’s New International Dictionary, 2d Ed. In order for rates to be confiscatory, it is not necessary that they be such that the stockholders receive no return and the utility must immediately default on its debt. If the rates ultimately and foreseeably produce this result, the forfeiture is just as complete as it would be if the effect were dramatically instantaneous. ... A wound is fatal when death is a predictable consequence, even though it is lingering rather than instantaneous.
As pointed out in appellee’s brief before this court, a utility should have a fair return on invested capital (and consequently, freedom from confiscatory rates) at all times, not just part of the time, and appellant’s denial of interim rates during its investigation of the appellee’s rate application was not supported by any substantial evidence, and constituted a confiscation, albeit a temporary confiscation, of the appellee’s property.
Appellant argues that appellee was aware of the time delays inherent in a rate application before the Public Service Commission, and that it should not be able to wait until its earnings on common equity approached zero before filing a rate application and then request that its customers be subjected to immediate rate increases pending final determination. The following testimony of Calvin Czeschin is particularly applicable to this contention:
At the end of last year we did not have a good earnings year. We went into January and as you can remember, January and February of this last year, we thought, well, we have got a lot of maintenance and we have got people sitting around because of the bad weather and April and May ought to be better. Well, April and May weren’t and that is when we came to the decision to start on this and we contacted Mr. Seab in May and we have been working on this rate case since May.
We were hoping times would get better and we would not have to file a rate case. We didn’t anticipate, we were hoping. We had to get past January and February because they were unfair months to look at. There was no way you could look at them as normal months. So when we got to March, April and May, and they didn’t do any better, we knew we had to come in for rate relief.
We do not feel that appellant should be penalized for a conscious effort to attempt to avoid, or at least postpone, a rate increase. We are similarly unimpressed with appellant’s contention that appellee is imposing a burden on its customers due to unfortunate management decisions. It seems to us that if appellee had filed its rate increase in the latter part of 1977, as suggested by appellant, the customers of the appellee would have been required to pay the increased rates earlier. It is important to keep in mind that the rate application of appellee was granted in full and that the collection of interim rates was protected by a bond filed by appellee, providing for refund of any rates found to be unwarranted, plus interest at an annual rate of 10 percent.
We simply do not agree with appellant’s argument that the trial court erred in staying the effectiveness of the October 24 order of appellant and authorizing the collection of the increased rates by appellee, under the circumstances prevailing here. Because of the lack of any substantial evidence to support the order of appellant, we hold that the trial court did not err.
Appellant’s second point for reversal is that the trial court erred in entering its order of November 1, 1978, alleging that it was a final order which was entered without notice to appellant and without providing appellant an opportunity to respond to the petition filed by the appellee. We find this argument unpersuasive. As stated previously, upon motion of both parties, the court entered a second order on November 22, 1978, modifying the original order. This second order declared that the intended effect of the first order was only temporary and that the effectiveness of the appellant’s order, which suspended the new rates sought by the appellee, was to be stayed only during the review by the court. Appellant was given a full and complete opportunity to respond to the appellee’s petition, which it did in a brief filed with the trial court on December 22, 1978, as well as an opportunity to file the record of the proceedings had before it on October 10, 1978.
Any error by a lower court is presumed to be prejudicial unless we can say with assurance that it was not prejudicial to the rights of the appellant. Price v. Daugherty, 253 Ark. 421, 486 S.W. 2d 528. See also, International Harvester Corp. v. Hardin, 264 Ark. 717, 574 S.W. 2d 260; Men v. Arkansas State Highway Com’n., 247 Ark. 857, 448 S.W. 2d 27; Arkansas State Highway Com’n. v. Parks, 240 Ark. 719, 401 S.W. 2d 732, 26 ALR 3d 775. We have no trouble in stating with complete assurance that the order of November 1 was not prejudicial to the rights of the appellant.
Even if the trial court was in error in entering the order in the manner in which it did, this court will not reverse a judgment for an error which is unaccompanied by prejudice, commonly referred to as “harmless error.” Ark. Stat. Ann. § 27-1160 (Supp. 1977); McCoy Farms, Inc. v. J & M McKee, 263 Ark. 20, 563 S.W. 2d 409; Household Goods Carriers v. Arkansas Transportation Com’n., 262 Ark. 797, 562 S.W. 2d 42; Christmas v. Raley, 260 Ark. 150, 539 S.W. 2d 405. We find that any possible prejudice suffered by the appellant due to the November 1 order was cured by the modifying order providing notice and an opportunity to be heard. Because the lack of prejudice suffered by appellant is manifest, especially in light of the fact that the final order entered on December 27, 1978, had the same effect as the temporary order the appellant now complains of, any error committed was harmless, and therefore does not require a reversal.
The judgment is affirmed.
Hickman, J., concurs. | [
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PER CURIAM
The appellant was employed as a legal secretary by the law firm of the appellee, L. T. Tiner. The appellant applied for employment security compensation because of her alleged dismissal from her employment. The appellee, Mr. Tiner, contends she left her employment voluntarily. The appellant was denied compensation, and an appeals referee found she had voluntarily left her job and was thus ineligible for compensation. Section 5(a) of the Employment Security Act provides an employee who quits work without good cause connected with the work is disqualified. Ark. Stat. Ann. § 81-1106(a) (Supp. 1979). The referee’s finding was affirmed by the Board of Review. We must determine whether the record contains substantial evidence to support the conclusion that the appellant left her work voluntarily. Terry Dairy Products Co., Inc. v. Cash, 224 Ark. 576, 275 S.W. 2d 12 (1955).
The appellant, who was a full-time employee, testified she spoke with her employer, Mr. Tiner, on a Friday afternoon and asked him “how. he would feel” about her becoming a part-time, rather than full-time employee. She explained to him that she wanted time to get started in her own insurance business. She testified further that his response was that it would be “fine’ ’ with him, but he wanted to check with his associate in the firm, and he would call her Monday. The appellant testified Mr. Tiner did not call her the following Monday, and that she had great difficulty getting in touch with him, but that she finally did so several days later.
Mr. Tiner took the position below, and the Director of Labor takes the position, here, that the appellant left her employment voluntarily. At the hearing, Mr. Tiner did not deny telling her he “did not need her” anymore when the appellant spoke with him the week following their Friday afternoon conversation. When asked by the referee why he had told the appellant that, Mr. Tiner replied that the appellant had been out looking for other jobs, that she had used his telephone for personal calls and had on one occasion lied to him about her reason for being absent from work.
Although those statements about the appellant might have contributed to a contention that she was terminated by her employer for cause, that was not the issue below or here. The sole question is whether there is substantial evidence the appellant left her work voluntarily. There is not. The statements made by Mr. Tiner were conducive to a conclusion he terminated this employee. At no point did he state he had given her a choice between full-time employment and termination. Nothing contradicts her alleged assumption she still had a job, at least on a part-time basis, until Mr. Tiner told her he no longer needed her.
Reversed with directions to the Employment Security Division, Department of Labor, to award unemployment compensation to the appellant to the extent she is entitled to it consistent with this decision.
Judge Penix dissents. | [
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John A. Fogleman, Justice.
Appellant was convicted in tlie Circuit Court of Independence County for tlie calmes of possessing intoxicants in a dry county for purpose of sale and selling intoxicating liquors in a dry county. Since these convictions represented his third conviction of violation of the Intoxicating Liquor Penal Statutes, he was adjudged guilty of a felony and sentenced to one year in the penitentiary. Ark. Stat. Ann. § 48-811.1 (Repl. 1964).
Appellant’s first point for reversal concerns the sufficiency of the evidence to support his conviction. The state’s evidence consisted largely of the testimony of James llaigwood who related, in substance, the following: Arlis Lee approached llaigwood and requested that ho (Lee) be driven to appellant’s house for the purpose of purchasing some whiskey; Haigwood loaned Lee the money and together they drove over to appellant’s house; they parked in the front of the house and Lee got out while Haigwood remained in the truck; Lee walked straight to the house and then returned with two pints of whiskey; Haigwood saw appellant hand Lee the whiskey.
The state introduced several witnesses who testified io appellant's reputation in the community for being a bootlegger, and also introduced the testimony of Deputy Sheriff King concerning appellant’s attempt to get rid of a bottle of whiskey during a raid on his premises three days after the alleged sale to Lee.
Appellant’s evidence was in direct conflict with that of the state. Arlis Lee testified on behalf of appellant and specifically denied that appellant sold him any whiskey. Lee stated that he went with Haigwood and parked in front of appellant’s house, but that he got the whiskey out of his uncle’s pickup which was parked just above appellant’s house. He claimed that the whiskey was his. He said he only walked through appellant’s yard because it was a shorter way to get to the pickup. The testimony of appellant’s wife tended to corroborate Loo’s story as did the testimony of Lonnie Lee, the uncle of Arlis Lee. Under these circumstances a clear question of fact was presented for the jury’s determination.
The credibility of witnesses and the weight to bo given their testimony is entirety within the province of the jury; they are not required to accept the testimony of any witness as time. Bartley v. State, 210 Ark. 1061, 199 S.W. 2d 965. In commenting on a situation similar to that which we have here this court, in Melton v. State, 165 Ark. 448, 264 S.W. 965, said, “The testimony of the witness for the state did not have to be corroborated, and it was for the jury to determine whether the same was overcome by the testimony of the witnesses for- the appellant. Meeks v. State, 161 Ark. 489, 256 S.W. 863. The testimony of Mrs. Waters to the effect that she saw the appellant sell whiskey was sufficient to sustain the verdict.” Wo hold that the evidence was sufficient to sustain the conviction.
During the trial appellee introduced, over appellant’s objection, the testimony of Deputy Sheriff King. He stated that, as ho and several other officers approached appellant’s home to search for additional ■whiskey and to arrest him, they observed appellant toss a bottle of whiskey out of his truck window. The introduction of this testimony, together with the bottle of whiskey which was retrieved, was objected to by appellant on the ground that it was evidence of prior criminal behavior. The admission of this testimony is appellant’s second point for reversal. As a general rule evidence which shows or tends to show acts which constitute another crime wholly independent of, and unconnected with, that for which a person is charged is not admissible unless the evidence is shown to come under one of the exceptions to the rule. Satterfield v. State, 245 Ark. 332, 432 S.W. 2d 472.
Appellant argues that evidence of similar offenses is not admissible unless independently relevant to show intent, provided that intent is a real material element in the offense with which a person is changed. In support of this contention appellant relies on Alford v. State, 223 Ark. 330, 266 S.W. 2d 804. However, Alford did not limit admissibihdy of similar offenses to those situations involving the question of intent; on the contrary the court there said, “We need not take the time to review in detail the cases in which proof of other recent similar offenses is competent under other so-called exceptions to the general rule, as to show motive, Shuffield v. State, 120 Ark. 458, 179 S.W. 650, to rebut the plea of an alibi, Nash v. State, 120 Ark. 157, 179 S.W. 159, to prove the transaction as a whole, Autrey v. State, 113 Ark. 347, 168 S.W. 556 and so forth. The present case centers upon proof offered to show intent; so we turn to representative decisions on that point.” We have long recognized that evidence of illegal possession of intoxicants on prior and subsequent occasions from that charged in the indictment is admissible to shore the character of the business of the accused. Johnson v. State, 177 Ark. 1051, 9 S.W. 2d 233; McMillar v. State, 162 Ark. 45, 257 S.W. 366; Withem v. State, 175 Ark. 453, 299 S.W. 739 (Reversed on other grounds.); Gray v. State, 212 Ark. 1023, 208 S.W. 2d 988; Evans v. State, 177 Ark. 1076, 9 S.W. 2d 320. In a recent case we held that evidence of subsequent criminal acts is admissible for the purpose of showing motive, design, particular criminal intent, habits and practices, or guilty knowledge. Tolbert v. State, 244 Ark. 1067, 428 S.W. 2d 264. There was no error in admitting this evidence.
Appellant argues as an additional point that the court should have instructed the jury to disregard this evidence or in the alternative instructed them that they could consider such evidence only as it related to a common scheme or design. If evidence is admissible for any purpose then the objecting party must ask the court to limit the evidence to the admissible ..purpose or the objection is wholly unavailing. Amos v. State, 209 Ark. 55, 189 S.W. 2d 611; Edens v. State, 235 Ark. 996, 363 S.W. 2d 923. The record fails to reveal any request on behalf of appellant for a limiting instruction.
Appellant’s points 3 and 7 are without merit because of his failure to note his exceptions to the court’s action as required by our rules of criminal procedure. Bivens v. State, 242 Ark. 362, 413 S.W. 2d 653.
Appellant’s fourth point for reversal is his allegation of error in the overruling of his objection to questions to the witness Roberta Clark, his wife, relating to previous appearances as a witness. The following excerpt appears in the transcript on cross-examination by the prosecuting attorney:
Q. Roberta, you have testified in court before, haven’t you?
A. Yes, I have.
BY MR. WALMSLEY:
Object, that is not relevant in any way.
BY THE COURT:
Overruled; go ahead.
BY MR. WALMSLEY:
Note our exceptions.
Q. How many times?
A. I don’t remember.
Q. You mean it is that many?
A. I didn’t say it was, I just said I don’t remember.
Q. 10 times ?
A. No.
Upon repetition of appellant’s objection at this point, this line of questioning was abandoned. We find no prejudiced error in the overruling of appellant’s oh jections to the particular questions asked. A wide latitude is allowed counsel on cross-examination to elicit facts impeaching the credibility of a witness. Huffman v. City of Hot Springs, 237 Ark. 756, 375 S.W. 2d 795; Carter v. State, 196 Ark. 746, 119 S.W 2d 913. The scope of this examination is largely -within the discretion of the trial court. Lee v. State, 229 Ark. 354, 315 S.W. 2d 916; Bartley v. State, 210 Ark. 1061, 119 S.W. 2d 965; Dawson v. State, 121 Ark. 211, 180 S.W. 761; King v. State, 106 Ark. 160, 152 S.W. 990; Zorub v. Missouri Pacific Railroad Co., 182 Ark. 232, 31 S.W. 2d 421 The exercise of the trial court’s discretion as to the matter to be permitted on cross-examination will not be disturbed on appeal unless that discretion is abused. Bartley v. State, supra; Hightower v. Scholes, 128 Ark. 88, 193 S.W. 257.
It has been held in another jurisdiction that asking a witness how many times ho had been before the court was within the permissible range of cross-examination. State v. Callian, 109 La. 346, 33 Ro. 363. While we might nut go so far as to hold that such an interrogatory was permissible under all circumstances, we are unable to say that the court abused its discretion in this particular. In view of the abandonment of this line of questioning by the prosecuting attorney, we cannot say that there was any prejudice to the. appellant in this case. We will not hold that a trial court abused its discretion in the control of the range of cross-examination when no prejudice is shown, no violation of rights appears and no authority is cited as sustaining the charge of impropriety. Carter v. State, 196 Ark. 746, 119 S.W. 2d 913.
Appellant also contends that the trial court erred in overruling his objection to using the same jury to try him on the felony charge which found him guilty on the misdemeanor charges. We have previously decided this question adversely to appellant in Miller v. State, 239 Ark. 836, 394 S.W. 2d 601.
Appellant argues that he was prejudiced by the reading of the names of the foremen of the juries that liad previously convicted him and the mentioning of more than two prior convictions in the presence of the jury. If there was error, it was harmless due to the fact that appellant received the minimum sentence under the statute.
Appellant’s last point for reversal alleges that the court erred in overruling his objections to the testimony regarding his reputation in the community as a bootlegger. This point is without merit. Arkansas Statutes Annotated § 48-940 (Repl. 1964) specifically provides that such evidence is admissible in cases such as this one. We held this act constitutional in Richardson v. State, 211 Ark. 1019, 204 S.W. 2d 477.
The judgment is affirmed. | [
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Conley Byrd, Justice.
In a wrongful death action by appellee, Lois A. Lynch, individually and as executrix of the estate of Jude J. Lynch, deceased, against appellant Chicago, Rock Island & Pacific Railroad Co., the jury returned a verdict finding the railroad 61% negligent and appellee’s decedent 39% negligent. By proper motion the railroad has raised in this court the sufficiency of the evidence to sustain the verdict.
The record shows that the railroad tracks in the city of Carlisle run cast-west, with the main line being immediately noi’th of a team line. Highway 13 crosses the railroad at right angles in a north-south direction. At the time of the collision, appellee’s decedent was driving north on Highway 13 when he was struck by a westbound freight train. The testimony when stated most favorably to appellee shows that the railroad grade crossing is frequently used by the traveling public, that trains pass over it at least five times a day, and that because of the surrounding circumstances, such as parked boxcars, a reasonably careful person could not use the crossing with safety in the absence of special warnings. However, it is on the issue of special warnings that we find appellee’s evidence to be insufficient to support the verdict.
Appellee’s and appellant’s witnesses all state that decedent approached the crossing from the south slowly and without ever stopping. Three motorists headed south had stopped north of the tracks and were waiting for the train to pass. The motorist closest to the tracks was Billie Sue Pereiful, behind her was Louis Lee and the third was Ethel Loftis. Louis Lee was called as a witness by appellee. Billie Sue Pereiful and Ethel Loftis were called as witnesses by the railroad. All three stated that the signal lights on the north side of the tracks to warn southbound motorists were working. Gwendolyn Medford, a. witness called by appellee, stated that she was about a block south of the crossing when she heard the impact and that when she parked her car near the signal lights for warning northbound motorists, the lights were blinking. Steve Carrick, a witness called by appellee, testified that he was on a motorcycle following right behind the decedent at the time of the accident. Steve Garrick said that as he approached the track behind decedent the blinker lights were working but that he did not hear the bell on the north side of the track nor did he hear the train coming until he heard the air-brakes.
In addition to the foregoing testimony, Billie Sue Perciful says that she saw the decedent slowly approach the crossing without ever stopping and that he was hit while looking' down the railroad tracks to his left.
In support of her contention that there was enough evidence on the insufficiency of the warning to go to the jury, appellee argues:
“...Because of the objection of the railroad company we were not allowed to show what suggestions the Mayor and City Council made to the railroad company in regard to changing* the signals or what the reasons were. But, even so the jury does not check its common sense when it goes into tin* jury box. Men of common sense know that Rock Island could have installed gates at the crossing or could have had a flagman at this crossing to warn of the abnormal dangers. The Court told the jury that if the crossing was abnormally dangerous, then the railroad company was required to use “ordinary care to give a warning sufficient to permit the traveling public to use the crossing with reasonable safety.” The jury knew of gates and flagmen. The jury did not have to speculate about such safety measures. We insist that the evidence made a jury question as to whether this was an abnormally dangerous crossing where Mr. Lynch was killed: And that disposes of appellant’s first point.”
However we find that the decision in this case is controlled by Missouri Pacific, Railroad Company, Thompson, Trustee, v. Carruthers, Admr. 204 Ark. 419, 162 S.W. 2d 912 (1942), where we said:
“... Rither he saw' and heard these signals and the noise of the approaching train and thought he could beat it across, or he was preoccupied with sometliing else and failed to see and hear what was plainly to be seen and heard and what every one else saw and heard, including his own witnesses. In cither case, there can be no recovery, because his own negligence was the proximate cause of his death. ’ ’
In view7 of the possibility of a newr trial we think it necessary to comment upon the testimony .introduced wdth reference to three other accidents at this crossing. The testimony shows that these accidents occurred in 1953, 1961 and 1964-, all of which involved northbound motorists and westbound trains. In Bush, Receiver v. Taylor, 130 Ark. 522, 197 S.W. 2d 1172, 7 ALR 262 (1917), wo pointed out that before such proof could be received, there must be a showing of such substantial similarity of conditions in the proof as to make it reasonable and probable that the same cause existed to produce the same result. The evidence here falls far short of the substantially similar conditions involved in St. Louis Southwestern Railway Co. v. Jackson, Admr., 242 Ark. 858, 416 S.W. 2d 273 (1967). There the proof showed that the Jackson automobile was the third car in a twowmek period to collide with a southbound train at the Pair Oakes crossing and that in each of the three collisions the automobiles wrere driving into the sun- either toward the east, in the. morning or toward the west in the afternoon. In each instance the automobiles hit either the second or third diesel of a southbound train and in each instance the automobiles hit the train with- considerable force after having skidded for a distance. Here the testimony with reference to other accidents is not only remote in time but there is little or no testimony to show7 that the same conditions existed at the time of each collision or that the automobiles were traveling under substantially similar conditions. Without attempting to itemize the many factors which might be introduced to show the substantially similar nature of the prior accidents, we have mentioned enough here to demonstrate that the proof made was not sufficient to make it reasonable and probable that the same cause existed to produce all the accidents involved.
We come now to the question of whether to dismiss or remand. The motion of the Railroad Co. questioning the sufficiency of the evidence was both for judgment notwithstanding the verdict and for a new trial. Our procedure under Ark. Stat. Ann. § 29-111 (Repl. 1962) with reference to judgments n.o.v. is not exactly clear. See 17 Ark. L. Rev. 226. However, under the strongest interpretation given to a motion for judgment n.o.v., it constitutes nothing more or less than a request for directed verdict. We had the same issue before us in St. Louis Southwestern Railway Co. v. Clemons, 242 Ark. 707, 415 S.W. 2d 332 (1967), and we there pointed out that the general rule is to remand common law cases for a new trial. It is only in an exceptional case that reasons arise for a dismissal. Here there was an attempt to show that the Railroad had so operated its warning system that the traveling public had become justified in having a disrespect for the warnings given. Such evidence may be available. In accordance with the rule laid down in the Clemons case we remand this case for a possible new trial.
Reversed and remanded. | [
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Carleton Harris, Chief Justice.
This appeal relates to an eminent domain action brought by the Arkan sas State Highway Commission against Roy Carruthers and wife for the acquisition of lands needed for the construction of Interstate Highway 40,. and its facilities in Conway County. On trial, the jury returned a verdict in the amount of $45,000.00 in favor of appellees, and from the judgment so entered, appellant brings this appeal. For reversal, two points are. urged. It is first asserted that the trial court erred in allowing the landowner to testify to the amount of an estimate by a contractor as to the cost of building a necessary bridge, following the taking, for access to a portion of the remaining land. It is also contended that the trial court erred in refusing to strike the testimony of two of appellees’ witnesses with respect to damage to an airstrip, this portion of land having .been leased by Carruthers, and the lessee not being a party to the action.
We agree that there is merit in appellant’s first contention. During examination of Mr. Carruther’s, he was asked if he would have any problem getting to a certain portion of his land, and he replied that he would not, if he could construct a bridge across a canal. The witness was then asked if he knew what that would cost, and he replied, “I am not familiar with the building of roads. I have an estimate from a contractor. ’ ’ He then said that he asked the contractor what it would cost to build the bridge, and received a reply. Counsel for the department objected to the use of the estimate, or to any testimony to be given on the basis of same, stating, ‘ ‘ That is hearsay testimony. ' He has no personal knowledge, it is what someone else told him.” Over these objections, the court permitted Carruthers to testify, and the witness stated, “I believe it was $24,300.00 or $24,400.00.” This ruling by the court constituted error. As early as 1896, this court, in Little Rock and Ft. S. Ry. Co. v. Alistar, 62 Ark. 1, 34 S.W. 82, said:
“There was error also in admitting the testimony of West, which was only the opinion of a non-expert, whose testimony shows that he was guess ing merely at what he testified to, and that his opinion was based upon hearsay, and that he really knew nothing about what he was testifying.”
Likewise, in J. F. Beasley Lumber Company v. Sparks, 169 Ark. 640, 276 S.W. 582, we stated:
“It is first contended that the court erred in permitting appellee to testify concerning statements made to her by a certain building contractor as to the estimated cost of completing the building. She was. .permitted to testify, over objections of appellant, that a Mr. Finn had figured up for her the cost of completing the building and informed her that it would amount to the sum of $4,600. This testimony was purely hearsay, and we are of the opinion that the court erred in admitting it.”
In Arkansas State Highway Commission v. Speck, 230 Ark. 712, 324 S.W. 2d 796, we held that the contemplated costs of restoration, including the cost of bridges necessary to the ingress and egress of the landowner, though not the actual measure of damages, may be offered into evidence as a fact for the jury to consider, along with other facts, in arriving at the difference between the market value of the property before and after condemnation. In the case before us, the figure testified to by Carruthers was over 50% of the award of damage's, and we are unable to say that this testimony did not influence the jury, i.e., we are not able to say that the appellant was not prejudiced by this evidence.
As to the second alleged error, we merely point out that, where property is under a lease at the time of the condemnation, the owner is only entitled to damages to the reversion, after the determination of that estate. Appellant says that some of appellees’ witnesses, in reaching their conclusions on damages, considered the value of the leasehold estate, while appellees assert that this was not done. Actually, the testimony is not entirely clear on that point, but since the ease will he retried, there is no need to discuss the evidence.
Because of the error heretofore pointed out, the judgment is reversed, and the cause remanded to the Conway County Circuit Court. | [
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George Rose Smith, Justice.
This appeal comes to us as a tort case. Rule 29 (1) (o). On October 2, 1979, the plaintiff-appellant, while waiting to turn left at a traffic light, suffered a whiplash injury to his neck when his car was struck from behind by the appellee’s car. In appealing from an $11,000 verdict and judgment in his favor, the plaintiff argues that the trial judge violated the collateral source rule by permitting the defendant to prove that as a result of his injuries the plaintiff had received specified disability payments from his employer and from insurance companies. We agree that the trial judge’s action was wrong.
The plaintiff’s doctors testified in effect that he sustained a serious and painful, though not permanent, injury, that he was necessarily hospitalized from October 4 to October 18, and that he was unable to work for about four and a half months. That proof is undisputed; the defendant offered no testimony contradicting the doctors’ assertions.
Why then should the collateral source rule have been disregarded? The appellee argues that she pleaded malingering as an affirmative defense and was properly permitted to prove the plaintiff’s disability income in support of that defense, with a cautionary instruction to the jury that the evidence was to be considered only with regard to the asserted malingering, not with regard to any reduction of the plaintiff’s actual damages.
This argument does not have substantial support in the record. To begin with, the charge of malingering is not truly an affirmative defense. It simply denies that the plaintiff was injured at all or as seriously as he contends, casting no affirmative burden of proof on the defendant. We may compare it to the now largely discredited defense of unavoidable accident, which we eventually realized to mean little more than that the defendant was not negligent. Houston v. Adams, 239 Ark. 346, 389 S.W.2d 872 (1965); AMI Civil 2d, 604(1974).
There are unquestionably situations in which proof of a plaintiff’s collateral income may be admissible for a particular purpose. We mention four such purposes: One, to rebut the plaintiff’s testimony that he was compelled by financial necessity to return to work prematurely or to forego additional medical care. Gladden v. P. Henderson & Co., 385 F.2d 480 (3d Cir. 1967); Johnson v. Reed, 464 S.W.2d 689 (Tex. Civ. App. 1971). Two, to show that the plaintiff had attributed his condition to some other cause, such as sickness. Stanziale v. Musick, 370 S.W.2d 261 (Mo. 1963); Burrous v. American Airlines, 639 S.W.2d 263 (Mo. App. 1982). Three, to impeach the plaintiff’s testimony that he had paid his medical expenses himself. Fabler v. Freeman, 241 N.E.2d 394 (Ind. App. 1968). And four, to show that the plaintiff had actually continued to work instead of being out of work, as he claimed. Bookbinder v. Rotondo, 285 A.2d 387 (R.I. 1972).
No comparable situation is shown by the appellee. For the most part she merely asserts that the plaintiff’s complaint exaggerated his injuries and property damage, a commonplace occurrence having nothing to do with the collateral source rule. She does have support in the record for arguing that the plaintiff said at the scene of the accident that he didn’t think he needed to go to a doctor, that he did not see a doctor until two days later', when he tried to resume work and was not able to do so, and that he consulted an attorney 24 days after the accident (during which he had been in the hospital for two weeks). All those matters were fully accounted for by the plaintiff’s witnesses and were not left in doubt by any proof offered by the defense. The trial judge abused his discretion in- failing to hold that what slight probative value the testimony in question may have had was outweighed by the prejudicial effect of proof that the plaintiff had received substantial income from outside sources. Uniform Evidence Rule 403, Ark. Stat. Ann. § 28-1001 (Repl. 1979).
Reversed and remanded for a new trial. | [
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Darrell Hickman, Justice.
The only question before us is whether there is substantial evidence to support Jerry Ellis’ convictions for kidnapping and aggravated robbery. We find that there is and affirm the judgment.
We view the evidence in the light most favorable to the State. Late Saturday night, November 21, 1981, Harold Austin left a nightclub in Pine Bluff and was walking along a highway. A white Pontiac with two men and a woman stopped and insisted Austin get in the car. Austin rode in the back seat with a man he later identified as Jerry Ellis, the appellant. Austin testified that he tried to get out of the car several times but that his abductors refused to let him and at one point the man in the front seat produced what Austin described as a sawed-off shotgun.
They went to a gas station in Little Rock where Austin’s abductors ordered him to charge gasoline, three quarts of oil, and an air filter on his VISA credit card. Austin was then taken to an isolated area in south Little Rock. Austin was let out of the car and the man in the front seat, later identified as Larry Wright, ordered Austin to lie face down on the road and, with a gun to his head, Austin was robbed of his money and credit cards. His abductors told him to get up and run, which he did.
On November 23, 1981, Ellis and two other men were arrested at Dillard’s Department Store in Little Rock after trying to make purchases with Austin’s VISA. They were in possession of a white Pontiac which was searched. The search produced three quarts of oil, a .22 caliber rifle and some items taken from a Holiday Inn.
Ellis gave the police a statement which said that he saw Austin hitchhiking and that he accepted the offer of a ride and that Austin told them he wanted to go to Little Rock. Ellis said that at the time there was a .22 caliber rifle hidden in the front of the car which did not belong to him. Ellis said that later Austin was ordered out of the car at an isolated spot and robbed.
At Ellis’ trial, testimony established that Ellis had checked into a Pine Bluff Holiday Inn on November 22nd, using Harold Austin’s VISA. The jury convicted Ellis on both counts and sentenced him to five years for kidnapping and thirty years for aggravated robbery. The sentences were set to be served consecutively.
On appeal Ellis argues that there was no evidence presented at trial that Austin was forced to get in the car at gunpoint. It is not necessary that a victim be captured or held at gunpoint for the offense of kidnapping to be established under Ark. Stat. Ann. § 41-1702 (Repl. 1977). To prove kidnapping the State must only prove that the accused restrained the victim so as to interfere substantially with the victim’s liberty, without the victim’s consent, for a specific purpose outlined by the statute. Austin testified that he entered the car involuntarily and was restrained from leaving it.
Austin testified that after being forced into the car and being shown a weapon he was ordered to buy gas. He testified that he was taken to a rural area, forced at gunpoint to lie face down, and while Wright was holding a gun and Ellis was sitting on his leg, he was robbed. Ellis also admitted that Austin had been robbed, although he claimed that he had nothing to do with it.
On appeal we review the evidence in a light most favorable to the appellee and if there is substantial evidence to support the conviction we will affirm. Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981). Evidence is substantial if it is of sufficient force and character to compel a conclusion of reasonable and material certainty. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980). In this case the jury had the choice of believing either Ellis or Austin as to the circumstances surrounding Austin’s presence in the car. The jury obviously believed Austin and we are bound by their judgment as to the credibility of the witnesses. Jones v. State, supra; Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980). We find manifest substantial evidence to support Ellis’ convictions.
Ellis’ final argument on appeal, that his motion for a directed verdict should have been granted, also questions the sufficiency of the evidence which we have answered.
Affirmed. | [
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Richard B. Adkisson, Chief Justice.
Appellants, Jerome Allen Bargo, Terry Gene Howell, and Gary Morse filed a petition for writ of habeas corpus with the Lincoln County Circuit Court wherein they challenged the determination of their parole eligibility date by the Arkansas Department of Correction. The trial court dismissed, and on appeal we affirm.
The relevant facts can be summarized as follows: Appellants had all been convicted of various offenses and were serving time in the Department of Correction. In 1979 appellants were convicted and given additional sentences for escape. Appellant Bargo was given a six-year sentence to run concurrent with his original five-year sentence. Appellants Howell and Morse were given four-year sentences to run consecutive to their original 21 and 18-year sentences respectively.
Sometime after these escape convictions the Department of Correction informed appellants that their parole eligibility would now be determined under the more stringent provisions of Ark. Stat. Ann. § 43-2829 (Repl. 1977 rather than Ark. Stat. Ann. § 43-2807 (Repl. 1977), which had governed their original sentences. Appellants responded by filing this petition.
We must first decide whether a writ of habeas corpus is the appropriate method to challenge the determination of appellants’ parole eligibility, and we conclude that it is not. Habeas corpus petitions are restricted to the questions of whether the petitioner is in custody pursuant to a valid conviction or whether the convicting court had proper jurisdiction. Mitchell v. State, 233 Ark. 578, 346 S.W.2d 201 (1961).
Furthermore, in the similar case of Webb v. Bishop, 242 Ark. 320, 413 S.W.2d 862 (1967) we held that a habeas corpus petition was not the correct way to attack a revocation of parole. “Such an attack must be by direct proceeding and not collateral, as was attempted by appellant Webb.” Webb, supra, See also Davis v. Mabry, 266 Ark. 487, 585 S. W.2d 949 (1979) where this Court ruled upon an inmate’s parole eligibility date after he had filed a “petition for declaratory judgment and mandamus” in circuit court.
The trial court’s dismissal of appellants’ writ of habeas corpus is affirmed.
Purtle, J., dissents. | [
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